United States Court of Appeals

Fifth Circuit



## FILED

December 17, 2003

Charles R. Fulbruge III

Clerk REVISED JANUARY 6, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 the2

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 he r 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 unde r 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 indictment3

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 VA MC 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 arrive4

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,

p ursuant 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,

t his factual basis would be evidenced at trial by Powel l’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 collo quy, the district court advised Powell

that she faced a maximum of five years in prison and a $250,000

fine for count one, a nd a maximum of ten years in prison and a1 Section 3663A provides:

(b) The order of restitution shall require that such

defendant–

(1) in the case of an offense res ulting 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

se n tencing proceedings for convictions of, or plea agreements

relating to charges for, any offense

. . . that is

. . . an offense

against property under this title.” I d. § 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 $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 not6

allow withdrawal. Sentencing in the case was repeatedly continued.

On May 20, 2002, Powell, under new counsel, filed a written motion

t o withdraw her guilty plea on various grounds, including her

c ontention that the district court’s failure to advise her ab out

mandatory restitution violated Rule 11 and rendered her plea

involuntary. The district court, without assigning reasons or

conducting an e videntiary 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

count s 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 r eviews the challenge pursuant to the harmless error

standard. United States v. Johnson , 1 F.3d 296, 298 (5th Cir.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 m andatory minimum penalty provided by la w

, 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 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

affect ed the “substantial rights” of the defendant. J ohnson

, 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 compre hension 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 t he defendant about any mandatory minimum penalty and

about the court’s authority to order re stitution. 2 Although(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 b asis for the loss calculation” to be attributed to

Powell.

8 Powell’s plea agreement and PSR both discussed restitu tion, 3 and

the government during the plea colloquy discussed th e amount of

loss attrib utable 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 $1,266,317.0 6 pursuant to 18 U.S.C.

§ 3663, also known as the Victim and Witness Protection Act4 Section 3663 provides: “The court, when sentencing a

defendant convicted of an offense under this title

. . . may order,

in addition to or, i n the case of a misdemeanor, in lieu of any

other penalty authorized by law, that the defendant make

restituti on 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 proper ty 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 (“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 sa les reported by their

businesses ($239,810.94). I d. at 391. Because Glinsey had been

warned about a maximum possible fine of $1 million, we reduced the

amount of resti tution 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 substantial10

rights. While Powell acknowledges the holding of G linsey

, she

argues that because the restitution there was dis cretionary, not

mandatory, her case is dist inguishable. 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 defenda nt’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 omiss ion 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 restit ution or a fine ordinarily makes

little difference in its bite, and warning of one but not the other

does not require collateral relief.” G linsey

, 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 label11

“fine” or “restitution,” that affects a defendant’s substantial

righ ts. S ee 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,

Pow ell 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 G linse y

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

Deat h 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 determini ng 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 or der the full amount of restitution, without5 Section 3664 outlines the proper procedure for issuing and

enforcing restitution ordered pursuant to the VWPA and the MVRA.

12 regard for the defendant’s economic circumstances and ability to

pay. U

nited 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

schedul e of payments, not when deciding whether to order

restitution); see also 18 U.S.C. § 3664(f)(1)(A) (“In each order of

restituti on, the court shall order restitution to each victim in

the full amount of each victim's losses as determined by the court

and without c onsideration of the economic circumstances of the

defendant.”). 5

Be cause pleading guilty to certain crimes will result in an

order of mandatory restitution and because the district court

canno t 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

t hat 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 to13

the victim or victims which suffered lo ss 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 discret ion 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. U nited 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 assessmen t of the

evidence.”). A defendant does not have an absolute right to

withdraw her guilty plea. U nited 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 rea son.” I d. (citing former Fed. R.14

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 p lea. I d. 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. B rewster

, 137 F.3d at 858

(citation omitted). And the district court is not required to make

findings as to each of the Carr factors. I d. (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 defe ndant 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 are15

subject to the harmless error standard. M ergist

, 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 detaile d reasons for

denial set forth in its respons e 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 wei ghed

against withdrawal of Powell’s plea. The government also argues

that no evidentiary h earing 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 P ressley

.

In Pressley , which was decided prior to Carr , this Court remanded

where the district court seemed inc lined 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 specifically16

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. I d

. at 711. There, however, the district court

merely denied the motion after it satisfied itself that Pressley

was competent to understand the plea proceedings. I d. There is no

indication that Pressley or the pr osecution 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 dist rict 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.17

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. S ee 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 AFFIRM18 G:\opin\02-21211.opn.wpd the decision of the district court below; but we also REMAND to the

district cour t with an instruction to correct the judgment to

reflect dismissal of count three against Powell.

AFFIRMED and REMANDED with instruction.