NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_____________ No. 18-3104 _____________
UNITED STATES OF AMERICA v. ARMAND JOSEPH, Appellant
On Appeal from the United States District Court for the District of New Jersey (District Court No.: 2-13-cr-00627-001) District Court Judge: Honorable Susan D. Wigenton
Submitted under Third Circuit L.A.R. 34.1(a) on July 9, 2019
(Opinion filed: September 6, 2019)
Before: McKEE, ROTH and RENDELL, Circuit Judges O P I N I O N*
RENDELL, Circuit Judge:
Armand Joseph, appellant, pled guilty to conspiracy to commit theft of
government property by fraud and was sentenced to 24 months’ imprisonment. On
appeal, he urges that: (1) the District Court erred in denying his application to withdraw
his guilty plea; and (2) his sentence is procedurally and substantively unreasonable
because the District Court refused to grant him a four-level minimal role guidelines
reduction and failed to properly consider the § 3553(a) factors. We will affirm the
District Court’s sentence.
I
Armand Joseph was a clerk at ABC Check Cashing (“ABC”), when an
unidentified man came into the ABC with fraudulent federal income tax refund checks.
Joseph agreed to cash 34 checks without verifying that the presenter was the payee in
exchange for payments of roughly $100 a check. To hide what he had done, Joseph
recorded the transactions under the accounts of valid ABC customers. Joseph was
eventually charged with conspiracy to commit theft of government property by fraud.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Joseph eventually entered into a plea agreement, in exchange for certain factual
stipulations: that (1) Joseph cashed nearly 250,000 dollars of federal income tax refund
checks, (2) Joseph gave the money from the checks to an individual who was not the
legal beneficiary of the checks in exchange for at least 100 dollars per check, and (3)
Joseph was a minimal participant in the scheme. The agreement also contained a section
acknowledging that the sentencing court has the discretion to disregard the stipulations in
the agreement if they differ from its own factual findings. Following the plea, the
government recommended a sentence of 24 months’ imprisonment.
In response to the government’s sentence recommendation, Joseph moved for an
order allowing him to withdraw his guilty plea and proceed to trial. He claimed that he
was innocent and that he had only pled guilty because the government led him to believe
he would not serve any time in jail. The District Court denied the motion, stating that
Joseph had previously asserted his guilt several times under oath. The Court further
concluded that his apprehensions over the government’s sentence recommendation is not
a sufficient reason to withdraw his plea. The District Court also concluded that allowing
the case to go to trial would prejudice the government because years had passed since the
offense and the ABC closed during that time.
The Probation Office prepared an initial Presentence Investigation Report (“PSR”)
that incorrectly calculated Joseph’s base offense level as eighteen. Before the sentencing
date, the Probation Office revised the PSR to correctly calculate Joseph’s base offense
level as sixteen. The revised PSR recommended that Joseph not receive any mitigating
3 role reduction. The PSR recommended an advisory guidelines range of 24 to 30 months’
imprisonment.
At sentencing, Joseph argued that he was entitled to a four-level minimal role
reduction. Joseph argued that he had an insignificant role in the crime and that the parties
had stipulated that his role in the crime was minimal. The District Court stated that
Joseph was only entitled to a two-level minor role reduction because a four-level
reduction is used for people who are “duped into being a part of a scheme” and have “no
idea what has happened.” App. 78-79. The District Court concluded that a two-level
minor role reduction was proper because Joseph assisted in the crime but was not so
involved as to necessitate no deduction. The District Court sentenced Joseph to 24
months’ imprisonment in accordance with the calculated Guidelines. This appeal
followed.
II
Joseph appeals both the District Court’s denial of his motion to withdraw his plea
and the sentence the District Court imposed. The District Court had jurisdiction pursuant
to 18 U.S.C. § 3231. We have jurisdiction over the challenge to the conviction pursuant
to 18 U.S.C. § 1291. We have jurisdiction over the challenge to the sentence under 18
U.S.C. § 3742(a). We review the denial of the motion to his withdraw guilty pleas under
an abuse of discretion standard. United States v. Siddons, 660 F.3d 699, 703 (3d Cir.
2011). We review the District Court’s sentencing decision under an abuse of discretion
standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
4 A
To sustain a motion to withdraw a guilty plea, a district court examines “(1)
whether the defendant asserts his innocence, (2) the strength of the defendant’s reasons
for withdrawing the plea, and (3) whether the government would be prejudiced by the
withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). Change of mind
or fear of punishment are not adequate reasons to withdraw a plea. Id. The burden of
proof is on the defendant to show that a motion to withdraw a guilty plea is proper. Id.
Joseph argues that the District Court abused its discretion in denying his motion.
Joseph first argues that he has maintained innocence throughout the proceedings
because he lacked the requisite mens rea to be guilty of conspiracy to defraud the
government. He points to his refusal to label his actions as “fraud” as proof of this.
Joseph admitted under oath, however, that he cashed the checks with full knowledge that
they did not belong to the person cashing them. He further admitted that he knew both
that the checks were payable by the United States Department of the Treasury and that
what he was doing was unlawful. At no point does Joseph attempt to reconcile these
admissions with his claim of innocence. Joseph’s refusal to label his actions as “fraud”
does not change the fact that he admitted to knowingly defrauding the government.
Joseph also argues that he provided a strong reason warranting withdrawing his
plea. He claims that the government failed to live up to its promise when it recommended
24 months’ imprisonment. However, the plea agreement never made any representations
about the government’s recommended sentence. The agreement explicitly stated that the
5 District Court has the sole discretion to impose the sentence. Furthermore, Joseph’s fear
of punishment after the government made its recommendation is not an acceptable reason
to withdraw his guilty plea. Id.
Joseph finally argues that the government would not be prejudiced by his plea
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_____________ No. 18-3104 _____________
UNITED STATES OF AMERICA v. ARMAND JOSEPH, Appellant
On Appeal from the United States District Court for the District of New Jersey (District Court No.: 2-13-cr-00627-001) District Court Judge: Honorable Susan D. Wigenton
Submitted under Third Circuit L.A.R. 34.1(a) on July 9, 2019
(Opinion filed: September 6, 2019)
Before: McKEE, ROTH and RENDELL, Circuit Judges O P I N I O N*
RENDELL, Circuit Judge:
Armand Joseph, appellant, pled guilty to conspiracy to commit theft of
government property by fraud and was sentenced to 24 months’ imprisonment. On
appeal, he urges that: (1) the District Court erred in denying his application to withdraw
his guilty plea; and (2) his sentence is procedurally and substantively unreasonable
because the District Court refused to grant him a four-level minimal role guidelines
reduction and failed to properly consider the § 3553(a) factors. We will affirm the
District Court’s sentence.
I
Armand Joseph was a clerk at ABC Check Cashing (“ABC”), when an
unidentified man came into the ABC with fraudulent federal income tax refund checks.
Joseph agreed to cash 34 checks without verifying that the presenter was the payee in
exchange for payments of roughly $100 a check. To hide what he had done, Joseph
recorded the transactions under the accounts of valid ABC customers. Joseph was
eventually charged with conspiracy to commit theft of government property by fraud.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Joseph eventually entered into a plea agreement, in exchange for certain factual
stipulations: that (1) Joseph cashed nearly 250,000 dollars of federal income tax refund
checks, (2) Joseph gave the money from the checks to an individual who was not the
legal beneficiary of the checks in exchange for at least 100 dollars per check, and (3)
Joseph was a minimal participant in the scheme. The agreement also contained a section
acknowledging that the sentencing court has the discretion to disregard the stipulations in
the agreement if they differ from its own factual findings. Following the plea, the
government recommended a sentence of 24 months’ imprisonment.
In response to the government’s sentence recommendation, Joseph moved for an
order allowing him to withdraw his guilty plea and proceed to trial. He claimed that he
was innocent and that he had only pled guilty because the government led him to believe
he would not serve any time in jail. The District Court denied the motion, stating that
Joseph had previously asserted his guilt several times under oath. The Court further
concluded that his apprehensions over the government’s sentence recommendation is not
a sufficient reason to withdraw his plea. The District Court also concluded that allowing
the case to go to trial would prejudice the government because years had passed since the
offense and the ABC closed during that time.
The Probation Office prepared an initial Presentence Investigation Report (“PSR”)
that incorrectly calculated Joseph’s base offense level as eighteen. Before the sentencing
date, the Probation Office revised the PSR to correctly calculate Joseph’s base offense
level as sixteen. The revised PSR recommended that Joseph not receive any mitigating
3 role reduction. The PSR recommended an advisory guidelines range of 24 to 30 months’
imprisonment.
At sentencing, Joseph argued that he was entitled to a four-level minimal role
reduction. Joseph argued that he had an insignificant role in the crime and that the parties
had stipulated that his role in the crime was minimal. The District Court stated that
Joseph was only entitled to a two-level minor role reduction because a four-level
reduction is used for people who are “duped into being a part of a scheme” and have “no
idea what has happened.” App. 78-79. The District Court concluded that a two-level
minor role reduction was proper because Joseph assisted in the crime but was not so
involved as to necessitate no deduction. The District Court sentenced Joseph to 24
months’ imprisonment in accordance with the calculated Guidelines. This appeal
followed.
II
Joseph appeals both the District Court’s denial of his motion to withdraw his plea
and the sentence the District Court imposed. The District Court had jurisdiction pursuant
to 18 U.S.C. § 3231. We have jurisdiction over the challenge to the conviction pursuant
to 18 U.S.C. § 1291. We have jurisdiction over the challenge to the sentence under 18
U.S.C. § 3742(a). We review the denial of the motion to his withdraw guilty pleas under
an abuse of discretion standard. United States v. Siddons, 660 F.3d 699, 703 (3d Cir.
2011). We review the District Court’s sentencing decision under an abuse of discretion
standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
4 A
To sustain a motion to withdraw a guilty plea, a district court examines “(1)
whether the defendant asserts his innocence, (2) the strength of the defendant’s reasons
for withdrawing the plea, and (3) whether the government would be prejudiced by the
withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). Change of mind
or fear of punishment are not adequate reasons to withdraw a plea. Id. The burden of
proof is on the defendant to show that a motion to withdraw a guilty plea is proper. Id.
Joseph argues that the District Court abused its discretion in denying his motion.
Joseph first argues that he has maintained innocence throughout the proceedings
because he lacked the requisite mens rea to be guilty of conspiracy to defraud the
government. He points to his refusal to label his actions as “fraud” as proof of this.
Joseph admitted under oath, however, that he cashed the checks with full knowledge that
they did not belong to the person cashing them. He further admitted that he knew both
that the checks were payable by the United States Department of the Treasury and that
what he was doing was unlawful. At no point does Joseph attempt to reconcile these
admissions with his claim of innocence. Joseph’s refusal to label his actions as “fraud”
does not change the fact that he admitted to knowingly defrauding the government.
Joseph also argues that he provided a strong reason warranting withdrawing his
plea. He claims that the government failed to live up to its promise when it recommended
24 months’ imprisonment. However, the plea agreement never made any representations
about the government’s recommended sentence. The agreement explicitly stated that the
5 District Court has the sole discretion to impose the sentence. Furthermore, Joseph’s fear
of punishment after the government made its recommendation is not an acceptable reason
to withdraw his guilty plea. Id.
Joseph finally argues that the government would not be prejudiced by his plea
withdrawal. He argues that the government would not have trouble marshalling the small
number of witnesses or the evidence needed to conduct a trial. The government need not
prove prejudice when the defense has failed to establish sufficient grounds for
withdrawing a guilty plea. See United States v. Martinez, 785 F.2d 111, 116 (3d Cir.
1986). Even so, the District Court did not abuse its discretion when it concluded that the
government would be prejudiced because the events occurred ten-years ago and ABC has
since closed. Thus, the District Court did not err when it denied Joseph’s motion to
withdraw his guilty plea.
B
When reviewing sentencing decisions, we first examine whether the District Court
committed any significant procedural errors. Significant procedural errors include
“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[.]”
Tomko, 562 F.3d at 567 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If there
are no significant procedural errors, we then consider the substantive reasonableness of
the sentence in light of the “totality of the circumstances.” Tomko, 562 F.3d at 567.
6 Joseph argues that the District Court erred by improperly calculating the Guidelines and
by failing to adequately consider the § 3553(a) factors. He argues that this procedural
error led the District Court to impose a substantively unreasonable sentence.
Joseph claims that the District Court rejected the stipulated four-level minimal role
reduction because it misinterpreted U.S.S.G. § 3B1.2 and failed to apply the factors
enumerated therein. He relies mainly on the Court’s comment that a four-level minimal
role is “almost as if somebody has no idea what has happened” and has essentially “been
duped into being a part of a scheme.” App. 78. But, Joseph’s complaints here are ill-
founded, as the context of these remarks suggest the District Court properly applied the
guidelines in its calculation. First, following the remark on “duped” defendants, the
District Court stated, “Mr. Joseph went to the extent of putting the names of [other
customers] on these checks . . . to basically avoid detection or any questions, so it wasn’t
quite as innocent as . . . him not having any idea.” App. 78-9. Second, the District Court
properly examined the degree to which the defendant understood the scope of the plan,
his autonomy to make decisions, what his actual role was, and the degree to which he
benefitted from the scam.
Even so, the District Court also deviated from the PSR’s recommendation not to
provide any role reduction. App. 79 (“[T]he presentence report really accurately
calculates him, that he shouldn’t be given any benefit. But because I know that there was
a negotiated plea . . . the fair assessment of what Mr. Joseph did would qualify for a
minor role adjustment.”). As a result, the District court properly considered Joseph’s
7 involvement in the conspiracy and did not abuse its discretion when it imposed a two-
level minor role reduction.
Joseph further argues that the District Court abused its discretion by not adhering
to the stipulations agreed upon in the plea agreement.1 But a “sentencing court is not
bound by factual stipulations in a plea agreement and has discretion to make factual
findings[.]” United States v. Maurer, 639 F.3d 72, 81 (3d Cir. 2011) (quoting United
States v. Ketcham, 80 F.3d 789, 792 n.6 (3d Cir. 1996)). And the plea agreement here,
states that the agreement “cannot and does not bind the sentencing judge, who may make
independent factual findings and may reject any or all of the stipulations entered into by
the parties.” Appellee Br. 4. The District Court was therefore within its discretion to
reject the stipulated facts and grant Joseph a minor participant reduction based on its own
independent findings.
Joseph’s argument that the District Court failed to consider the § 3553(a) factors is
also erroneous. His argument appears to be tethered to the claim that the District Court
did not appropriately consider the history of the defendant and the nature of his crime.
However, the Court did consider Joseph’s history carefully and considered additional
facts that the defense failed to acknowledge, such as the fact that Joseph deliberately tried
1 Joseph also argues that the government breached the plea agreement by defending on appeal the District Court’s rejection of the minimal role reduction. The agreement clearly states “[i]f the sentencing court rejects a stipulation, both parties reserve the right to argue on appeal . . . that the sentencing court was within its discretion and authority to do so.” Supp. App. 3. Even so, the government can defend a District Court’s denial of a stipulated sentencing adjustment on appeal. See United States v. Griswold, 57 F.3d 291, 298-99 (3d Cir. 1995). 8 to conceal his wrongdoing. App. 78-9. (“It clearly indicates that Mr. Joseph went to the
extent of putting the names of the people on these checks o[f] prior customers of the
check cashing business to basically avoid any detection[.]”). After considering both
Joseph’s history and the nature of the crime, the Court described at length the specific
societal and individual needs met by the sentence. App. 79-84 (“I then turn to the 3553(a)
factors, try to determine what sentence will be sufficient but not greater than necessary to
reflect the seriousness [of the crime], to promote respect for the law[, and] provide just
punishment for what occurred.”). The record shows that the District Court carefully
considered all of the § 3553(a) factors when sentencing Joseph. Thus, Joseph’s claims
relating to the procedural reasonableness of his sentence fail.2
III
For the aforementioned reasons, we will affirm the sentencing order of the District
Court.
2 Because Joseph’s argument about the substantive reasonableness of the sentence relied entirely on a finding that the District Court procedurally erred in calculating the Guidelines and erred in considering the § 3553(a) factors, the sentence imposed was also substantively reasonable. 9