United States of America v. Julio Valdez

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0094P (6th Cir.)
File Name: 04a0094p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIO VALDEZ,
Defendant-Appellant.
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No. 02-3043
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 00-00756—David A. Katz, District Judge.
Argued: January 27, 2004
Decided and Filed: April 2, 2004
Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Matthew M. Robinson, Cincinnati, Ohio, for
Appellant. Jeffrey P. Singdahlsen, UNITED STATES
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,
Washington, D.C., for Appellee. ON BRIEF: Matthew M.
Robinson, Cincinnati, Ohio, for Appellant. Louis M. Fischer,
2 United States v. Valdez No. 02-3043
UNITED STATES DEPARTMENT OF JUSTICE,
CRIMINAL DIVISION, Washington, D.C., for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. After pleading guilty prior to trial in
the United States District Court for the Northern District of
Ohio to one count of conspiring to possess cocaine with the
intent to distribute in violation of 21 U.S.C. §§ 841 and 846,
Julio Valdez moved to withdraw his plea on the ground that
he did not understand the quantity of drugs which he had
admitted possessing. The district court denied that motion
and sentenced Valdez to 192 months’ imprisonment followed
by five years of supervised release. Because Valdez’s guilty
plea was voluntary and the district court did not abuse its
discretion in denying his motion to withdraw the plea, we
AFFIRM his conviction and sentence. We refuse to entertain
Valdez’s claim of ineffective assistance of counsel as unripe
for review.
I
On September 5, 2000, a grand jury sitting in the Northern
District of Ohio returned a multi-count indictment against
numerous Defendants, including Defendant Julio Valdez.
The grand jury charged Valdez with conspiracy to distribute
and possess with intent to distribute cocaine, cocaine base and
marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count 1); knowingly and intentionally possessing with the
intent to distribute approximately 80.79 grams of cocaine in
violation of 21 U.S.C. § 841(a)(1) (Count 15); and knowingly
and intentionally possessing with the intent to distribute
approximately 12.12 grams of cocaine in violation of
21 U.S.C. § 841(a)(1) (Count 16). Count 1 of the indictment
did not ascribe a specific amount of cocaine or cocaine base
to Valdez, although it described a drug conspiracy

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No. 02-3043 United States v. Valdez 3
masterminded by David Trinidad Gonzalez, who allegedly
had obtained over 500 kilograms of cocaine and over 10
kilograms of cocaine base. The indictment explained that
Gonzalez distributed those drugs through many of his family
members, relatives and associates, including Defendant
Valdez and ten others.
In August 2001, Valdez agreed via a written plea agreement
to plead guilty to the conspiracy count (Count 1), in exchange
for the government’s agreement to drop Counts 15 and 16 and
not to oppose a three-point reduction in the applicable
sentencing guideline offense level for Valdez’s acceptance of
responsibility. The agreement stated, in part:
By signing this agreement, the defendant admits 1) that
the conspiracy in Count 1 of the indictment existed, and
that he knowingly and voluntarily joined the conspiracy,
and that the purpose of the conspiracy in Count One was
to knowingly and intentionally distribute, and possess
with intent to distribute, cocaine.
* * *
The government and the defendant agree and stipulate to
the following statement of facts and applicable
sentencing guideline factors:
1. That the defendant conspired to possess
with intent to distribute at least 50 but less
than 150 kilograms of cocaine (Base
Offense Level 36).
(J.A. 102, ¶¶ 3, 7.) The agreement further noted that Valdez
had read the plea agreement, that he had an opportunity to
discuss it with his attorney, that he fully understood the
agreement and that he was signing the agreement voluntarily.
On August 30, 2001, the district court conducted Valdez’s
plea proceedings pursuant to Rule 11 of the Federal Rules of
4 United States v. Valdez No. 02-3043
1The Joint A ppe ndix d oes not contain a complete version of the plea
proceedings. Citations to “Tr.” are to the complete transcript obtained
from the district court.
Criminal Procedure. The court noted the terms of the plea
agreement and also that “the parties have stipulated that the
defendant conspired to possess with intent to distribute at
least 50 kilograms but not less than 150 kilograms of cocaine,
that being a base level of 36.” (Tr. at 3.)1 During the court’s
colloquy to determine Valdez’s competence to withdraw his
guilty plea, Valdez informed the court that he had attended up
to the eighth grade in school and could read and write
English. He also told the court that he was in good physical
health and had not taken any medication in the last two days
that would impair his ability to understand what was
happening around him. After the court found Valdez
competent, Valdez told the court that he was satisfied with his
attorney’s efforts and advice up to that point in time and that
he had read the indictment and discussed it with his attorney.
Valdez’s attorney stated that he had no doubt that Valdez
completely understood the charges against him. Among other
things, the court told Valdez that by entering a guilty plea, he
would be admitting his guilt and waiving certain rights,
including the right to have the government “prove you guilty
by competent evidence beyond a reasonable doubt.” (Tr. at
14.) Valdez stated that he understood the rights he would be
foregoing.
The court again asked Valdez whether he had read the plea
agreement and gone over it with his attorney, to which Valdez
responded affirmatively. The court then had the following
exchange with Valdez:
THE COURT: In paragraph No. 7 [of the plea
agreement], it reads: The government and the defendant
agree and stipulate to the following statement of facts
and applicable guideline sentencing factors:

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No. 02-3043 United States v. Valdez 5
One, that the defendant conspired to possess with
intent to distribute at least 50 but less than 150 kilograms
of cocaine[,] base offense level 36. Do you understand
that?
DEFENDANT VALDEZ: Yes, I do.
THE COURT: And do you agree and stipulate to
that paragraph?
DEFENDANT VALDEZ: Yes, I do.
(Tr. at 17.) The court then told Valdez that it could not
determine his sentencing guideline range with certainty, but
that it expected to impose a sentence between 135 and 181
months, depending upon Valdez’s criminal history. The court
accepted the plea agreement and confirmed that Valdez had
not been threatened or induced to plead guilty and had agreed
to plead guilty after consultation with his attorney and family.
After accepting the plea agreement, the court asked the
prosecutor to articulate the factual underpinning for Valdez’s
plea. The prosecutor stated, in relevant part:
With regard to Julio Valdez, the evidence will show
that he … joined the conspiracy in question and he was
… given and sold to him amounts of cocaine as set forth
in the factual stipulation, 50 to 150 kilograms and that he
received this cocaine from Mr. David Gonzalez and from
other couriers who transported it to him in Adrian and
Ohio and in Marion, Ohio. Mr. Valdez then resold the
cocaine that he received in Adrian, Michigan, and in
Marion, Ohio, and also had a set of or a group of persons
that he sold to including Doug Ackerman and other
persons named and unnamed in the indictment in
question.
And the evidence would further show that …
defendant[] knowingly and voluntarily joined the
conspiracy knowing full well its objects and its purpose.
6 United States v. Valdez No. 02-3043
(Tr. at 22.) In response to the court’s inquiries, Valdez stated
that he had heard the prosecutor’s statement and that he
neither had any disagreement with it nor wished to add
anything to it. Valdez then formally pleaded guilty to Count
1 of the indictment, which the court accepted. A presentence
investigation was ordered.
On November 13, 2001, Valdez filed a motion to vacate his
plea, claiming that he did not fully understand the crime to
which he had pleaded guilty. In a handwritten affidavit,
Valdez explained that he did not appreciate the distinction
between “grams” of cocaine and the “kilograms” of cocaine
referenced in his plea agreement and at the plea proceedings.
On December 10, 2001, the court denied Valdez’s motion to
vacate his plea, reasoning that Valdez had not offered an
explanation for the 75 days that had elapsed between Valdez’s
plea and his motion to withdraw. The court further noted that
the circumstances surrounding the plea did not weigh in favor
of a withdrawal because, inter alia, Valdez had stated at the
plea hearing that he reads and writes English, that he had read
and understood the indictment and that he had discussed the
indictment with his attorney. Last, the court noted the
“distinct possibility of substantial prejudice to the
Government” if a withdrawal were allowed because “the
recollections of witnesses may not be as fresh now” and
because “substantial time and money would need to be spent
in preparation for and execution of a trial.”
Valdez’s sentencing hearing took place on December 21,
2001. Valdez repeated his claim that he did not understand
that he had pleaded guilty to possessing with intent to
distribute kilogram (as opposed to gram) amounts of cocaine.
The court rejected this argument, having already rejected his
motion to withdraw his plea. The court then went over
Valdez’s presentence report which had indicated a base
offense level of 36 and a criminal history category of 6, which
put him in the guideline range of 235 to 293 months. The
court reduced Valdez’s criminal history category to 4 after
accepting Valdez’s argument that most of his criminal history

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No. 02-3043 United States v. Valdez 7
pertained to driving offenses. The court also reduced
Valdez’s base offense level by 3 levels for his acceptance of
responsibility, reducing the sentencing range to 188 to 235
months. The court then sentenced Valdez to 192 months of
imprisonment followed by a term of five years’ supervised
release. This appeal ensued.
II
A. Valdez’s Guilty Plea Was Knowing and Voluntary.
This Court may hear a direct appeal to a plea proceeding
conducted pursuant to Rule 11 of the Federal Rules of
Criminal Procedure. United States v. Van Buren, 804 F.2d
888, 890 (6th Cir. 1986). Because Valdez attempted to
withdraw his plea in the district court on the basis that it was
not voluntary, the harmless error standard applies. United
States v. Vonn, 535 U.S. 55, 62-63 (2002). The Court reviews
such proceedings for substantial compliance with Rule 11,
vacating a plea only when substantial rights of the defendant
have been affected. United States v. Stead, 746 F.2d 355,
356-57 (6th Cir. 1984); see also Fed. R. Crim. P. 11(h) (“A
variance from the requirements of this rule is harmless error
if it does not affect substantial rights.”). Cf. Vonn, 535 U.S.
at 63 (noting that, in contrast to harmless error review, plain
error review puts the burden of proving a deprivation of
substantial rights on the defendant and further requires the
defendant to persuade the court that the error “seriously
affected the fairness, integrity or public reputation of judicial
proceedings”) (internal quotation marks, punctuation and
citations omitted).
Rule 11 of the Federal Rules of Criminal Procedure
requires that, before a court accepts a guilty plea, it must
insure that the defendant understands, inter alia, “the nature
of each charge to which the defendant is pleading.” Fed. R.
Crim. P. 11(b)(1)(G). See also Henderson v. Morgan, 426
U.S. 637, 645 (1976) (“[C]learly the plea could not be
voluntary in the sense that it constituted an intelligent
8 United States v. Valdez No. 02-3043
admission that he committed the offense unless the defendant
received real notice of the true nature of the charge against
him, the first and most universally recognized requirement of
due process.’”) (quoting Smith v. O'Grady, 312 U.S. 329, 334
(1941)). Because a guilty plea involves the admission of “‘all
the elements of a formal criminal charge,’” United States v.
Syal, 963 F.2d 900, 904 (6th Cir. 1992) (quoting McCarthy v.
United States, 394 U.S. 459, 466 (1969)), the accused “must
have knowledge of all those elements.” Id.
“In a simple case the district court may need only to read
the indictment and allow the defendant to ask questions about
the charge.” Syal, 963 F.2d at 904-05 (citingVan Buren, 804
F.2d at 892). “When the case is more complex, further
explanation may be required. In any case the district court
must be satisfied, after discussion with the defendant in open
court, that the defendant understands the elements of the
offense.” Id. at 905 (citing Van Buren, 804 F.2d at 891). At
a minimum, the defendant must understand the “critical” or
“essential” elements of the offense to which he or she pleads
guilty. See Bousley v. United States, 523 U.S. 614, 618-19
(1998) (observing that defendant’s plea would be
“constitutionally invalid” if “neither he, nor his counsel, nor
the court correctly understood the essential elements of the
crime with which he was charged”) (emphasis added);
Henderson, 426 U.S. at 647 n.18 (“There is no need in this
case to decide whether notice of the true nature, or substance,
of a charge always requires a description of every element of
the offense; we assume it does not. Nevertheless, intent is
such a critical element of the offense of second-degree
murder that notice of that element is required.”) (emphasis
added).
Rule 11(b)(1)(G)’s requirement that a defendant understand
the essential elements of the crime is integrally related to Rule
11(b)(3)’s requirement that the district court determine that
the plea has a factual basis. “[B]ecause a guilty plea is an
admission of all the elements of a formal criminal charge, it
cannot be truly voluntary unless the defendant possesses an

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No. 02-3043 United States v. Valdez 9
understanding of the law in relation to the facts.” McCarthy,
394 U.S. at 466 (citation omitted). “Thus, in addition to
directing the judge to inquire into the defendant's
understanding of the nature of the charge and the
consequences of his plea, Rule 11 also requires the judge to
satisfy himself that there is a factual basis for the plea.” Id. at
467. See also Fed. R. Crim. P. 11(b)(3) (requiring district
court to determine whether there is a factual basis for a plea
before entering judgment on plea).
Valdez pleaded guilty to violating 21 U.S.C. § 846
(conspiracy) and § 841(a) (knowingly or intentionally
possessing cocaine with the intent to distribute). A violation
of § 841(a) involving 50 to 150 kilograms of cocaine carries
a maximum penalty of life imprisonment, 21 U.S.C.
§ 841(b)(1)(A), whereas an offense involving 50 to 150
grams of cocaine carries a maximum sentence of 20 years
imprisonment. 21 U.S.C. § 841(b)(1)(C). Although the
amount of cocaine involved in a violation of § 841(a) is an
enhancement element of the offense, this element is treated no
differently than the traditional elements of a § 841(a)
violation for purposes of determining whether a plea was
knowing and voluntary. See United States v. Leachman, 309
F.3d 377, 384 (6th Cir. 2002) (noting that the enhancement
elements of a violation of § 841 are not to be treated
differently “than the more traditional elements of the offense,
such that their treatment is anything more than a mirror image
of the treatment of the other elements”; holding that the right
to have the amount of drugs proved to a jury beyond a
reasonable doubt can be waived upon pleading guilty to a
§ 841(a) violation in the same way that the trial of the
traditional elements can be waived). Also cf. Harris v. United
States, 536 U.S. 545, 557 (2002) (“Apprendi [v. New Jersey,
530 U.S. 466 (2000)] said that any fact extending the
defendant’s sentence beyond the maximum authorized by the
jury’s verdict would have been considered an element of an
aggravated crime--and thus the domain of the jury--by those
who framed the Bill of Rights.”). Thus, prior to accepting
Valdez’s plea, the trial court should have ensured that Valdez
10 United States v. Valdez No. 02-3043
2Van Buren involved a defendant who had pleaded guilty to the
unlawful use of a telep hone to comm it or facilitate a conspiracy to possess
with intent to distribute cocaine. At his Rule 11 proceeding, the defendant
had been read the indictment and then asked if there was anything further
he wanted to know about the charge. This Court held that reading the
indictment to the defendant and the defendant’s subsequent admission of
guilt was not sufficient to sustain the plea bec ause “[t]o fully understand
the charge against him, defendant must have understood wha t it meant to
be a member of a conspiracy and to act in furtherance o f that conspiracy.”
Van Buren, 804 F.2d at 89 2. The Co urt faulted the Rule 11 proceed ings
because the defendant had not been informed of the nature of the
conspiracy and the district judge “did not inquire of defendant if he
understood what a conspiracy was.” Id. at 891. Accord United States v.
Bickerstaff, No. 97-3449, 1998 W L 552834, at *4 (6th Cir. Aug. 13,
1998) (unpublished; vacating plea to drug conspiracy count due to lack
of a sufficient factual basis under Rule 11 because the court did not
explain to the defendant what it meant to be a member of a conspiracy
and to act in furtherance of that conspiracy). This portion of the holding
in Van Buren is not relevant in this case. Unlike the defendant in Van
Buren, Valdez has not argued that his plea was involuntary on the ground
that he did not understand what a conspiracy is or his role in the
conspiracy. He has not contested the fact that he participated in a
conspiracy, only the q uantity of d rugs attrib utable to him.
understood each element of the offense, including the
essential element of drug quantity which increased the
maximum penalty for the crime.
The facts of this case unquestionably show that the trial
court ensured Valdez understood the drug quantity to which
he pleaded guilty because the amount of drugs had been
raised no less than four times before the trial court accepted
Valdez’s plea. In Van Buren, supra, this Court noted:
Where the crime is easily understood, several courts have
held that a reading of the indictment, or even a summary
of the charges in the indictment and an admission by the
defendant, is sufficient to establish a factual basis under
Rule 11.
804 F.2d at 892 (citations omitted).2 Valdez’s crime was
“easily understood.” This Court is not aware of any authority,

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No. 02-3043 United States v. Valdez 11
nor has Valdez pointed to any, suggesting that a common
drug possession and distribution crime becomes complex
simply when the amount of drugs is an element of the case.
Valdez has provided this Court with no evidence or legal
authority to overcome the common sense presumption that a
competent layperson who can read and write in English,
particularly a layperson who by his own admission is familiar
with drug transactions, can understand the significant
distinction – both in terms of mass and dollar value –
between grams and kilograms of cocaine.
Since Valdez’s crime was not complex, his guilty plea
complied with Rule 11, as long as Valdez was provided with
a sufficient summary of the charges against him. He was. At
Valdez’s plea hearing, the government summarized the drug
conspiracy charges, stating that Valdez intentionally and
knowingly had joined a conspiracy; purchased and received
50 to 150 kilograms of cocaine from David Gonzalez and
from other couriers in Adrian, Michigan and Marion, Ohio;
and resold the cocaine in Adrian, Michigan, and in Marion,
Ohio, to Doug Ackerman and others. Valdez then expressed
his agreement with the government’s brief summary, thereby
admitting his guilt. Valdez was informed on three other
occasions (in the plea agreement and two other times during
the plea colloquy) that he was being charged with possessing
with the intent to distribute 50 to 150 “kilograms” of cocaine.
On two of those occasions, Valdez confirmed the correctness
of the amounts in response to the court’s inquiries.
Accordingly, Valdez’s plea complied with Rule 11 because he
was adequately informed of the easily understandable charges
against him before pleading guilty.
This Court previously has applied Van Buren to similar
facts as those presented by Valdez and declined to find a
reversible Rule 11 violation. See Leachman, 309 F.3d at 384-
86 (rejecting request to vacate plea of guilty to violations of
§§ 841 and 846 because the amount of drugs was reflected in
the defendant’s indictment, the plea was not coerced, and the
defendant “implicitly” had agreed to the amount of drugs
12 United States v. Valdez No. 02-3043
involved during a colloquy with the judge; holding that
defendant “knowingly and voluntarily waived his
constitutional rights to a jury and to proof beyond a
reasonable doubt of the amount of drugs specified against
him”); United States v. Baez, 87 F.3d 805, 810 (6th Cir. 1996)
(holding that district court did not violate Rule 11 in
accepting guilty plea for violation of §§ 841 and 846 because
“the plea agreement’s written description of the essential facts
underlying the charge supports a finding of guilty” and
because of “the defendant’s express acknowledgement of the
accuracy of the agreement’s provisions”); United States v.
Edgecomb, 910 F.2d 1309, 1313 (6th Cir. 1990) (finding no
Rule 11 violation when defendants pleaded guilty to
conspiracy to violations of §§ 841 and 846 after the
government had read the facts constituting the conspiracy and
the court had recited the count of the indictment and had
confirmed that defendants understood the charges against
them; holding that the district court was not required to
specifically determine whether the defendant had understood
the charged offense which was “simple enough for a lay
person to understand”).
Further, the Supreme Court has observed that as long as a
defendant is provided a copy of his indictment prior to
pleading guilty (as Valdez was), there is a “presumption that
the defendant was informed of the nature of the charge against
him.” Bousley, 523 U.S. at 618 (citing Henderson, 426 U.S.
at 650 (1976) (White, J., concurring)). Relying on the
Bousley presumption, the Eighth Circuit Court of Appeals
rejected a Rule 11 challenge identical to Valdez’s – the
district court’s alleged failure to inform the defendant that the
government would be required to prove the quantity of the
controlled substances beyond a reasonable doubt. United
States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001). That court
was persuaded by the facts that (a) the trial court had advised
the defendant of the quantity of controlled substances alleged
in the indictment and the sentencing range based on those
quantities and (b) the defendant pleaded guilty to those
amounts stated in the indictment. Id. at 740. Similarly, in

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No. 02-3043 United States v. Valdez 13
this case, Valdez was advised of the quantity of cocaine to
which he pleaded guilty and the sentencing range for such a
plea; Valdez then pleaded guilty.
Arguably, the Eighth Circuit’s Perez is inapposite because
it involved a plain error standard of review, whereas here the
less rigorous harmless error standard applies due to Valdez’s
attempt to withdraw his guilty plea prior to sentencing. Two
panels of the Ninth Circuit Court of Appeals recently reached
opposite results on facts similar to Perez primarily because of
the different standards of review applicable in those cases.
Compare United States v. Villalobos, 333 F.3d 1070, 1074
(9th Cir. 2003) (applying harmless error standard because
defendant challenged drug quantity at sentencing hearing;
vacating plea of guilty to violations of §§ 841(a) and 846,
even though the defendant had pleaded guilty and stipulated
in his plea agreement to the drug amount; holding that district
court violated Rule 11 by not informing the defendant that the
government would have to prove the quantity of drugs, an
element that would enhance the maximum penalty for the
crime, beyond a reasonable doubt) with United States v.
Minore, 292 F.3d 1109, 1120 (9th Cir. 2002) (applying plain
error standard; holding that the district court erred under Rule
11 by failing to advise defendant that the government must
prove the quantity of drugs beyond a reasonable doubt when
the quantity would expose defendant to a higher maximum
sentence, but affirming conviction and sentence because
defendant admitted in his plea agreement, during his plea
colloquy and at his sentencing hearing that he was responsible
for the quantity of drugs); see also United States v. Wallace,
276 F.3d 360, 369 (7th Cir. 2002) (applying plain error
review; noting that there was error in defendant’s indictment
and in the plea colloquy because he was not informed that the
government would have to prove drug quantity beyond a
reasonable doubt; affirming conviction and sentence because
the defendant “never denied” his involvement with the drug
quantity at issue).
14 United States v. Valdez No. 02-3043
If this Court were to follow Ninth Circuit precedent, Valdez
would have a strong argument that, notwithstanding his
repeated admission to possessing with the intent to distribute
kilogram amounts of cocaine, he “could not properly evaluate
the risks of entering the plea agreement, and could not
intelligently and voluntarily plead guilty,” because the district
court did not inform him that the government needed to prove
drug quantity beyond a reasonable doubt. Villalobos, 333
F.3d at 1075. But we sit in the Sixth Circuit, not the Ninth
Circuit. To vacate Valdez’s conviction under Ninth Circuit
precedent would result in an irreconcilable conflict with the
prior rulings of this Court. We therefore hold that the district
court complied with Rule 11.
B. The District Court Did Not Abuse Its Discretion in
Denying Valdez Permission to Withdraw His Guilty
Plea.
The permission to withdraw a guilty plea prior to
sentencing is a matter within the broad discretion of the
district court. United States v. Goldberg, 862 F.2d 101, 103
(6th Cir. 1988). Accordingly, this Court reviews a district
court’s refusal to permit a defendant to withdraw his or her
guilty plea for an abuse of discretion. Id. at 104.
A defendant may withdraw a guilty plea after the district
court accepts a plea, but before sentencing, if the defendant
can show “a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The Court may
consider the following factors, among others, in deciding
whether to grant permission to withdraw a guilty plea:
(1) whether the movant asserted a defense or whether he has
consistently maintained his innocence; (2) the length of time
between the entry of the plea and the motion to withdraw;
(3) why the grounds for withdrawal were not presented to the
court at an earlier time; (4) the circumstances underlying the
entry of the plea of guilty, the nature and the background of
a defendant and whether he has admitted his guilt; and
(5) potential prejudice to the government if the motion to

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No. 02-3043 United States v. Valdez 15
withdraw is granted. Goldberg, 862 F.2d at 103-04; accord
United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996).
“The factors listed are a general, non-exclusive list and no one
factor is controlling.” Id.
The district court denied Valdez’s motion to withdraw his
plea, reasoning that (1) Valdez had not offered an explanation
for the 75 days that had elapsed between his plea and his
motion to withdraw, (2) the circumstances surrounding the
plea suggested that Valdez had understood the indictment,
which he had discussed with his attorney, and (3) the
government might be prejudiced by the stale recollections of
witnesses and the need to expend time and money trying the
case.
This Court disagrees with the district court’s third stated
reason, because there appeared to be no factual basis for the
court to find that a few months’ delay created by Valdez’s
guilty plea and subsequent withdrawal would have prejudiced
the government. The government always has to spend time
and money trying a case, so this “prejudice” is irrelevant on
these facts. There also was no finding in the record that key
witnesses were no longer available or that the few months’
delay had hindered their ability to remember key events.
Nevertheless, the Court agrees with the first two reasons
stated by the district court. First, Valdez’s unjustified 75-day
delay, alone, supported the court’s denial of a motion to
withdraw. See United States v. Durham, 178 F.3d 796, 798-
99 (6th Cir. 1999) (“The strongest factor supporting the
district court’s denial of Durham’s motion is the length of
time between Durham’s plea and the filing of his motion to
withdraw. Durham waited approximately seventy-seven days
to file his motion after entering his guilty plea.”); Baez, 87
F.3d at 808 (“The strongest factors supporting the district
court’s ruling are the sixty-seven day delay between the
motion and the plea, and Baez’s failure to justify this
extensive delay.”).
16 United States v. Valdez No. 02-3043
Second, the circumstances surrounding Valdez’s plea
strongly suggest that he did appreciate the crime to which he
was pleading guilty and the likely sentence range to which he
would be subjected. As noted above, Valdez’s alleged
criminal conduct was described at least four times prior to the
entry of his guilty plea. On three of those occasions, Valdez
affirmatively assented to the description of his conduct,
including the quantity of drugs that he allegedly possessed.
There is no dispute that Valdez was competent at the time of
his plea, that he had not been coerced to plead guilty, that he
read and understood English and that he had discussed the
indictment and the plea with his attorney, who, according to
Valdez, had provided him with satisfactory advice. Because
Valdez has presented no persuasive reason for such a lengthy
delay in bringing his motion to withdraw and because there is
no evidence of unusual circumstances surrounding his plea,
the Court sees no basis to hold that the district court abused
its discretion.
C. Valdez’s Claim of Ineffective Assistance of Counsel Is
Not Ripe for Judicial Review.
Valdez argues that he was denied effective assistance of
counsel because his trial attorney failed to make clear that
Valdez was pleading guilty to kilogram drug amounts rather
than grams. In theory, claims of ineffective assistance of
counsel can be raised on direct review. Massaro v. United
States, 538 U.S. 500, ___, 123 S.Ct. 1690, 1696 (2003).
Typically, direct review is appropriate where “trial counsel’s
ineffectiveness is so apparent from the record that appellate
counsel will consider it advisable to raise the issue on direct
appeal.” Id. Here, Valdez’s trial counsel’s alleged
ineffectiveness is not apparent from the record. There is little
evidence in the record regarding what advice, if any, Valdez’s
trial counsel provided with regard to drug quantity, only
Valdez’s assertion that he did not understand the distinction
between grams and kilograms. Such facts are more
appropriately developed at the district court level. See United
States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997) (“‘The

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No. 02-3043 United States v. Valdez 17
more preferable route for raising an ineffective assistance of
counsel claim is in a post-conviction proceeding under
28 U.S.C. § 2255,’ whereby the parties can develop an
adequate record.”) (quoting United States v. Carr, 5 F.3d 986,
993 (6th Cir. 1993)). Accordingly, the Court declines to
entertain the merits of Valdez’s claim of ineffective assistance
of counsel.
III
For all the foregoing reasons, the Court AFFIRMS
Valdez’s conviction and sentence.

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