United States Court of Appeals Fifth Circuit F I L E D REVISED JANUARY 6, 2004 December 17, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk
No. 02-21211
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAGGIE POWELL,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, Houston
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
DeMOSS, Circuit Judge:
Appellant Maggie Powell (“Powell”) pleaded guilty to one count
of violating 18 U.S.C. § 371, conspiracy to commit theft of
government property, and one count of violating 18 U.S.C. §§ 641
and 642, theft of and aiding and abetting theft of government
property. Before sentencing, Powell moved to withdraw her guilty
plea, and the district court denied that motion without conducting
an evidentiary hearing. The district court sentenced Powell to 366
days’ imprisonment and three years’ supervised release, and ordered
Powell to pay a $200 special assessment and $190,751.37 mandatory
restitution pursuant to 18 U.S.C. § 3663A, also known as the Mandatory Victims Restitution Act (“MVRA”). Powell appeals her
conviction and sentence, claiming first, that the district court
committed harmful error because it did not inform her of its
authority to order mandatory restitution during her plea colloquy,
and second, that the district court abused its discretion by
denying her motion to withdraw her guilty plea without giving
reasons and by not holding an evidentiary hearing on such motion.
Both parties agree that the case should be remanded under Fed. R.
Crim. P. 36 to correct the judgment to reflect that the health care
fraud charge against Powell was dismissed. Because the district
court’s error in not informing Powell of its authority to order
mandatory restitution was harmless and because the district court
did not abuse its discretion in denying Powell’s withdrawal motion
and in not holding a hearing, we AFFIRM the conviction and sentence
below. We also REMAND with instruction to correct Powell’s
judgment to reflect dismissal of the health care fraud charge.
BACKGROUND
On October 4, 2000, Powell and co-defendants Beverly Scott
(“Scott”) and Doretha Chambers (“Chambers”) were indicted by the
grand jury of one count of conspiracy to commit theft of government
property under 18 U.S.C. § 371 (“count one”); one count of theft
and aiding and abetting theft of government property under
18 U.S.C. §§ 641 and 642 (“count two”); and one count of health
care fraud under 18 U.S.C. § 1347 (“count three”). This indictment
2 resulted from an undercover investigation initiated in 1997 by the
Inspector General of the Office of Investigations for the
Department of Veterans Affairs, and joined in mid-1998 by the Drug
Enforcement Agency and the Food and Drug Administration’s Criminal
Investigative Division. The investigation revealed the repeated
theft of noncontrolled, prescription drugs by the co-defendant
pharmacy technicians from the Veterans Affairs Medical Center
outpatient pharmacy (“VAMC”). The investigation also revealed the
repeated subsequent delivery and sale of those drugs to William
Carrillo (“Carrillo”), owner of Economical Pharmacy.
On July 11, 2000, Special Agent Phillip Eubanks (“Eubanks”)
with the Department of Veterans Affairs contacted Powell, advised
her of his identity, and inquired about theft of drugs from the
VAMC. Powell agreed to provide a statement, which she signed.
This statement outlined that sometime in 1996, fellow pharmacy
technician Scott asked Powell if she needed an extra job and
informed Powell that Scott had a contact who would buy stolen drugs
from the VAMC. Some months later, Powell agreed to work with Scott
to remove drugs from the VAMC and sell them to Scott’s contact.
This contact was only known to Powell as “Bill.” In her statement,
Powell indicated that once a month, sometimes twice a month, she
would receive a written order, listing what drugs Bill needed, from
Scott. Powell would remove those drugs, if available, and place
them in a paper bag. Sometimes fellow pharmacy technician Chambers
assisted Powell. Then a courier posing as a veteran would arrive
3 at the prescription pickup area at the VAMC and take the bag of
drugs; Scott would later retrieve the drugs from the courier, or
from her locker where the courier had placed them, and take them to
Bill. After meeting with Bill to hand over the drugs, Scott would
split the proceeds with Powell and Chambers.
At arraignment on October 16, 2000, Powell entered a plea of
not guilty. However, at rearraignment on December 8, 2000,
pursuant to a written plea agreement, and with her appointed
counsel Robert Fickman (“Fickman”) present, Powell pleaded guilty
to counts one and two. During Powell’s rearraignment, the
government laid out a statement of the facts that the government
would be prepared to prove at trial. According to the government,
this factual basis would be evidenced at trial by Powell’s
statement, the statements given by Scott and Chambers, and
testimony by Eubanks and certain pharmacy employees. The
government informed the court that evidence would show Powell
assisted in removing drugs from the pharmacy on at least 31
occasions and that the average cost of drugs removed each time was
approximately $6,153.27, resulting in a total loss to the
government of approximately $190,751.37, based on Powell’s conduct.
Also, the government stated that at the time of sentencing, it
would move to dismiss count three of the indictment.
During the plea colloquy, the district court advised Powell
that she faced a maximum of five years in prison and a $250,000
fine for count one, and a maximum of ten years in prison and a
4 $250,000 fine for count two. The district court also informed
Powell that she would have to pay a special assessment of $100 for
each count and that the court could impose a period of supervised
release of up to three years following any term of imprisonment.
The district court did not advise Powell that as a consequence of
her guilty plea, the court was required to impose mandatory
restitution on her pursuant to 18 U.S.C. § 3663A.1
On July 19, 2001, Fickman was allowed to withdraw as counsel
because Powell had terminated him. At that hearing, Powell orally
moved to withdraw her guilty plea, but the district court did not
1 Section 3663A provides:
(b) The order of restitution shall require that such defendant– (1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense . . . (B) . . . pay an amount equal to– (i) the greater of– (I) the value of the property on the date of the damage, loss, or destruction; or (II) the value of the property on the date of sentencing, less (ii) the value (as of the date the property is returned) of any part of the property that is returned.
18 U.S.C. § 3663A(b)(1)(B). “This section shall apply in all sentencing proceedings for convictions of, or plea agreements relating to charges for, any offense . . . that is . . . an offense against property under this title.” Id. § 3663A(c)(1)(A). Here, Powell was subject to MVRA because she pleaded guilty to offenses that are considered “offense[s] against property under this title” – that is, conspiracy to steal and theft of and aiding and abetting theft of government property (the VAMC’s drugs) under 18 U.S.C. §§ 371, 641, and 642.
5 allow withdrawal. Sentencing in the case was repeatedly continued.
On May 20, 2002, Powell, under new counsel, filed a written motion
to withdraw her guilty plea on various grounds, including her
contention that the district court’s failure to advise her about
mandatory restitution violated Rule 11 and rendered her plea
involuntary. The district court, without assigning reasons or
conducting an evidentiary hearing, denied the motion on May 30,
2002.
The district court sentenced Powell on October 7, 2002, to a
366-day term of imprisonment for each of counts one and two, to run
concurrently; a three-year term of supervised release for each of
counts one and two, to run concurrently; a mandatory special
assessment of $200; and mandatory restitution in the amount of
$190,751.37 (liable jointly and severally with co-defendants
Chambers and Carrillo, according to the judgment). At sentencing,
the government moved and the district court agreed to and ordered
dismissal of count three of the indictment. The judgment did not
reflect that dismissal. Powell timely appealed.
DISCUSSION
Whether the district court committed harmful error in not informing Powell of the court’s authority to impose mandatory restitution.
When a defendant objects at the district court level to the
court’s failure to comply with Rule 11 during the plea colloquy,
this Court reviews the challenge pursuant to the harmless error
standard. United States v. Johnson, 1 F.3d 296, 298 (5th Cir.
6 1993) (en banc); see also United States v. Vonn, 535 U.S. 55, 71-74
(2002) (holding that plain error review applies to Rule 11
objections raised for the first time on appeal and explaining that
harmless error review applies to Rule 11 objections raised before
appeal is taken). The two considerations in the harmless error
analysis are: (1) whether the sentencing court in fact varied from
the procedures required by Rule 11 and (2) whether such variance
affected the “substantial rights” of the defendant. Johnson, 1
F.3d at 298. To determine whether an error affects substantial
rights, i.e., is harmful, the focus is on “whether the defendant’s
knowledge and comprehension of the full and correct information
would have been likely to affect his willingness to plead guilty.”
Id. at 302.
Rule 11 requires the district court during the plea colloquy
to inform the defendant about any mandatory minimum penalty and
about the court’s authority to order restitution.2 Although
2 Rule 11, at the time of Powell’s plea, stated in part:
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, . . . and, when applicable, that the court may order the defendant to make restitution to any victim of the offense.
Fed. R. Crim. P. 11(c)(1) (2000) (now located at Rule 11(b)(1))
7 Powell’s plea agreement and PSR both discussed restitution,3 and
the government during the plea colloquy discussed the amount of
loss attributable to Powell ($190,751.37) and how it was
calculated, the district court made no mention of restitution
during the plea colloquy at her rearraignment. The government does
not contest that the district court erred by varying from the
procedure required by Rule 11.
This Court has previously found in United States v. Glinsey,
209 F.3d 386, 395 (5th Cir. 2000), that a defendant’s substantial
rights are not infringed when the district court, contrary to Rule
11, fails to admonish him of the court’s authority to order
restitution as a penalty where the district court did inform him of
the maximum possible fine. There, the district court imposed
restitution in the amount of $1,266,317.06 pursuant to 18 U.S.C.
§ 3663, also known as the Victim and Witness Protection Act
(emphasis added). 3 Powell’s plea agreement stated that “[t]he defendant agrees that any fine or restitution imposed by the Court will be due and payable immediately.” Powell’s PSR specifically noted that she would be held accountable for the entire calculated wholesale loss of $2,901,903 and would be subject under the MVRA and under § 5E1.1 of the U.S. Sentencing Guidelines to restitution in the amount of $1,318,284 for the VAMC’s actual loss. Powell objected to the amount of the loss calculation in the PSR and to her being held accountable for the entire amount of such calculated loss. Powell also objected to the amount and the imposition of restitution due to her inability to pay. Also, Powell referred to the amount of $190,751.37, the amount noted by the government during the plea colloquy as being attributable to Powell’s conduct, as “the correct provable basis for the loss calculation” to be attributed to Powell.
8 (“VWPA”).4 Glinsey, 209 F.3d at 394-95. This particular amount of
loss was calculated using the amount of illegally acquired food
stamps Glinsey and his co-conspirators allegedly redeemed
($1,506,128) minus the total gross sales reported by their
businesses ($239,810.94). Id. at 391. Because Glinsey had been
warned about a maximum possible fine of $1 million, we reduced the
amount of restitution ordered to $1 million to prevent any
infringement of his substantial rights, i.e., harmful error. Id.
at 395.
Here, Powell claims that the district court varied from the
required Rule 11 procedures because the court failed to advise her
at rearraignment that she would be subject to mandatory restitution
under the MVRA. She claims this variance affected her substantial
4 Section 3663 provides: “The court, when sentencing a defendant convicted of an offense under this title . . . may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3663(a)(1)(A). Section 3663 also states:
(b) The order may require that such defendant– (1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense . . . (B) . . . pay an amount equal to the greater of– (i) the value of the property on the date of the damage, loss, or destruction, or (ii) the value of the property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned.
Id. § 3663(b)(1)(B).
9 rights. While Powell acknowledges the holding of Glinsey, she
argues that because the restitution there was discretionary, not
mandatory, her case is distinguishable. In other words, because
the restitution was mandatory here, the underlying assumption that
there is no difference between restitution and a fine is no longer
valid. Thus, Powell contends the effect of a mandatory penalty
versus a discretionary penalty on a defendant’s willingness to
plead is substantial. The government argues Powell’s case is
entirely covered by Glinsey and therefore the Rule 11 error was
harmless. That is, because the district court did warn Powell that
she faced fines up to $500,000, the omission of any mention of
restitution (which was ultimately over $300,000 lower than the
total possible fines) could not have affected Powell’s substantial
rights – her willingness to plead guilty.
This Court in Glinsey seemed to base its decision on the
amount of financial exposure of which the defendant had notice, so
the proper course to avoid infringement of the defendant’s
substantial rights is for the district court to set liability no
higher than the defendant’s level of notice. “Whether the amount
to be paid is classed as restitution or a fine ordinarily makes
little difference in its bite, and warning of one but not the other
does not require collateral relief.” Glinsey, 209 F.3d at 395
(quoting United States v. Stumpf, 900 F.2d 842, 845 (5th Cir.
1990)). It is the amount of financial liability, not the label
10 “fine” or “restitution,” that affects a defendant’s substantial
rights. See id. Thus, a defendant warned in the plea colloquy
about the possibility of having to pay $500,000 in fines, who
otherwise voluntarily pleads guilty, would not have her rights
substantially affected by being ordered to pay back mandatory
restitution in a much lower amount. During her plea colloquy,
Powell was made well aware of the maximum amount of liability in
fines she faced, and her ordered restitution did not come close to
exceeding that amount. Therefore, we find the district court’s
Rule 11 error was not harmful under the facts of this case.
In doing so, we acknowledge that the restitution in Glinsey
was ordered pursuant to 18 U.S.C. § 3663, which authorizes courts
to impose discretionary restitution, and not pursuant to the MVRA,
which since its adoption as part of the Antiterrorism and Effective
Death Penalty Act in 1996 requires courts to impose mandatory
restitution for certain crimes. 18 U.S.C. § 3663A note; see also
United States v. Mancillas, 172 F.3d 341, 342 n.6 (5th Cir. 1999).
We also acknowledge that unlike 18 U.S.C. § 3663(a)(1)(B)(I), which
provides that “[t]he court, in determining whether to order
restitution under this section, shall consider . . . the financial
resources of the defendant, the financial needs and earning ability
of the defendant and the defendant’s dependents, and such other
factors as the court deems appropriate,” the MVRA requires the
district court to order the full amount of restitution, without
11 regard for the defendant’s economic circumstances and ability to
pay. United States v. Myers, 198 F.3d 160, 168-69 (5th Cir. 1999)
(explaining that under the MVRA the district court can only take a
defendant’s financial situation into account when setting the
schedule of payments, not when deciding whether to order
restitution); see also 18 U.S.C. § 3664(f)(1)(A) (“In each order of
restitution, the court shall order restitution to each victim in
the full amount of each victim's losses as determined by the court
and without consideration of the economic circumstances of the
defendant.”).5
Because pleading guilty to certain crimes will result in an
order of mandatory restitution and because the district court
cannot consider the pleading defendant’s financial situation and
must order payback of the full amount, it is extremely critical
that the sentencing judge give as full a disclosure as possible at
the time of the plea colloquy regarding the court’s authority to
order mandatory restitution and the probable quantum thereof. To
fully comply with Rule 11, the district judge should not only
advise the defendant as to the maximum amount of statutory fine
that could be levied as to each count, but also as to the fact
that, as to each count where the MVRA would apply, the court is
required to impose an amount of mandatory restitution to be paid to
5 Section 3664 outlines the proper procedure for issuing and enforcing restitution ordered pursuant to the VWPA and the MVRA.
12 the victim or victims which suffered loss as a result of the
defendant’s conduct. So long as the total of (1) fines actually
assessed by the district court and (2) restitution actually awarded
to victims does not exceed the total dollar amount that the court
used in notifying the defendant of the consequences of his plea, we
believe the holding in Glinsey should apply. But failure of the
district court to notify the defendant as to the quantum of
mandatory restitution under the MVRA could be harmful error when
the quantum of that restitution exceeds the liability amount used
by the court in notifying the defendant as to the consequences of
his guilty plea.
Whether the district court abused its discretion in denying Powell’s motion to withdraw her guilty plea without giving reasons and in not holding an evidentiary hearing.
A district court’s denial of a motion to withdraw a guilty
plea is reviewed for abuse of discretion. United States v.
Lampazianie, 251 F.3d 519, 523 (5th Cir. 2001) (citation omitted);
see also United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998)
(“[A] district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the
evidence.”). A defendant does not have an absolute right to
withdraw her guilty plea. United States v. Brewster, 137 F.3d 853,
857 (5th Cir. 1998). However, a district court may, in its
discretion, permit withdrawal before sentencing if the defendant
can show a “fair and just reason.” Id. (citing former Fed. R.
13 Crim. P. 32(e), now located at Rule 11(d)(2)).
The defendant bears the burden of establishing a fair and just
reason for withdrawing his plea. Id. at 858. This Circuit
considers seven factors when deciding whether the defendant has met
this standard: whether (1) the defendant asserted his innocence,
(2) withdrawal would cause the government to suffer prejudice,
(3) the defendant delayed in filing the motion, (4) withdrawal
would substantially inconvenience the court, (5) close assistance
of counsel was available, (6) the original plea was knowing and
voluntary, and (7) withdrawal would waste judicial resources.
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The
district court’s decision to permit or deny the motion is based on
the totality of the circumstances. Brewster, 137 F.3d at 858
(citation omitted). And the district court is not required to make
findings as to each of the Carr factors. Id. (citing United States
v. Badger, 925 F.2d 101, 104 (5th Cir. 1991)).
Although defendants are not entitled to an evidentiary
hearing, a hearing is required “when the defendant alleges
sufficient facts which, if proven, would justify relief.” United
States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984) (citation
omitted). However, a district court’s decision not to hold an
evidentiary hearing is reviewed for abuse of discretion. See
United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983).
Plus, any errors made in failing to hold evidentiary hearings are
14 subject to the harmless error standard. Mergist, 738 F.2d at 648.
Powell relies heavily on United States v. Pressley, 602 F.2d
709, 711 (5th Cir. 1979), to argue that the summary denial of her
motion to withdraw her guilty plea renders this Court unable to
determine whether the district court exercised appropriate
discretion and requires remand so the district court can state its
reasons. Alternatively, Powell claims the district court abused
its discretion by not holding an evidentiary hearing because
Powell’s motion was very detailed and not conclusory as to how each
Carr factor weighed in her favor. The government responds that
the district court implicitly adopted the detailed reasons for
denial set forth in its response to Powell’s motion. In other
words, as it was not required to make specific findings, the
district court evaluated the Carr factors and found they weighed
against withdrawal of Powell’s plea. The government also argues
that no evidentiary hearing was warranted because Powell did not
present any factual issues in her motion that would have
necessitated an evidentiary hearing.
We find Powell’s case easily distinguishable from Pressley.
In Pressley, which was decided prior to Carr, this Court remanded
where the district court seemed inclined initially to grant but
then simply denied the motion to withdraw Pressley’s guilty plea
after a psychiatric evaluation found him competent at the time of
his plea. 602 F.2d at 710. In doing so, we noted specifically
15 that factors (such as those later outlined in Carr) should be
considered by the district court when deciding a motion to withdraw
a guilty plea. Id. at 711. There, however, the district court
merely denied the motion after it satisfied itself that Pressley
was competent to understand the plea proceedings. Id. There is no
indication that Pressley or the prosecution had put forth any
arguments as to Carr-like factors for the district court to
consider. Here, the district court determined in its discretion,
based on the totality of the Carr factors as fully briefed by both
Powell and the government, that Powell did not meet her burden of
establishing a fair and just reason to justify withdrawal. Under
Brewster, the district court could have made but was not required
to make specific findings in denying Powell’s motion. Therefore,
the district court did not abuse its discretion in denying Powell’s
motion to withdraw her guilty plea without giving reasons.
As for the district court’s refusal to hold an evidentiary
hearing, while Powell’s motion did allege numerous reasons why her
plea should be withdrawn, first, even if they were all true the
totality of the Carr factors did not clearly tip in Powell’s favor
to justify relief. Thus, there is no error of law. Also, we find
no indication that the district court made any clear errors in
assessing the evidence pertaining to Powell’s plea. Therefore, the
district court did not abuse its discretion in denying Powell an
evidentiary hearing.
16 Whether the case should be remanded for correction of Powell’s judgment under Rule 36 because it does not reflect dismissal of the health care fraud charge.
Fed. R. Crim. P. 36 allows a court “at any time” to correct
clerical errors in the judgment “[a]fter giving any notice it
considers appropriate.” Both Powell and the government agree that
this Court has reviewed clerical errors in the judgment for the
first time on appeal and properly remanded for correction of those
errors. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir.
2001).
Here, there is no question that the government, pursuant to
the plea agreement, moved at Powell’s sentencing to dismiss count
three of the indictment. The district court duly granted the
motion. However, the judgment does not reflect that such count has
been dismissed. Therefore, a simple remand to correct such
clerical error is proper.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court erred in not informing Powell
of its authority to impose mandatory restitution; however, such
error was harmless. We also conclude the district court did not
abuse its discretion by deciding to deny Powell’s motion to
withdraw her plea without stating reasons, and by deciding not to
hold an evidentiary hearing on such motion. Therefore, we AFFIRM
17 the decision of the district court below; but we also REMAND to the
district court with an instruction to correct the judgment to
reflect dismissal of count three against Powell.
AFFIRMED and REMANDED with instruction.
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