United States v. Mohamad Dalalli ( 2016 )


Menu:
  •                         NOT RECOMMENDED FOR PUBLICATION
    File Name: 16a0301n.06
    No. 15-1835
    FILED
    UNITED STATES COURT OF APPEALS                             Jun 07, 2016
    FOR THE SIXTH CIRCUIT                             DEBORAH S. HUNT, Clerk
    UNITED STATES OF AMERICA,                                  )
    )
    Plaintiff-Appellee,                                 )
    )
    ON APPEAL FROM THE
    v.                                          )
    UNITED STATES DISTRICT
    )
    COURT FOR THE WESTERN
    MOHAMAD ALI DALALLI,                                       )
    DISTRICT OF MICHIGAN
    )
    Defendant-Appellant.                                )
    )
    BEFORE: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.
    JULIA SMITH GIBBONS, Circuit Judge. At the end of the first day of his jury trial,
    Mohamad Ali Dalalli pled guilty to all five counts of his pending indictment, though he had no
    plea bargain with the government. Several months later, but well before sentencing, Dalalli’s
    court-appointed attorney sought to withdraw. The district court denied the request. After
    another several months passed, Dalalli moved to withdraw his guilty plea. The district court also
    denied this request. The district court then sentenced Dalalli to 27 months’ imprisonment and
    revoked his naturalized citizenship. On appeal, Dalalli asserts error in the district court’s denial
    of the motions to withdraw as counsel and to withdraw his guilty plea, its finding of a sufficient
    factual basis for his guilty plea, and in the reasonableness of his sentence. For the reasons set
    forth in this opinion, we affirm the district court’s judgment in all respects.
    No. 15-1835, United States v. Dalalli
    I.
    In a series of indictments beginning on November 7, 2013, Dalalli and his wife Rima
    Alame were alleged to have defrauded the United States by receiving a variety of welfare
    benefits under false pretenses. In the Third Superseding Indictment, filed on October 8, 2014,
    Count 1 alleged that Dalalli and Alame engaged in a conspiracy to obtain benefits to which they
    were not entitled by making false representations that they had low income and negligible assets.
    Counts 2, 3, and 4 alleged theft of public money from the United States Department of
    Agriculture, the United States Department of Health and Human Services (“HHS”), and the
    United States Department of Housing and Urban Development (“HUD”) in excess of $1000 in
    violation of 
    18 U.S.C. §§ 641
     and 2. Count 5 alleged that Dalalli had become a naturalized
    citizen through fraud in violation of 
    18 U.S.C. § 1425
    (b).
    Shortly after the first indictment was filed, the court granted Dalalli’s request for counsel
    and appointed Gary Springstead pursuant to the Criminal Justice Act. After several continuances
    based on Dalalli’s need for a translator, voluminous records, and the several superseding
    indictments, Dalalli’s case proceeded to trial on January 13, 2015.1
    A.
    The morning of trial, the court was informed that Dalalli wished to plead guilty to all of
    the charges pending against him, though there was no plea deal offer from the government. The
    district court expressed concern about accepting a guilty plea the morning of trial, given that
    there was no agreement with the government and that the jury venire had already assembled.
    Springstead informed the court that Dalalli wished to plead guilty to help his wife with her case,
    even though there were no guarantees. The court again expressed concern because Dalalli’s
    1
    The district court denied Dalalli’s final motion for a continuance, which was filed less than a
    week before trial was set to begin.
    2
    No. 15-1835, United States v. Dalalli
    hope that a guilty plea would help his wife was part of no deal, and it decided to proceed with the
    first morning of trial to give Dalalli additional time to consider his options. If Dalalli still wished
    to plead guilty after jury selection and the beginning of trial, according to the court, then it would
    consider the matter at that time.
    That afternoon, Dalalli again indicated that he wanted to plead guilty to all five counts in
    the Third Superseding Indictment. The court did its best to confirm that Dalalli wished to plead
    guilty, stating, for example: “In other words, if we go forward with a trial and you lose
    everything at trial, you’re going to wind up convicted of all five charges that you want to plead
    guilty to today? Do you understand that?” DE 181, Guilty Plea Tr., Page ID 1033. The court
    further explained that “even if you plead guilty today, that doesn’t guarantee anything for your
    wife.” 
    Id.
     After Dalalli was sworn, the district court conducted a thorough guilty plea colloquy,
    beginning with ensuring that Dalalli could understand the court through his translator.
    The court repeatedly probed why Dalalli was choosing to plead guilty, given that he had
    no plea agreement. At one point, the court classified Dalalli’s decision to plead guilty as “the
    worst possible thing that could happen to you at the end of trial.” 
    Id. at 1037
    . When questioned,
    Dalalli explained that he hoped his guilty plea would result in lenient treatment for his wife. In
    response, the court emphasized several times that Dalalli’s decision to plead guilty “has nothing
    to do with what happens to [his] wife,” and that “that government could come back at another
    date and try the very same case against her that they started to try against [Dalalli].” 
    Id. at 1038
    .
    When Dalalli stated that “[t]he same way I help the government by admitting the guilt, the same
    they are going to help my wife,” the court confirmed that this was his “own hope, . . . own
    judgment, . . . own guess,” and called it “a gamble basically.” 
    Id. at 1039
    . In addition, Dalalli
    3
    No. 15-1835, United States v. Dalalli
    admitted that his decision was not based on anything told to him by the government or
    Springstead.
    Before accepting Dalalli’s guilty plea, the court explained the elements of each charge
    that the government would have to prove at trial beyond a reasonable doubt, as well as the
    maximum possible period of imprisonment, fine, and period of supervised release for each count.
    To be guilty of a violation of 
    18 U.S.C. § 641
    , as charged in Counts 2–4, according to the court,
    the government would have to, first, prove that Dalalli improperly took money from the agencies
    as charged in the Third Superseding Indictment. Second, the government would “have to show
    that you got it fraudulently, that is you weren’t supposed to get it, you didn’t qualify for it, but
    you got it anyway.” DE 181, Guilty Plea Tr., Page ID 1046. The third element required the
    government to prove that Dalalli improperly took the government’s money, not by accident or
    mistake, but by deliberate fraud.       The court further explained that Count 5 required the
    mandatory revocation of Dalalli’s citizenship, which might subject him to deportation.
    The court warned Dalalli that he could face up to ten years’ imprisonment for four counts
    and up to five years’ imprisonment for the remaining count, making the worst case scenario
    forty-five years’ imprisonment. The court explained that prior to sentencing, Dalalli would be
    interviewed by a probation officer, who would aid the court in calculating his Guidelines range.
    Only then did the court accept Dalalli’s guilty plea to each count charged in the Third
    Superseding Indictment.
    As a factual basis, Dalalli admitted that he had $30,000 in a bank account in Lebanon as
    early as 2006, when he applied for various benefits. The court asked Dalalli whether it was his
    money, and Dalalli agreed that it was. The court asked Dalalli whether he “understood if [he]
    told the government on the forms that [he] had $30,000 in the bank, [he] realized [the
    4
    No. 15-1835, United States v. Dalalli
    government] w[as]n’t going to give [him] benefits,” to which Dalalli responded, “Correct.” 
    Id. at 1065
    . Dalalli admitted that Alame knew about the bank account, she possessed undisclosed
    jewelry, and she knew that Dalalli had bought a grocery store which took in cash receipts.
    Dalalli also admitted that he had signed a statement to the Immigration Service in June 2013 that
    he resided at his former family residence, but that he had moved out at some earlier time. Both
    the government and Springstead indicated that they were satisfied with the factual basis for the
    plea.
    B.
    As is customary, Dalalli’s probation officer prepared a presentence investigation report
    (“PSR”) prior to sentencing, which reported that Dalalli had unlawfully obtained $126,739 in
    federal welfare benefits by concealing assets. During a March 18, 2015 meeting to prepare the
    PSR with his probation officer, Springstead, and a translator, Dalalli claimed that he was not
    guilty of the conduct to which he had pled guilty two months earlier. At this meeting, according
    to the PSR, “Dalalli alleged his ‘lawyer is working for the government’” and “‘forced’ him ‘to
    plead guilty rather than go to trial.’” DE 153, PSR, Page ID 823. Dalalli apparently continued
    that “I don’t have the freedom to say what I want. I told my attorney they are playing a game
    and I don’t have a choice. My attorney did not represent me the right way. To defend me. I ask
    if he is working for the government or is he helping me. My words have been misinterpreted.”
    
    Id.
    Shortly afterwards, on March 24, 2015, Springstead filed a motion to withdraw as
    counsel. Springstead asserted that “there was a breakdown in the attorney-client relationship”
    during the March 18, 2015 meeting, based on Dalalli’s allegations that “the government forced
    him to plead guilty, [Springstead] worked for the government (implying [Springstead] had the
    5
    No. 15-1835, United States v. Dalalli
    government’s best interest in mind, not his); he never wanted a jury trial and [Springstead]
    pursued a jury trial against his wishes; and, that, generally, he was dissatisfied with
    [Springstead].”    DE 129, Mot. Withdraw Counsel, Page ID 641.               Dalalli also informed
    Springstead that he wanted to hire another attorney.
    At an April 13, 2015, hearing on this motion, the district court questioned Dalalli about
    whether and why he wanted a new attorney. Dalalli’s first response was, “Can I represent
    myself, Your Honor?” DE 178, Mot. Withdraw Counsel Tr., Page ID 995. The court responded
    that it would start with whether Dalalli wanted a new lawyer. The court never revisited the issue
    of self-representation, nor did Dalalli raise it again until this appeal.
    Dalalli thereafter represented that he had already hired a new attorney, although no one
    appeared to represent him. Dalalli then admitted that he did not know the full name of the
    attorney and that Dalalli had not spoken with him directly. In response to the court’s question
    about why he wanted a new lawyer, Dalalli discussed his underlying case, saying that “I have so
    many evidence [sic], I have so many proofs, but no one is giving me the chance to talk. No one
    is giving me the chance to elaborate on these accusations.” 
    Id. at 997
    . When the district court
    attempted to refocus Dalalli on the instant matter, Dalalli stated: “People are putting pressure on
    me, Your Honor. Yes, plead guilty in order to get your wife out of jail. Say you’re guilty
    because in order to get your children back to you.” 
    Id. at 1000
    . Dalalli stated that he was
    exhausted from Springstead’s “interrogation” of him. 
    Id.
     at 1000–01. Springstead would ask,
    according to Dalalli, “‘Tell me about Hezbollah.’ ‘Tell me about the militant groups.’ ‘Tell me
    about ISIS.’” 
    Id. at 1001
    . Dalalli explained that “I didn’t feel that [Springstead] was working
    for me or for my interests.” 
    Id.
     Springstead did not add to these allegations but informed the
    court that “by not elaborating on his allegations . . . I’m not agreeing with them.” 
    Id. at 1008
    .
    6
    No. 15-1835, United States v. Dalalli
    The district court explained that to grant Springstead’s motion, there must be good cause.
    The court noted Dalalli’s frustration with Springstead but also pointed out that during his guilty
    plea colloquy, Dalalli had represented to the court that no one was making him any promises in
    exchange for his guilty plea. In evaluating whether the motion to withdraw was timely, the court
    remarked that “Springstead has been working the case as appointed counsel for a very long time
    without any barriers noted on the record between counsel and client,” and additionally, that two
    months had lapsed since the guilty plea. 
    Id. at 1005
    . The court surmised that Dalalli may have
    been having second thoughts about his decision to plead guilty, as the first draft of the PSR had
    been completed shortly before Springstead filed his motion, but stated that such second guessing
    does not amount to good cause to grant the motion. According to the court, there was not the
    “kind of barrier between defense counsel and client that warrants changing horses at this stage.”
    
    Id. at 1006
    . The court also expressed hesitation about allowing Springstead to withdraw, since
    Dalalli’s “retained counsel” had not appeared in court that day. 
    Id.
     at 1006–07. The court
    ultimately denied the motion to withdraw, concluding that Springstead should continue his
    representation, which was “now limited to some sentencing matters.” 
    Id. at 1008
    .
    C.
    On June 14, 2015, Dalalli, through Springstead, filed a motion to withdraw his guilty
    plea. Dalalli asserted his actual innocence and explained that he had pled guilty because of
    pressure and emotional exhaustion and because he believed he might face more lenient
    sentencing with a guilty plea. The motion continued: “Based on his history as an immigrant
    from Iraq and, as a person for whom English is a second language, Mr. Dalalli had little
    experience dealing with and understanding the U.S. criminal justice system.” DE 154, Mot.
    Withdraw Guilty Plea, Page ID 834–35.         Dalalli further posited that there would be little
    7
    No. 15-1835, United States v. Dalalli
    prejudice to the government “other than the inconvenience and expense of getting the trial
    together again,” as the government had been fully prepared for trial in January 2015. DE 174,
    Sentencing Tr., Page ID 943.
    Prior to sentencing on July 14, 2015, the district court held a hearing on Dalalli’s motion
    to withdraw his guilty plea, which the government opposed. Relying on the test set forth in
    United States v. Dixon, 
    479 F.3d 431
     (6th Cir. 2007), the court found that the timing of the
    motion weighed heavily against Dalalli, as the motion came after the PSR and five months after
    the guilty plea. The court determined that the circumstances of the guilty plea also weighed
    against Dalalli, as he had pled guilty to all charges pending against him with no plea bargain.
    Though Dalalli’s claim of innocence and his immigrant status with no prior experience with the
    American justice system weighed in his favor, they were not enough to sway the court’s
    decision. Further, according to the district court, forcing the government to go to trial six months
    after a jury had originally been impaneled would present “a practical prejudice,” both to the
    government and to the public. DE 174, Sentencing Tr., Page ID 951. Accordingly, the district
    court denied Dalalli’s motion to withdraw his guilty plea.
    D.
    The PSR grouped Counts 1–4 as provided by U.S.S.G. § 3D1.2(d). For these charges,
    Dalalli’s adjusted offense level was 16. Count 5 was grouped separately and was assigned an
    adjusted offense level of 8 under U.S.S.G. § 2L2.2(a). Pursuant to U.S.S.G. § 3D1.4, Dalalli was
    assessed an additional offense level based on the multiple count adjustment—raising his total
    offense level to 17. With a criminal history category of I, Dalalli’s Guidelines range was 24 to
    30 months’ imprisonment. Neither Dalalli nor the government made any legal objections during
    the sentencing hearing.
    8
    No. 15-1835, United States v. Dalalli
    Dalalli, however, did move for a downward variance because although the total amount
    of fraudulent benefits received was significant, Dalalli and his family did not live an extravagant
    lifestyle: $126,739 spread over nine years amounted to less than $1200 per month. Dalalli
    further argued that as an Iraqi refugee, when he first applied for the various benefits, he could not
    speak English and did not know the programs’ guidelines. During allocution, Dalalli again
    asserted his innocence and frustration with the justice system.          The government opposed
    Dalalli’s motion for a downward variance.
    The court sentenced Dalalli to 27 months’ imprisonment—a sentence squarely within the
    Guidelines range of 24 to 30 months’ imprisonment. It revoked Dalalli’s naturalized citizenship,
    as required by 
    8 U.S.C. § 1451
    (e). The court took issue with Dalalli’s inconsistent position on
    his guilt, which it interpreted as “an attempt to . . . game the system.” DE 174, Sentencing Tr.,
    Page ID 969.     Therefore, it declined to award a downward variance or any reduction for
    acceptance of responsibility but chose not to impose a penalty for obstruction of justice or to
    vary upward from the Guidelines range. Dalalli objected to the denial of his request for a
    downward variance and the revocation of his naturalization.
    II.
    A.
    Dalalli first argues that the district court erred by failing to order substitution of counsel
    after learning of reason to believe there had been a breakdown in the attorney-client relationship
    between Springstead and himself, which he contends violated his Sixth Amendment right to
    counsel.
    “Although an indigent defendant under our case law does not have a right to counsel of
    choice, the Sixth Amendment requires the substitution of appointed counsel upon a showing of
    9
    No. 15-1835, United States v. Dalalli
    good cause.”    United States v. Marrero, 
    651 F.3d 453
    , 477–78 (6th Cir. 2011) (Clay, J.,
    dissenting) (citing United States v. Iles, 
    906 F.2d 1122
    , 1130–31 (6th Cir. 1990)). The Sixth
    Amendment provides a right to counsel at all “critical stages” of criminal proceedings, United
    States v. Wade, 
    388 U.S. 218
    , 227–28 (1967), which includes sentencing. Gardner v. Florida,
    
    430 U.S. 349
    , 358 (1977) (citing Mempa v. Rhay, 
    389 U.S. 128
     (1967)).
    A district court must inquire whether good cause exists for the substitution of counsel if a
    motion to withdraw is filed prior to sentencing. United States v. Reynolds, 534 F. App’x 347,
    371 (6th Cir. 2013) (quoting United States v. Vasquez, 
    560 F.3d 461
    , 466 (6th Cir. 2009)). We
    review a district court’s refusal to substitute counsel for abuse of discretion. United States v.
    Watson, 620 F. App’x 493, 497 (6th Cir. 2015) (citing United States v. Henderson, 
    626 F.3d 326
    ,
    340 (6th Cir. 2010)). “A district court abuses its discretion ‘when it relies on clearly erroneous
    findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’”
    United States v. Lineback, 
    330 F.3d 441
    , 443 (6th Cir. 2003) (quoting United States v. Spikes,
    
    158 F.3d 913
    , 927 (6th Cir. 1998)).
    When reviewing a district court’s denial of a motion to withdraw or substitute
    counsel, we generally must consider: (1) the timeliness of the motion, (2) the
    adequacy of the court’s inquiry into the matter, (3) the extent of the conflict
    between the attorney and client and whether it was so great that it resulted in a
    total lack of communication preventing an adequate defense, and (4) the
    balancing of these factors with the public’s interest in the prompt and efficient
    administration of justice.
    United States v. Mack, 
    258 F.3d 548
    , 556 (6th Cir. 2001) (citations omitted). We are mindful
    that “broad discretion must be granted trial courts on matters of continuances; only an
    unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for
    delay violates the right to the assistance of counsel.” Vasquez, 
    560 F.3d at 466
     (quoting Morris
    v. Slappy, 
    461 U.S. 1
    , 11–12 (1983)).
    10
    No. 15-1835, United States v. Dalalli
    Contrary to the district court’s finding, the first factor, the timeliness of the motion,
    weighs mostly in Dalalli’s favor. The district court focused on the lengthy period of time in
    which Springstead and Dalalli were able to “work together constructively,” and noted that the
    motion was filed two months after Dalalli pled guilty. DE 178, Mot. Withdraw Counsel Tr.,
    Page ID 1007. The district court, however, failed to mention that Dalalli’s sentencing was still
    months away: Springstead filed the motion to withdraw as counsel on March 24, 2015; the
    hearing on the motion occurred on April 13, 2015; and sentencing did not occur until
    July 14, 2015—three months later. A period of three months would have enabled a new attorney
    for Dalalli to prepare for the sentencing hearing. Cf. United States v. Chambers, 
    441 F.3d 438
    ,
    447 (6th Cir. 2006) (finding motion for new counsel filed “approximately one and a half months
    prior to the scheduled trial date” was not timely).
    We also consider the adequacy of the court’s inquiry into the breakdown in
    communication. Mack, 
    258 F.3d at 556
    . This court has previously indicated that “to meet this
    requirement, the district court simply must allow a defendant the opportunity to explain the
    attorney-client conflict as he perceives it.” Marrero, 
    651 F.3d at 465
     (majority) (collecting
    cases). The trial court made a sufficient inquiry into the situation, hearing from both Dalalli and
    Springstead before concluding that there was not a complete breakdown in communication
    between them. See United States v. Saldivar-Trujillo, 
    380 F.3d 274
    , 278 (6th Cir. 2004) (“We
    conclude that this inquiry was adequate because it allowed all of the interested parties to present
    their respective evidence and arguments.”)
    We next ask whether there was the kind of complete breakdown in communication that
    would necessitate substitution of counsel.        Although Springstead seemingly continued to
    zealously represent Dalalli, including later filing the motion to withdraw his guilty plea and a
    11
    No. 15-1835, United States v. Dalalli
    motion for downward variance at sentencing, Dalalli’s complaints about his lawyer verge on a
    complete breakdown. For instance, Dalalli was upset that Springstead allegedly questioned him
    about Hezbollah, terrorism, and ISIS. If true, it is hard to imagine that they had the ideal
    attorney-client relationship. Importantly, however, the standard is not so strict: so long as there
    is no conflict “so great that it resulted in a total lack of communication preventing an adequate
    defense,” there is no good cause to grant a motion to withdraw. Marrero, 
    651 F.3d at 466
    (citation omitted). Though Dalalli had remarked that Springstead questioned him about various
    terrorist groups, which, if true, would seriously impair the attorney-client relationship, the district
    court was justified in discounting Dalalli’s characterization of the attorney-client relationship as
    “thoroughly contradicted by the record.” DE 178, Mot. Withdraw Counsel Tr., Page ID 1008.
    Dalalli’s representations at the hearing on Springstead’s motion to withdraw were inconsistent
    with the testimony he gave under oath when he pled guilty. In view of Dalalli’s apparent
    falsehoods, the district court was not required to accept Dalalli’s vague assertions that another
    attorney had been contacted on his behalf in spite of the fact that Dalalli did not know the
    attorney’s name and had apparently never spoken with him.
    Even though Dalalli did not explicitly say that he was completely unable to communicate
    with his attorney, given the language barriers that existed, it is not outside the realm of
    possibility that Dalalli felt unable to communicate with Springstead. But, given the lack of such
    testimony from either Dalalli or Springstead, and in consideration of the district court’s more-
    than-adequate inquiry, the district court did not abuse its discretion in declining to find such a
    breakdown in communication that necessitated the appointment of new counsel.
    The fourth factor—the public’s interest in the prompt and efficient administration of
    justice—is somewhat neutral. Weighing in Dalalli’s favor, all that remained was sentencing,
    12
    No. 15-1835, United States v. Dalalli
    which did not take place until three months after the motion to withdraw as counsel was filed,
    which is more than enough time for a new attorney to familiarize himself or herself with the
    case. Cf. Marrero, 
    651 F.3d at 467
     (“Because the district court decided [the defendant’s] first
    motion for substitute counsel at the same time it permitted him to withdraw his guilty plea, this
    disposition coincided with a necessary rearrangement of the district court’s schedule for [the
    defendant’s] case. It was not as if [the defendant] requested new counsel in the middle of trial, at
    the expense of great time and effort already put forth by the Government.”). As sentencing was
    months away, the court was not presented with a situation in which “the granting of the
    defendant’s request would almost certainly necessitate a last-minute continuance.” See Vasquez,
    
    560 F.3d at 467
     (citation omitted). In addition, this was the first time that Dalalli sought new
    counsel; this is not a case in which the defendant repeatedly sought the appointment of new
    counsel to attempt to delay his proceedings. See 
    id. at 468
    . Weighing against Dalalli, however,
    is the length of time between his initial indictment and Springstead’s appointment in 2013 and
    his eventual plea and sentencing in 2015.
    In balancing these factors, we conclude that the district court did not abuse its discretion
    in denying Springstead’s motion to withdraw as counsel.2
    B.
    Dalalli next contends that the district court failed to determine that there was an adequate
    factual basis for his guilty plea to Counts 2–4, in violation of Federal Rule of Criminal Procedure
    11(b).       According to Dalalli, all he admitted to was making false representations to the
    government, but 
    18 U.S.C. § 641
     applies only to larceny and embezzlement. Thus, his argument
    2
    During the hearing on the motion, Dalalli asked whether he could represent himself, and the
    district court never directly addressed this issue. However, Dalalli’s request for self-representation was
    not serious, as he did not raise it again before the district court, although he had ample opportunity to do
    so—if not during the April hearing, then in the months before his sentencing or during his sentencing.
    13
    No. 15-1835, United States v. Dalalli
    goes, he could have been found guilty of fraud, but not theft of public money. Additionally, he
    contends that it was not established that “property of the United States was involved,” Appellant
    Br. at 41, despite the government’s proffer that the Department of Agriculture, HHS, and HUD
    provided the funds for the benefits programs at issue. Dalalli further argues that because there is
    no factual basis for his convictions under § 641, the convictions for Counts 1 and 5 are likewise
    invalid as they are predicated on the same argument.
    Federal Rule of Criminal Procedure 11 provides that “[b]efore entering judgment on a
    guilty plea, the court must determine that there is a factual basis for the plea.” Fed. R. Crim. P.
    11(b)(3). “The purpose of this requirement is to ensure the accuracy of the plea through some
    evidence that a defendant actually committed the offense.” United States v. McCreary-Redd,
    
    475 F.3d 718
    , 722 (6th Cir. 2007) (quoting United States v. Tunning, 
    69 F.3d 107
    , 111 (6th Cir.
    1995)). Rule 11 provides no guidance for how a district court must or should ensure that a
    factual basis exists, but this court has explained:
    The ideal means to establish the factual basis for a guilty plea is for the district
    court to ask the defendant to state, in the defendant’s own words, what the
    defendant did that he believes constitutes the crime to which he is pleading guilty.
    So long as the district court ensures that the defendant’s statement includes
    conduct—and mental state if necessary—that satisfy every element of the offense,
    there should be no question concerning the sufficiency of the factual basis for the
    guilty plea. This “ideal” method is by no means the only method, however. We
    recognize that the district court may determine the existence of the . . . factual
    basis from a number of sources, including a statement on the record from the
    government prosecutors as well as a statement from the defendant.
    United States v. Mobley, 
    618 F.3d 539
    , 545 (6th Cir. 2010) (alteration in original) (internal
    quotation marks omitted) (quoting Tunning, 
    69 F.3d at 112
    ). “In reviewing whether a district
    court had a factual basis for a plea, . . . we ‘may examine the entire record, including proceedings
    that occurred after the plea colloquy.’” 
    Id.
     (quoting McCreary-Redd, 
    475 F.3d at
    722 n.1).
    14
    No. 15-1835, United States v. Dalalli
    Because Dalalli did not raise this objection in the district court, we review for plain error.
    United States v. Crum, 625 F. App’x 304, 308 (6th Cir. 2015) (citing McCreary-Redd, 
    475 F.3d at 721
    ). To establish plain error, Dalalli must demonstrate: “(1) an error (2) that is plain, (3) that
    affected [his] substantial rights, and (4) that seriously affects the fairness, integrity or public
    reputation of judicial proceedings.” United States v. Houston, 
    792 F.3d 663
    , 667 (6th Cir. 2015)
    (internal quotation marks omitted) (quoting Puckett v. United States, 
    556 U.S. 129
    , 135 (2009)).
    Dalalli pled guilty to three counts of theft of public money, which provides in relevant
    part as follows:
    Whoever embezzles, steals, purloins, or knowingly converts to his use or
    the use of another, or without authority, sells, conveys or disposes of any record,
    voucher, money, or thing of value of the United States or of any department or
    agency thereof, or any property made or being made under contract for the United
    States or any department or agency thereof . . . [s]hall be fined under this title or
    imprisoned not more than ten years . . . .
    
    18 U.S.C. § 641
    . Dalalli appears to assert that fraud can never serve as the basis for a conviction
    under § 641, though he cites no case law for this proposition.             On the other hand, the
    government’s theory of this case is clearly based on fraud, not embezzlement or larceny.
    Dalalli’s arguments to the contrary notwithstanding, the phrase “knowingly converts”
    incorporates a fraud theory into § 641. See United States v. McRee, 
    7 F.3d 976
    , 980 (11th Cir.
    1993). In Morissette v. United States, the Supreme Court recognized that “[t]he history of § 641
    demonstrates that it was to apply to acts which constituted larceny or embezzlement at common
    law and also acts which shade into those crimes but which, most strictly considered, might not be
    found to fit their fixed definitions.” 
    342 U.S. 246
    , 266 n.28 (1952). As recognized by this and
    other courts, the elements of a fraud-based prosecution under § 641 are as follows:
    (1) that the money or property belonged to the government; (2) that the defendant
    fraudulently appropriated the money or property to his own use or the use of
    15
    No. 15-1835, United States v. Dalalli
    others; (3) and that the defendant did so knowingly and willfully with the intent
    either temporarily or permanently to deprive the owner of the use of the money or
    property.
    McRee, 
    7 F.3d at 980
    ; see also United States v. Delaine, 517 F. App’x 466, 468 (6th Cir. 2013)
    (citing McRee with approval). So long as there was a sufficient factual basis to establish the
    above-quoted elements, the district court did not plainly err.
    At the guilty plea colloquy, the district court informed Dalalli of the elements of the
    offenses alleged in Counts 2–4. Dalalli admitted that he had $30,000 in a bank account in
    Lebanon about which he failed to inform the government when he applied for various benefits.
    Dalalli further agreed that he “understood if [he] told the government on the forms that [he] had
    $30,000 in the bank, [he] realized they weren’t going to give [him] benefits.” DE 181, Guilty
    Plea Tr., Page ID 1065. Accordingly, there was a sufficient factual basis to accept Dalalli’s
    guilty plea that he had fraudulently appropriated government welfare benefits with the requisite
    intent, and the district court did not plainly err.
    Dalalli’s remaining argument that there was an insufficient factual basis that the property
    belonged to the United States is plainly meritless. The government proffered that HHS funds
    Medicaid, the Department of Agriculture funds several food stamp programs, and HUD funds
    housing assistance. The district court did not plainly err in accepting the government’s proffer as
    stating a sufficient factual predicate for Dalalli’s convictions for Counts 2–4. See Mobley, 
    618 F.3d at 545
     (“We recognize that the district court may determine the existence of the . . . factual
    basis from . . . a statement on the record from the government prosecutors . . . .” (first alteration
    in original) (citation omitted)). Because all of Dalalli’s claims that there was an insufficient
    factual basis for his guilty plea fail, so too does his predicate argument about Counts 1 and 5.
    16
    No. 15-1835, United States v. Dalalli
    C.
    Dalalli’s third argument is that the district court erred in denying his motion to withdraw
    his guilty plea.
    We review the district court’s denial of a motion to withdraw a guilty plea for abuse of
    discretion. United States v. Dixon, 
    479 F.3d 431
    , 436 (6th Cir. 2007) (citing United States v.
    Pluta, 
    144 F.3d 968
    , 973 (6th Cir. 1998)). Dalalli bears the burden of demonstrating that proper
    grounds exist for granting his motion to withdraw his guilty plea. Dixon, 
    479 F.3d at
    436 (citing
    United States v. Triplett, 
    828 F.2d 1195
    , 1197 (6th Cir. 1987)).
    Federal Rule of Criminal Procedure 11 requires a defendant who seeks to withdraw a
    guilty plea to “show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.
    11(d)(2)(B). Rule 11 “allow[s] a hastily entered plea made with unsure heart and confused mind
    to be undone, not to allow a defendant ‘to make a tactical decision to enter a plea, wait several
    weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading
    guilty.’” United States v. Alexander, 
    948 F.2d 1002
    , 1004 (6th Cir. 1991) (per curiam) (quoting
    United States v. Carr, 
    740 F.2d 339
    , 345 (5th Cir. 1984)). In determining whether a defendant
    has demonstrated the requisite “fair and just reason,” courts consider the following
    nonexhaustive factors:
    (1) the amount of time that elapsed between the plea and the motion to withdraw
    it; (2) the presence (or absence) or a valid reason for the failure to move for
    withdrawal earlier in the proceedings; (3) whether the defendant has asserted or
    maintained his innocence; (4) the circumstances underlying the entry of the guilty
    plea; (5) the defendant’s nature and background; (6) the degree to which the
    defendant has had prior experience with the criminal justice system; and
    (7) potential prejudice to the government if the motion to withdraw is granted.
    Dixon, 
    479 F.3d at 436
     (quoting Pluta, 
    144 F.3d at 973
    ). “The relevance of each factor will vary
    according to the ‘circumstances surrounding the original entrance of the plea as well as the
    17
    No. 15-1835, United States v. Dalalli
    motion to withdraw.’” United States v. Haygood, 
    549 F.3d 1049
    , 1052 (6th Cir. 2008) (quoting
    Triplett, 
    828 F.2d at 1197
    ).
    The first factor weighs against Dalalli—he did not move to withdraw his guilty plea until
    approximately six months after the district court accepted his guilty plea. “The shorter the delay,
    the more likely a motion to withdraw will be granted, and a defendant’s reasons for filing such a
    motion will be more closely scrutinized when he has delayed his motion for a substantial length
    of time.” United States v. Baez, 
    87 F.3d 805
    , 808 (6th Cir. 1996) (quoting Triplett, 
    828 F.2d at 1197
    ). For example, in Dixon, this court found that a nearly two-year delay “weigh[ed] heavily”
    against the defendant, while recognizing that this court has “frequently relied on much shorter
    delays for upholding a withdrawal denial.” 
    479 F.3d at
    436 (citing United States v. Durham, 
    178 F.3d 796
    , 799 (6th Cir. 1999) (77 day delay); Baez, 
    87 F.3d at 808
     (67 day delay); United States
    v. Goldberg, 
    862 F.2d 101
    , 104 (6th Cir. 1988) (55 day delay); United States v. Spencer, 
    836 F.2d 236
    , 239 (6th Cir. 1987) (35 day delay)); see also United States v. Giorgio, 
    802 F.3d 845
    ,
    848 (6th Cir. 2015) (118 day delay). In this case, Dalalli pled guilty on January 13, 2015, but he
    did not move to withdraw his guilty plea until June 14, 2015—two days after his presentence
    report was filed and one month before his scheduled sentencing date of July 14, 2015. The
    considerable time that elapsed between Dalalli’s plea and his motion to withdraw his plea
    supports the district court’s decision to deny the motion.
    Dalalli contends that although he did not move to withdraw his guilty plea until
    June 14, 2015, he had been contemplating such a motion since a March 18, 2015 meeting with
    Springstead and his probation officer, at which time Dalalli asserted that he was forced to plead
    guilty. Dalalli further argues that he “did not move for an earlier withdrawal as he was under a
    misapprehension as to the outcome of the proceedings relating to himself and his wife” and that
    18
    No. 15-1835, United States v. Dalalli
    “[o]nce that was made clearer to him he asked for a change of counsel and to withdraw his plea.”
    Appellant Br. at 50. With these statements, Dalalli appears to state that he didn’t decide to move
    to withdraw his guilty plea until he saw his PSR. This explanation is not only unpersuasive but
    also invalid. As Dalalli recognizes in his own brief, Rule 11 does not “allow a defendant to
    make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he
    believes that he made a bad choice in pleading guilty.” United States v. Ellis, 
    470 F.3d 275
    ,
    280–81 (6th Cir. 2006) (citation omitted); Appellant Br. at 44. The circulation of Dalalli’s PSR,
    with its projected Guidelines range of 24 to 30 months’ imprisonment, cannot be a valid reason
    for his failure to move for withdrawal earlier even if it served to clarify the “outcome of the
    proceedings.” PSRs are designed to aid district courts in fashioning sentences that are sufficient,
    but not greater than necessary, to punish defendants for the crimes committed. Defendants are
    not permitted to plead guilty and then use their PSR to their advantage in seeking to withdraw a
    guilty plea. See United States v. Poole, 2 F. App’x 433, 438 (6th Cir. 2001) (finding the district
    court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea in
    part “because courts more closely scrutinize motions to withdraw guilty pleas which follow
    significant delays and potential review of presentence reports” (emphasis added)).
    Neither does the third factor favor Dalalli, even though he currently asserts his innocence.
    During the guilty plea colloquy on January 13, 2015, Dalalli fully admitted his guilt while under
    oath. He now argues that “he changed his plea due to exhaustion and pressure on him to plead.”
    Appellant Br. at 50. The record is devoid of any such exhaustion or pressure. For example, the
    district court asked Dalalli at his plea hearing, “Do you feel like anybody is trying to force you
    into this against your will?” DE 181, Guilty Plea Tr., Page ID 1061. Dalalli answered, “No.”
    
    Id.
     The court further asked Dalalli whether “in your own mind you’re gambling that maybe if
    19
    No. 15-1835, United States v. Dalalli
    you plead guilty, something good will happen for your wife?” 
    Id.
     Dalalli responded, “Yes.” 
    Id.
    Throughout the course of the colloquy, the district court explained the elements of each count
    and asked Dalalli specific questions to establish a factual basis, as discussed above. In one
    exchange, the court asked, “So you decided not to tell them about [the bank account in Lebanon]
    because you wanted to get the money?” Id. at 1065. Dalalli responded, “Okay,” but this did not
    satisfy the court. Id. The court clarified, “Is that true or not true,” to which Dalalli answered,
    “Yes, yes, yes, yes.” Id. The trial transcript of the guilty plea colloquy firmly establishes that
    Dalalli knowingly pled guilty and that he admitted his factual guilt. Later, during interviews for
    the PSR, as early as March 18, 2015, Dalalli changed his story and asserted his innocence to his
    probation officer.     However, Dalalli did not declare his innocence to the court until
    April 13, 2015, during the hearing on Springstead’s motion to withdraw as counsel, and he did
    not move to withdraw his guilty plea until June 14, 2015. “[C]laims of innocence are not
    convincing when the defendant has vacillated over time.”             United States v. Carpenter,
    554 F. App’x 477, 482 (6th Cir. 2014). In an analogous situation, this court held that a defendant
    who admitted his guilt at the plea hearing and did not reassert his innocence until sentencing had
    not demonstrated the “vigorous and repeated protestations of innocence [that would] support the
    denial of a motion to withdraw a guilty plea.” Baez, 
    87 F.3d at
    808–09. Dalalli has equivocated
    on his actual innocence and took months to assert his innocence to the district court. At best, this
    is a neutral factor for Dalalli, not a beneficial one.
    Dalalli argues that the fact that he changed his plea after his trial had begun proves that
    the circumstances underlying his guilty plea favor the subsequent withdrawal of his guilty plea.
    Bare assertions of “exhaustion and pressure on him to plead,” Appellant Br. at 50, when the
    record is actually replete with statements by the district court that counseled Dalalli against
    20
    No. 15-1835, United States v. Dalalli
    pleading guilty, do nothing for Dalalli’s argument on this point. Moreover, Springstead stated
    that “I’ve made it clear to Mr. Dalalli that I’m ready, prepared to go with trial as the Court can
    see. And I told him I would finish the trial and do my best for him. And he’s made his decision
    that this is what he wants to do.” DE 181, Guilty Plea Tr., Page ID 1061. If there was any
    pressure on Dalalli to plead guilty, it was pressure he put on himself.
    The fifth and sixth factors weigh somewhat in Dalalli’s favor. He is a refugee from Iraq
    and emigrated to the United States from Lebanon in 2005. He is not a native English speaker
    and has had only limited exposure to the American criminal justice system. At the same time,
    however, as recognized by the district court, Dalalli was a naturalized citizen, meaning he had to
    demonstrate an understanding of the history and operation of the government of the United
    States. This understanding may have provided Dalalli with a relatively better understanding of
    the justice system than others. And the district court clearly attempted to inform Dalalli of the
    consequences of his actions and to explain to him the court proceedings. As a further example,
    the district court exhaustively explained to Dalalli that by pleading guilty to Count 5, he would
    be stripped of his naturalized citizenship. Nevertheless, Dalalli is certainly not a sophisticated
    career criminal with extensive experience with the criminal justice system. These factors weigh
    in his favor.
    As for the final factor, whether the government would be prejudiced if the motion to
    withdraw were to be granted, Dalalli contends that there is no prejudice to the government. This
    statement is suspect. Merely forcing the government to present its case at trial presents no
    prejudice in the first instance, but the posture of this case is not so straightforward. Dalalli did
    not plead guilty until after the government was fully prepared for trial and had finished
    presenting the first day of its case. Dalalli’s motion to withdraw his guilty plea came six months
    21
    No. 15-1835, United States v. Dalalli
    after he pled guilty. With the passage of time, witnesses’ recollections may fade, and even with
    the power of subpoenas, the government may be unable to secure some of its witnesses. In a
    case such as this, where the government was prepared for trial six months earlier, after a number
    of continuances were granted, the government would have been prejudiced had the district court
    forced it to re-prepare for trial.
    Reviewing the relevant factors, we conclude that Dalalli has not met his burden of
    offering “a fair and just reason for withdrawing his guilty plea.” See Dixon, 
    479 F.3d at 437
    .
    Therefore, we affirm the judgment of the district court.
    D.
    The ultimate reasonableness of a criminal sentence has both a procedural and a
    substantive component. Gall v. United States, 
    552 U.S. 38
    , 51 (2007); United States v. Melton,
    
    782 F.3d 306
    , 312 (6th Cir. 2015). As a general matter, we review a defendant’s sentence for
    reasonableness under an abuse of discretion standard. Gall, 
    552 U.S. at
    40–41. In this case,
    Dalalli challenges his sentence on both procedural and substantive grounds.
    In reviewing a sentence for procedural reasonableness, we will find that a district court
    abused its discretion if it:
    commit[s] [a] significant procedural error, such as failing to calculate (or
    improperly calculating) the Guidelines range, treating the Guidelines as
    mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
    clearly erroneous facts, or failing to adequately explain the chosen sentence—
    including an explanation for any deviation from the Guidelines range.
    Gall, 
    552 U.S. at 51
    . Dalalli argues that his sentence was procedurally unreasonable because his
    offenses should not have been grouped in the manner that resulted in one additional offense
    level. Since Dalalli failed to object to his Guidelines calculation before the district court, we
    22
    No. 15-1835, United States v. Dalalli
    review this claim for plain error. United States v. Vonner, 
    516 F.3d 382
    , 386 (6th Cir. 2008) (en
    banc).
    Generally speaking, the Sentencing Guidelines group counts that involve “substantially
    the same harm” into a single group for the purpose of determining the applicable offense level.
    U.S.S.G. § 3D1.2. “Counts involve substantially the same harm . . . [w]hen the offense level is
    determined largely on the basis of the total amount of harm or loss . . . .” U.S.S.G. § 3D1.2(d).
    Thus, the district court grouped together Counts 1 (for conspiracy), and 2–4 (for theft of public
    money). Section 3D1.2 specifies that a conviction under § 2L2.2 is not to be grouped. Section
    2L2.2 applies to “fraudulently acquiring documents relating to naturalization, citizenship, or
    legal resident status for own use,” including offenses committed under 
    18 U.S.C. § 1425
    .
    U.S.S.G. § 2L2.2 (emphasis added). Accordingly, the district court grouped separately Dalalli’s
    conviction on Count 5 for unlawful procurement of naturalization, which had the effect of adding
    a point to Dalalli’s offense level. According to the text of the Guidelines, therefore, the district
    court did not plainly err in grouping Counts 1–4 separately from Count 5.3
    Dalalli contends that, notwithstanding the text of the Guidelines, because “all five counts
    were ‘closely related,’” they should have been grouped together. Appellant Br. at 55. Dalalli
    cites no case law to support this proposition. In point of fact, we “must follow the clear and
    unambiguous language of the Sentencing Guidelines when interpreting and applying specific
    provisions,” and therefore, Dalalli’s procedural argument fails. See United States v. Young,
    
    266 F.3d 468
    , 484 (6th Cir. 2001).
    3
    Section 2L2.1, which is not subject to § 3D1.2(d)’s exclusion from grouping, applies to
    “trafficking in a document relating to naturalization, citizenship, or legal resident status, or a United
    States passport; false statement in respect to the citizenship or immigration status of another; fraudulent
    marriage to assist alien to evade immigration law.” U.S.S.G. § 2L2.1 (emphasis added). Dalalli’s
    conviction for Count 5 thus clearly falls under the purview of § 2L2.2, not § 2L2.1.
    23
    No. 15-1835, United States v. Dalalli
    Dalalli further argues his sentence is unreasonable because it gives too much weight to
    the extra offense level that resulted from the district court’s grouping under U.S.S.G.
    §§ 3D1.2(d) and 2L2.2, going so far as to assert that the court “erroneously applied the clear
    Sentencing Guidelines.” Appellant Br. at 56–57. Dalalli is mistaken: the district court correctly
    applied the clear and unambiguous Guidelines. That Dalalli is dissatisfied that the Guidelines
    mandated a base offense level of 17, rather than 16, does not render his sentence unreasonable.
    Even if the Guidelines had provided that Dalalli be given a total offense level of 16, his
    Guidelines range would be 21 to 27 months’ imprisonment; his sentence of 27 months’
    imprisonment is within that range. The district court properly heeded the Supreme Court’s
    direction that “the Guidelines should be the starting point and the initial benchmark.” Gall, 
    552 U.S. at 49
    . Before it pronounced his sentence, the court explained that Dalalli’s total offense
    level was 17, and with his criminal history category of I, his Guidelines range was 24 to 30
    months’ imprisonment. After hearing no objections from either party, the court heard argument
    from Springstead, Dalalli himself, and the government. Next, the court expressly considered
    both Dalalli’s motion for a downward variance and the government’s suggestion that an upward
    variance may be appropriate.      It is clear that the district court committed no “significant
    procedural error”—indeed, the district court made no procedural error, either in calculating
    Dalalli’s Guidelines range or in the weight it assigned the Guidelines. See Gall, 
    552 U.S. at 51
    .
    In determining whether a sentence is substantively reasonable, we begin by recognizing
    that “[d]istrict courts enjoy discretion in sentencing.” United States v. Guthrie, 
    557 F.3d 243
    ,
    256 (6th Cir. 2009). We then “take into account the totality of the circumstances, including the
    extent of any variance from the Guidelines range.”        Gall, 
    552 U.S. at 51
    .      Substantively
    reasonable sentences are “proportionate to the seriousness of the circumstances of the offense
    24
    No. 15-1835, United States v. Dalalli
    and offender, and sufficient but not greater than necessary, to comply with the purposes of
    § 3553(a).” United States v. Vowell, 
    516 F.3d 503
    , 512 (6th Cir. 2008) (internal quotation marks
    and citations omitted).
    Dalalli’s sentence is not disproportionate to the seriousness of the crime, nor is it greater
    than necessary to comply with 
    18 U.S.C. § 3553
    (a). See Vowell, 
    516 F.3d at 512
    . After the
    district court delivered the 27 months’ imprisonment sentence, it spent considerable time
    explaining its rationale.    Specifically, the court addressed its dissatisfaction with Dalalli’s
    changing position on his guilt, his lack of acceptance of responsibility, and its concern that
    Dalalli might reoffend in the future. Although the district court did not specify which § 3553(a)
    factors it relied on, there is no requirement that it engage in “the ritual incantation of the factors.”
    United States v. Jeross, 
    521 F.3d 562
    , 583 (6th Cir. 2008) (citations omitted). In light of his
    changing story, the length of time during which the fraud occurred in this case, and the total loss
    amount, the district court did not abuse its discretion in denying Dalalli’s motion for variance
    and sentencing him to 27 months’ imprisonment.
    CONCLUSION
    For the reasons discussed above, we affirm the judgment of the district court.
    25