No Waiver of Plea-Withdrawal Review Absent a Court Invitation to Renew; Summary Denial Permissible When the Record Defeats the Bashara Factors
1. Introduction
In United States v. Trent Carey, the Sixth Circuit addressed two recurring issues in federal plea practice: (1) when a defendant has waived appellate review of a motion to withdraw a guilty plea, and (2) whether a district court abuses its discretion by denying an orally raised, pro se withdrawal request without conducting a “full hearing.”
Parties and charges. The United States prosecuted Trent A. Carey, who pleaded guilty to five counts, including felon-in-possession, drug-trafficking counts, and possession of a firearm in furtherance of a drug offense.
Key factual arc. Carey pleaded guilty after a plea colloquy in which the district judge warned him that once the plea was accepted he would not be able to later say “I made a mistake, I want a trial.” Approximately three months later—at the initial sentencing setting—Carey orally asked to withdraw his plea, citing “insufficient counsel,” after learning his lawyer had not reviewed the PSR and was dealing with a medical situation. The district court denied the withdrawal request on the spot, but appointed new counsel “for purposes of sentencing only.”
Issues on appeal. Carey argued the district court should have held a hearing on his withdrawal request and that the United States v. Bashara factors favored withdrawal. The government argued Carey had waived the issue by failing to renew the motion.
2. Summary of the Opinion
The Sixth Circuit affirmed. It held:
- No waiver: Carey preserved the issue by orally requesting plea withdrawal; he did not waive appellate review because the district court did not invite him to renew or refile the motion (distinguishing cases where renewal was encouraged).
- No abuse of discretion in denying without a full hearing: Although fuller explanation is preferred and oral pro se motions call for more inquiry, summary denial is permissible when the record shows the motion is meritless.
- Bashara factors strongly against withdrawal: The 98-day delay, lack of a valid reason for delay (given the plea colloquy’s warning), repeated admissions, and the knowing and voluntary plea colloquy outweighed any arguments for withdrawal; prejudice to the government was therefore irrelevant.
3. Analysis
A. Precedents Cited
The opinion is best read as synthesizing Sixth Circuit doctrine across three clusters: (1) preservation/waiver, (2) procedural expectations for plea-withdrawal rulings, and (3) the substantive Bashara factor framework.
1) Preservation vs. waiver
- Fed. R. Crim. P. 51(b) (rule text): The panel treated an oral request—“informing the court … of the action the party wishes the court to take”—as sufficient to preserve the issue.
- United States v. Carter (quoting United States v. Olano): Provided the definition of waiver as an “intentional relinquish[ment] or abandon[ment]” of a known right, establishing the conceptual boundary between mere failure to press an issue and true waiver.
- United States v. Saucedo: Supplied the consequence of waiver—“forever foreclosed” on appeal—underscoring why the waiver inquiry is outcome-determinative.
- United States v. Brown: Supported the conclusion that a pro se oral objection can preserve an issue for appeal.
- United States v. Hoff and United States v. Smith (per curiam): The government relied on these for a “renewal” requirement; the panel limited them to situations where the district court encourages renewal. Because the district court here did not invite a renewed motion, the panel declined to find waiver.
Doctrinal clarification. The practical takeaway is not that renewal is never needed, but that—within this line of Sixth Circuit cases—renewal becomes critical only when the district judge signals that the defendant should refile or renew, and then the defendant declines to do so.
2) Whether a “full hearing” is required
- United States v. Alexander (per curiam): The court drew two principles: (a) district courts should state reasons and avoid “marginal entries,” but (b) summary denial is permissible when “the face of the record” shows the motion is meritless. Carey falls into the second category.
- United States v. Martin: Added that when a plea-withdrawal motion is raised pro se and orally, the district court “should inquire more thoroughly” and offer an opportunity to confer with counsel. The panel treated this as a preference rather than a rigid requirement, again anchored by the record’s clarity.
- United States v. Troutman: Carey used this as a remand analogy. The panel distinguished it because the district court in Troutman misconstrued the motion and because judicial economy supported remand there; neither consideration applied in Carey.
3) The substantive standard: “fair and just reason” and the Bashara framework
- Fed. R. Crim. P. 11(d)(2)(B): Governs presentence plea withdrawal upon a showing of a “fair and just reason.”
- United States v. Triplett: Emphasized the defendant’s burden to show withdrawal should be granted.
- United States v. Bashara: Source of the seven-factor test; the panel applied those factors through the lens of later Sixth Circuit decisions.
- United States v. Goddard: Restated the Bashara factors and supplied the standard of review (abuse of discretion); it also reiterated that no one factor is controlling.
- United States v. Bazzi: Used to reinforce that the factors are non-exclusive and non-dispositive individually.
- United States v. Ellis (quoting United States v. Morrison): Countered Carey’s attempt to characterize Rule 11(d)(2)(B) as “liberal,” stressing the Sixth Circuit’s caution that when guilt is admitted and the plea is knowing and voluntary, “the occasion for setting aside a guilty plea should seldom arise.” Ellis also supports treating government prejudice as irrelevant when the other factors do not favor withdrawal.
- United States v. Benton and United States v. Graham: Supported the conclusion that even substantially shorter delays than Carey’s 98 days weigh against withdrawal.
- United States v. Dixon: Provided the yardstick for “asserted innocence”—the defendant must “consistently and vigorously” maintain innocence; Carey’s partial, belated reframing (“recreational” gun possession) fell short.
- United States v. Lee: Provided the curative principle: a proper plea colloquy “generally cures” misunderstandings about the implications of the plea.
- United States v. Willis: Supported the panel’s treatment of education/competency considerations under the “nature and background” factor.
- United States v. Owens: Supported the point that prior criminal justice experience typically weighs against withdrawal.
B. Legal Reasoning
1) Standard of review drives deference
The court began with United States v. Goddard: denial of plea withdrawal is reviewed for abuse of discretion. That lens matters because Carey’s arguments were less about legal eligibility (Rule 11(d)(2)(B) applies) and more about whether the district court’s call was unreasonable given the record. The panel framed abuse of discretion as reliance on clearly erroneous facts, misapplication of law, or an erroneous legal standard.
2) No waiver: preservation occurred when Carey made the request
Applying Fed. R. Crim. P. 51(b), the panel treated Carey’s oral request—made at the sentencing hearing—as sufficient to preserve the issue. It rejected the government’s waiver theory by distinguishing United States v. Hoff and United States v. Smith: those cases require renewal only when the district court encourages it. Here, the district court denied the motion and limited new counsel to sentencing, without inviting a renewed plea-withdrawal motion; thus, there was no intentional abandonment under United States v. Carter/United States v. Olano.
3) No “full hearing” required when the record makes the result apparent
The panel acknowledged the preference—drawn from United States v. Alexander and United States v. Martin—for fuller inquiry and stated reasons, especially for pro se oral motions. But it relied on Alexander’s counterweight: summary denial is not an abuse of discretion when the motion is clearly meritless on the record. The court then previewed why the Bashara factors “weigh heavily against” Carey, rendering a remand for additional proceedings unnecessary.
4) The Bashara factor application: the plea colloquy as the central anchor
The analysis turned on a consistent theme: Carey’s asserted confusion about the ability to withdraw his plea was incompatible with the plea colloquy warning that he would not be able to return later and demand a trial.
- Delay (98 days): Treated as substantial and strongly against withdrawal, using United States v. Benton.
- Reason for delay: Even assuming counsel had suggested the plea could later be withdrawn, the court held the judge’s explicit warning at the plea hearing dispelled that misunderstanding. This mirrors the “colloquy cures” principle later made explicit via United States v. Lee.
- Assertion of innocence: Carey’s midstream dispute about “intent to distribute” evaporated when the court clarified “distribute” meant transfer, after which Carey admitted guilt. His later “recreational” firearm claim was treated as partial and belated, insufficient under United States v. Dixon.
- Circumstances of the plea: The court emphasized a thorough plea colloquy establishing a knowing and voluntary plea—traditionally the hardest fact pattern for a defendant to overcome on Rule 11(d)(2)(B).
- Nature/background; experience: Education and criminal-history experience cut against withdrawal, supported by United States v. Willis and United States v. Owens.
- Prejudice to the government: Treated as irrelevant because none of the other factors favored Carey, citing United States v. Ellis.
C. Impact
1) A practical rule about “renewal” and waiver
Although unpublished, the opinion provides a clear operational guide in Sixth Circuit practice: a defendant who makes an oral presentence withdrawal request does not waive appellate review merely by failing to renew it—unless the district court signals that renewal is expected or invited (the limiting principle drawn from United States v. Hoff and United States v. Smith). For litigants, this sharpens the preservation/waiver boundary and places weight on what the district judge actually says in response to the initial motion.
2) Reduced likelihood of remand for “hearing-only” errors when the record is decisive
The decision reinforces that appellate courts are unlikely to remand solely because a district court gave a brief oral denial, so long as the record supports an easy merits review and the Bashara factors decisively cut against the defendant (consistent with United States v. Alexander).
3) The plea colloquy remains the primary safeguard
The strongest doctrinal message concerns reliance on the Rule 11 colloquy: where the judge clearly advises that a guilty plea cannot simply be undone later, later claims of misunderstanding—whether attributed to counsel or state-court expectations—face an uphill climb. This aligns with the principle quoted in United States v. Lee that a proper plea colloquy generally cures misunderstandings.
4. Complex Concepts Simplified
- Motion to withdraw a guilty plea (presentence): Before sentencing, a defendant may ask to undo a guilty plea, but must show a “fair and just reason” under Fed. R. Crim. P. 11(d)(2)(B).
- Abuse of discretion: A deferential appellate standard. The question is not whether the appellate court would have decided differently, but whether the district court used the wrong legal standard, relied on clearly wrong facts, or made an unreasonable judgment call.
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Waiver vs. forfeiture/preservation:
- Preservation (Rule 51(b)): You preserve an issue by telling the judge what you want at the time of the ruling.
- Waiver (Carter/Olano): You intentionally give up a known right; waived issues generally cannot be reviewed on appeal.
- The Bashara factors: A structured checklist to evaluate whether there is a “fair and just reason” to withdraw a plea, focusing on timing, reasons for delay, innocence, how the plea happened, the defendant’s background, experience with the system, and prejudice to the government.
- Plea colloquy: The in-court Q&A where the judge confirms the defendant understands the charges, rights, and consequences of pleading guilty. A thorough colloquy creates a strong record against later claims of confusion.
5. Conclusion
United States v. Trent Carey affirms a denial of presentence plea withdrawal and, in doing so, underscores three points of Sixth Circuit practice: (1) an oral pro se request to withdraw a plea generally preserves the issue, and failure to renew does not create waiver absent a court invitation to renew; (2) while fuller inquiry is preferred, summary denial is not reversible when the record makes the motion’s lack of merit clear; and (3) a thorough Rule 11 plea colloquy—especially one expressly warning that a plea cannot later be undone as a matter of second thoughts—will heavily shape the Bashara analysis and often foreclose claims of misunderstanding.
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