* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

June 24, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-11333

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD M. TEUBNER,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:00-CR-214-1-D

--------------------

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

PER CURIAM:*

Richard M. Teubner appeals his conviction on his guilty plea

to wire fraud and aiding and abetting. The district court

sentenced Teubner to 24 months’ imprisonment and three years’

supervised release and ordered Teubner to pay $5,226 in

restitution.

Teubner challenges the denial of his motion for a

continuance. He asserts that the pro se motion challenged his
No. 02-11333

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plea and that the district court should have construed the motion

liberally as a request to withdraw the plea. 

We review the district court’s denial of a motion for a

continuance for an abuse of discretion. United States v. Shaw,

920 F.2d 1225, 1230 (5th Cir. 1991). To establish an abuse of

discretion, a defendant must demonstrate that the denial of a

continuance “severely prejudiced him.” Id. 

Teubner’s motion sought only a continuance and could not be

construed as a challenge to the plea. Teubner has not

demonstrated prejudice. The district court did not abuse its

discretion. Shaw, 920 F.2d at 1230.

Teubner challenges the voluntariness of his guilty plea. He

asserts that because counsel did not inform him that he could be

required to make restitution in the range of $600,000 to $1

million, he did not understand the consequences of the plea. 

A guilty plea involves the waiver of several constitutional

rights and must be made knowingly and voluntarily. Boykin v.

Alabama, 395 U.S. 238, 242-44 (1969). We review a challenge to a

plea to determine whether the district court varied from the

requirements of FED. R. CRIM. P. 11, and if so, whether any 

variance affected the defendant’s substantial rights. United

States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc);

FED. R. CRIM. P. 11(h). A variance affects substantial rights if

the defendant’s understanding of the full and correct information
No. 02-11333

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would have been likely to affect his willingness to plead guilty. 

Johnson, 1 F.3d at 302.

The rearraignment transcript demonstrates that the district

court explained and Teubner understood the nature of the offense

and the constitutional rights that he was waiving. The district

court warned Teubner that he faced a fine of $250,000, or double

the gross money gain, or double the gross money loss and that

restitution in the full amount was mandated by statute. Teubner

did not challenge the fact that restitution would be ordered. 

Teubner swore that he understood that the penalty could be more

severe than any penalty that had been predicted, that he could

not withdraw his plea if he received a more severe penalty than

he expected, that he had not been made any promises in exchange

for the plea, and that he was pleading guilty because he was

guilty. Teubner’s plea agreement provided that restitution was

mandatory.

The order for Teubner to pay $5,225 in restitution did not

exceed the $250,000 amount of liability of which he was informed

at rearraignment. See United States v. Glinsey, 209 F.3d 386,

394-96 (5th Cir. 2000). Teubner has not explained how counsel’s

omission regarding the extent of the restitution liability and

how the order to pay $5,226 in restitution affected his

willingness to plead. See id. at 395-96.

Teubner contends that his attorney’s assistance prior to and

at rearraignment was ineffective and invalidated his plea. He
No. 02-11333

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asserts that counsel should have investigated and determined that

the Government intended to seek $1 million in restitution. He

argues that he was prejudiced because when he entered a plea, he

did not understand the consequences of his plea. 

To demonstrate ineffective assistance, Teubner must show

that counsel’s deficient performance caused him prejudice. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to

establish either deficient performance or prejudice defeats the

claim. Id. at 697. 

Teubner does not argue that the amount of restitution he was

ordered to pay was error. Teubner asserts that if counsel had

investigated prior to entry of the plea, Teubner “might have gone

to trial on the merits of the indictment”; thus, Teubner has not

shown prejudice. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). 

Accordingly, the judgment of the district court is AFFIRMED.
No. 02-11333

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