United States of America v. Kenneth D. Sanders

* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio,
sitting by designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0196n.06
Filed: March 17, 2005
No. 03-6466
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH D. SANDERS,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: GUY and ROGERS, Circuit Judges; DOWD, District Judge. *
PER CURIAM. The defendant-appellant, Kenneth D. Sanders, stands convicted on his
guilty pleas to Count 1 and Count 5 of a six-count indictment. Count 1 charged the offense of
conspiring to manufacture in excess of fifty grams of methamphetamine in violation of 21 U.S.C.
§ 846. Count 5 charged a violation of 18 U.S.C. § 924(c). By reason of his status as a career
offender, Sanders received a sentence of 262 months for Count 1 and a consecutive sentence of 60
months for the § 924(c) violation. In light of the Supreme Court’s decision in United States v.
Booker, U.S. , 125 S.Ct. 738 (2005), the parties have filed an agreed motion to remand for re-
sentencing. Sanders, however, also continues to argue that the district court erred in denying his
motion to withdraw his guilty plea. As we find the district court did not err in denying Sanders’

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No. 03-6466
USA v. Sanders
motion to withdraw his guilty plea, we affirm his conviction; however, we vacate the sentence of
322 months and grant the joint motion to remand for re-sentencing. Our brief analysis follows.
Sanders’ guilty plea was entered on February 5, 2004, one day after the government had filed
its factual basis for the plea, stating in relevant part as follows:
On the evening of November 14, 2002, members of the Tennessee Highway
Patrol Criminal Investigation Division (CID) received information concerning a
“chop shop” in Grundy County, Tennessee. CID Agents proceeded to the residence
in Grundy County which belonged to Darren Rankin. Upon arriving at the residence,
officers observed the defendant, Kenneth Dale Sanders, doing something with a
vehicle. As the officers approached they noticed Sanders attempting to conceal an
item in his pants. A pat down was performed on Mr. Sanders and the pat down
revealed that Sanders was wearing a shoulder holster. Inside the holster was a
loaded Browning 9 mm semi-automatic firearm. A subsequent search of Sanders
revealed approximately one ounce of methamphetamine. Other items found at the
premises included: red phosphorous residue, acetone, red devil lye, brake cleaner,
and a formula for the manufacture of methamphetamine.
Mr. Sanders was advised of his rights, waived those rights and agreed to
make a statement. Sanders informed agents that he had the components to a
methamphetamine laboratory at his residence and gave permission to search his
residence. A search of Sanders’ residence revealed the following: numerous bags
containing red phosphorous, rubber tubing, foil, assorted glassware, funnels, and
stained coffee filters. These are items normally associated with the manufacture of
methamphetamine.
Mr. Sanders was interviewed by DEA Agent David Shelton. Sanders stated
that he had been cooking methamphetamine for at least two years. Sanders stated
that he had manufactured methamphetamine on a number of occasions and
occasionally would manufacture methamphetamine with other individuals. Sanders
also stated that he had procured necessary chemicals from other individuals,
sometimes in exchange for methamphetamine that he would “cook.”
If this case had proceeded to trial, the United States would have offered
evidence that the defendant has been manufacturing methamphetamine in the Grundy
County area for the past few years. Other individuals have implicated the defendant
in a conspiracy to manufacture methamphetamine and would have testified that they
had assisted the defendant in the manufacture of methamphetamine in Grundy
County, Tennessee, during the time frame listed in the conspiracy in the indictment.
Also, if this case had proceeded to trial the United States would have proven that the

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No. 03-6466
USA v. Sanders
defendant had manufactured well in excess of fifty grams during the time frame set
forth in the conspiracy. Finally, the United States would have offered expert
testimony to establish that the firearm possessed by the defendant on the day of his
arrest, November 14, 2002, was possessed in furtherance of the drug trafficking
crimes listed in the indictment.
(R. 22).
Sanders’ motion to withdraw his guilty plea was filed some 75 days after the guilty plea was
entered. Sanders argued that his original trial counsel should have filed a motion to suppress both
the items seized on the day of his arrest and the admissions he had made that day.
The district court carefully followed the provisions of Fed.R.Crim. P. 11 in taking Sanders’
guilty plea. After the motion to withdraw was filed, the district court spent considerable time
entertaining oral arguments on the motion before denying the same based on careful application of
the factors outlined in United States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003).
It is unnecessary to review the many decisions dealing with the denial of a motion to
withdraw a guilty plea. Rather, it is incumbent on the defendant to support his motion to withdraw
a guilty plea with a showing of a “fair and just reason for requesting the withdrawal,” as required
by Fed. R.Crim. P. 11(d)(2)(B). We find no published precedent for the proposition that a motion
to withdraw a guilty plea entered 75 days earlier can be supported, absent an assertion of actual
innocence, by the claim that a motion to suppress should have been filed. Moreover, numerous
unpublished decisions state the contrary. See, e.g., United States v. Jones, No. 03-1035, 74 Fed.
Appx. 664, 2003 WL 22048155, at * 3 (7th Cir. Aug. 27, 2003); United States v. Quijada, No. 01-
3048, 40 Fed. Appx. 344, 2002 WL 1784706, at *1 (8th Cir. Aug. 5, 2002) (per curiam); United
States v. Marholz, No. 95-50366, 1996 WL 285704, at * 1 (9th Cir. May 29, 1996); United States

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No. 03-6466
USA v. Sanders
v. Hudak, No. 02CR853, 2003 WL 22170606, at * 5 (S.D.N.Y. Sept. 19, 2003); United States v.
Schmidt, No. 5:02CR0227, 2003 WL 22225583, at * 2-3 (N.D.N.Y. Aug. 13, 2003).
We AFFIRM the convictions for Counts 1 and 5, and REMAND for re-sentencing.

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