UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4868

JOSEPH JOHNSON, JR., a/k/a Joseph R.

Johnson, a/k/a Joe Johnson,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-96-180-A)

Submitted: April 30, 1998

Decided: June 24, 1998

Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Beth M. Farber, Chief

Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Thomas Gerard Connolly, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Joseph Johnson, Jr., pled guilty to providing false statements to a

financial institution in violation of 18 U.S.C.§ 1014 (1994). Johnson

received a sentence of twenty-one months' imprisonment and three

years of supervised release. He appeals his conviction and sentence.

Johnson's attorneys have filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising four issues but stating that

in their view there are no meritorious issues for appeal.* The issues

raised by Johnson's counsel are without merit. After a review of the

record, we affirm the judgment.

Johnson first alleges that the Interstate Agreement on Detainers Act

(IAD) was violated when he was returned to state custody after he had

been placed in federal custody in connection with the federal charges

pending in this case. At the time that the federal charges in this case

were instituted, Johnson was serving a state sentence. The Government issued a writ to bring him into federal custody for arraignment.

The Government then filed a motion to remand Johnson into temporary federal custody while this case was pending under the Interstate

Agreement on Detainers Act, 18 U.S.C. app. 2 (1994). The district

court granted the motion. Johnson then filed a motion for a transportation order requesting that he be returned to the state system so that he

could continue to earn good time credits while awaiting trial. The

court granted the motion.

By filing the motion for a transportation order requesting that he

be returned to the state system, Johnson waived any rights or protec-

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*Johnson has been informed of his right to file a pro se supplemental

brief, but failed to file a timely brief after being granted two extensions

by the court. The court denied a third extension. We deny Johnson's

motion for leave to file his untimely pro se supplemental brief.

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tions that he may have had under the IAD. A prisoner waives his

rights when he requests treatment in a manner inconsistent with the

provisions of Article IV(c) or (e) of the IAD. See United States v.

Odom, 674 F.2d 228, 230 (4th Cir. 1982); Webb v. Keohane, 804 F.2d

413, 414-15 (7th Cir. 1986) (noting that all circuits that have reached

the issue have held that rights under the IAD are waived by a prisoner's request to be returned to his original place of imprisonment). In

addition, other circuits have held that a defendant who pleads guilty

also waives any claim he would have had under the IAD. See Baxter

v. United States, 966 F.2d 387, 389 (8th Cir. 1992); Kowalak v.

United States, 645 F.2d 534, 537 (6th Cir. 1981).

Johnson next alleges that the district court erred in refusing to

allow him to withdraw his guilty plea. During the sentencing proceeding, Johnson made an oral pro se motion to withdraw his guilty plea.

In support of his motion, Johnson asserted that: (1) the Government

threatened to enhance his sentence if he insisted upon a jury trial, (2)

he feared the consequence of not pleading guilty because he was

already serving a five-year sentence, (3) his attorney told him that he

would receive a two-point enhancement for perjury if he went to trial,

(4) but for his counsel's errors, he would have insisted upon a jury

trial, (5) if he knew that the court would consider during sentencing

an offense he committed during the pendency of the federal charges

he would not have pled guilty, and (6) he was not guilty of the offense

in count one. The court denied the motion and found that all Johnson's claims were "palpably false," and that during the Fed. R. Crim.

P. 11 hearing, Johnson answered questions regarding coercion and did

not raise these issues.

Rule 32(d) of the Federal Rules of Criminal Procedure governs a

motion to withdraw a guilty plea. Johnson bears the burden to show

a fair and just reason for the withdrawal. See United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991). Factors relevant to establishing a

fair and just reason include:

(1) whether the defendant has offered credible evidence that

his plea was not knowing or not voluntary, (2) whether the

defendant has credibly asserted his legal innocence, (3)

whether there has been a delay between the entering of the

plea and the filing of the motion, (4) whether defendant has

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had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6)

whether it will inconvenience the court and waste judicial

resources.

Id. This court reviews the denial of a motion to withdraw a guilty plea

for abuse of discretion. See United States v. Lambert, 994 F.2d 1088,

1093 (4th Cir. 1993). The district court's factual findings in support

of its decision to deny the motion will be overturned only if they are

clearly erroneous. See United States v. Suter , 755 F.2d 523, 525 (7th

Cir. 1985).

Johnson did not offer any evidence of threats, fear, coercion, his

counsel's errors, or his innocence. Further, Johnson should have

known about these issues at the time of the Rule 11 colloquy. He did

not assert any of these claims during the hearing and acknowledged

that he was entering into the agreement knowingly and voluntarily.

We therefore find that Johnson did not meet his burden of demonstrating a fair and just reason for the withdrawal. See Moore, 931 F.2d

at 248.

Third, Johnson alleges that the district court erred in finding that

the fraudulent activity alleged in the dismissed counts of the indictment was relevant conduct for the purposes of the loss determination

in sentencing. Johnson pled guilty to count one in the indictment. The

loss calculation used at sentencing was based upon conduct forming

the charges in counts four and five, which were dismissed after the

court accepted the guilty plea. The court found that Johnson committed all the acts charged in the indictment, and Johnson did not object

to the findings.

District courts may take "relevant conduct" into account in determining a defendant's sentence whether or not the defendant has been

convicted of the charges constituting the relevant conduct. See U.S.

Sentencing Guidelines Manual § 1B1.3 (1997); United States v.

Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). Whether the government

has met its burden of proof is a question of fact reviewed for clear

error. See Jones, 31 F.3d at 1316 (citing United States v. Daughtrey,

874 F.2d 213, 217 (4th Cir. 1989)). In assessing relevant conduct, the

sentencing court should consider "`such factors as the nature of the

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defendant's acts, his role, and the number and frequency of repetitions

of those acts, in determining whether they indicate a behavior pattern.'" United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir. 1992)

(quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir. 1990)).

All of the conduct attributed to Johnson for sentencing purposes

was committed solely by him and showed a similarity of method and

purpose. In addition, Johnson committed the acts within a few months

of each other. Johnson pled guilty to attempting to fraudulently obtain

a loan from a credit union using a false social security number and

statement of annual income. The conduct in count four involved Johnson applying for an automobile loan using a false social security number, date of birth, and the same false earning statement as in count

one. Count five involved a similar scheme with similar misrepresentations, but made over the phone. Based upon these factors, we find that

the court did not clearly err in finding that counts four and five should

be included as relevant conduct.

Finally, Johnson alleges that the district court erred in refusing to

decrease his offense level based upon acceptance of responsibility.

Johnson pled guilty after the opening statements in his trial. We

review the district court's determination regarding acceptance of

responsibility for clear error. See United States v. Curtis, 934 F.2d

553, 557 (4th Cir. 1991) (citing United States v. Harris, 882 F.2d 902,

905 (4th Cir. 1989)). The district court judge has great discretion in

applying this adjustment. See United States v. White, 875 F.2d 427,

430-31 (4th Cir. 1989). In determining whether the defendant is qualified for the reduction, the district court should consider whether the

defendant truthfully admits the conduct comprising the offenses of

conviction. See USSG § 3E1.1, comment. (n.1(a)); United States v.

Martinez, 901 F.2d 374, 377 (4th Cir. 1990). Timeliness of acceptance is a factor to consider. See United States v. Jones, 31 F.3d 1304,

1315 (4th Cir. 1994). Entering a guilty plea does not automatically

entitle a defendant to a reduction for acceptance of responsibility. See

Harris, 882 F.2d at 905. In this case, Johnson pled guilty only after

his trial began and then attempted to withdraw it during sentencing.

Thus, we find that the district court did not clearly err in refusing to

grant the reduction.

We deny Johnson's counsel's motion for leave to withdraw. This

court requires that counsel inform his or her client, in writing, of the

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client's right to petition the Supreme Court of the United States for

further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.

We deny Johnson's motion to expedite as moot. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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