United States v. Schmidt

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 28, 2003
• Docket: 02-11036
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 27, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-11036 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN SCHMIDT,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CR-40-1-A - - - - - - - - - -

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

John Schmidt appeals his guilty-plea conviction and sentence

for one count of tax evasion. Schmidt argues that the district

court abused its discretion in 1) denying his motion to continue

his sentencing hearing, 2) denying his motion to withdraw his

guilty plea, and 3) departing upward at sentencing.

Specifically, Schmidt argues that the denial of his motion to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-11036 -2-

continue deprived him of the opportunity to earn a reduced

sentence based on his assistance in a West Virginia healthcare

fraud case. Schmidt further contends that his motion to withdraw

his guilty plea should have been granted based on, among other

things, his alleged innocence of the insurance fraud allegations

contained in Schmidt’s Presentence Report. Schmidt extends the

same innocence argument as a basis for disputing the district

court’s upward departure. In addition, Schmidt challenges the

quality and quantity of the Government’s fraud evidence and

contends that the insurance fraud conduct was accounted for in

the sentencing guidelines calculations for the offense of

conviction. Schmidt further challenges certain enhancements

included in the district court’s upward departure calculations.

We have reviewed the record and the briefs submitted by the

parties and hold that the district court did not abuse its

discretion with respect to any of Schmidt’s assignments of error.

See United States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989);

United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997); United

States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984); United

States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994); United

States v. Millsaps, 157 F.3d 989, 997 (5th Cir. 1998).

AFFIRMED.