688 F. App'x 337
6th Cir.2017Background
- In 2014 Schuhe paid for a 16-year-old girl to fly from Tennessee to California and engaged in illegal sexual activity; he planned another trip in November 2014.
- A federal grand jury charged Schuhe with transportation of a minor for criminal sexual activity (Count One) and attempted transportation of a minor for criminal sexual activity (Count Two) under 18 U.S.C. § 2423.
- Schuhe entered a written guilty plea to Count One pursuant to a plea agreement; the government agreed to dismiss Count Two and to move for an additional one-level reduction under USSG § 3E1.1(b).
- Ten months after pleading guilty, Schuhe moved under Fed. R. Crim. P. 11(d)(2)(B) to set aside the plea agreement so he could plead to both counts unbound by the agreement.
- The district court denied the motion; at sentencing the court imposed a within-Guidelines term of 235 months. Schuhe appealed the denial of his motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schuhe showed a "fair and just reason" to withdraw his plea under Rule 11(d)(2)(B) | Schuhe argued the plea was unenforceable and lacked consideration, so he should be allowed to withdraw despite not asserting innocence | Government argued Bashara factors show no fair and just reason: long delay, no valid justification, knowing voluntary plea, prior convictions, and pleaded guilty | Denied — district court did not abuse discretion; ten-month delay, no reason for delay, valid plea, and other Bashara factors weigh against withdrawal |
| Whether dismissal of Count Two and waiver of appellate rights lacked consideration | Schuhe argued dismissal and appellate waiver gave him no benefit | Government pointed to the one-level § 3E1.1(b) reduction as sufficient consideration | Held — one-level reduction is sufficient consideration; plea supported by adequate consideration |
| Whether plea promises were illusory due to prosecutorial discretion language | Schuhe argued the government retained discretion rendering promises empty | Government noted Schuhe did not raise this below; the government in fact moved for the § 3E1.1(b) reduction | Plain-error review failed — no reversible error because government performed as promised |
| Whether government breached plea by referencing Count Two conduct or seeking upward variance | Schuhe argued breach because government referred to conduct and sought variance | Government observed plea did not bar arguing aggravating factors and sentencing considers full scope of conduct | Plain-error review failed — plea did not prohibit such arguments, and district court denied variance; no breach found |
Key Cases Cited
- United States v. Giorgio, 802 F.3d 845 (6th Cir.) (standards for reviewing plea-withdrawal delay)
- United States v. Catchings, 708 F.3d 710 (6th Cir.) (Bashara factors for plea withdrawal)
- United States v. Bashara, 27 F.3d 1174 (6th Cir.) (enumerating factors for Rule 11(d)(2)(B))
- United States v. Dixon, 479 F.3d 431 (6th Cir.) (knowing and voluntary plea standard)
- United States v. Valdez, 362 F.3d 903 (6th Cir.) (delay alone can justify denial of withdrawal)
- United States v. Hunter, [citation="316 F. App'x 470"] (6th Cir.) (one-level § 3E1.1(b) reduction constitutes sufficient consideration)
- United States v. Droganes, 728 F.3d 580 (6th Cir.) (plain-error review where motion not raised below)
- United States v. Barrett, 890 F.2d 855 (6th Cir.) (government bound only to promises made in plea agreement)