United States v. Sedric Ross , 147 F. App'x 936 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 12, 2005
No. 04-15105
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-00219-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
versus
SEDRIC ROSS,
Defendant-Appellant
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(September 12, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Sedric Ross appeals his conviction and sentence for aiding or assisting in the
preparation and presentation of fraudulent Form 1040 United States Individual
Income Tax Returns to the Internal Revenue Service, in violation of 26 U.S.C.
§ 7206(2). Ross asserts (1) the district court abused its discretion by not allowing
him to withdraw his guilty plea, and (2) the district court violated Blakely v.
Washington, 124 S. Ct. 2531 (2004), by imposing an obstruction-of-justice
enhancement based on judicial findings under a mandatory Guidelines system.
The Government cross-appeals Ross’s sentence arguing the district court
misapplied the tax evasion and relevant conduct Guidelines in calculating Ross’s
base offense level solely on the tax loss attributable to the two counts of the
indictment to which he pled guilty. We affirm Ross’s conviction, but vacate and
remand for resentencing.
I. DISCUSSION
A. Motion to withdraw guilty plea
Ross asserts his plea was defective in that he never admitted he intended to
commit the fraud alleged in the indictment. He asserts the district court erred in
failing to conduct an evidentiary hearing on his motion. He further claims his
counsel did not perform effectively. In particular, he claims his attorney was
inexperienced, failed to file suppression motions, did not interview witnesses, did
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not review tax returns, and inaccurately predicted his sentence. Lastly, he argues
his plea was not knowing and voluntary as was evidenced in his plea colloquy.
We will disturb a district court’s decision to deny a defendant's motion to
withdraw a guilty plea only when it constitutes an abuse of discretion. United
States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). After the district court has
accepted a defendant's plea, but before sentencing, a defendant may withdraw his
guilty plea if he “can show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). The provisions of this rule should be “liberally
construed” where applied to pre-sentence motions. McCarty, 99 F.3d at 385.
However, “[t]here is no absolute right to withdraw a guilty plea.” United States v.
Medlock, 12 F.3d 185, 187 (11th Cir. 1994). “The good faith, credibility and
weight of a defendant's assertions in support of a motion [to withdraw a guilty
plea] are issues for the trial court to decide.” United States v. Buckles, 843 F.2d
469, 472 (11th Cir. 1988). In determining if the defendant has met his burden for
withdrawal, “the district court may consider the totality of the circumstances
surrounding the plea,” including the following factors: “(1) whether close
assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
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government would be prejudiced if the defendant were allowed to withdraw his
plea.” Id. (internal citation omitted).
1. Whether the district court erred when it failed to conduct an
evidentiary hearing on Ross’s motion to withdraw his guilty plea.
A district court's refusal to hold an evidentiary hearing does not amount to
abuse of discretion when the court has conducted extensive Rule 11 inquiries prior
to accepting a guilty plea. United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.
1986). An evidentiary hearing is required when a defendant’s factual allegations
of circumstances undermining his plea are not contradicted in the record. United
States v. Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir. 1979) (internal citations
omitted).1 However, a hearing is not necessary if the defendant only seeks to
“relitigate representations made by himself, his lawyer, and the prosecutor in open
court.” Id.During the plea hearing, the court inquired as to Ross’s mental state. He
replied that he was suffering from nervousness, but nothing beyond what would be
expected at such a time. The Government informed him at the hearing as to the
nature of the charges, that he willfully and intentionally provided false information
on tax returns, and the court informed him of the consequences of pleading to a
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
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felony, the rights he was waiving, and the maximum sentence he faced under the
statute. The court also informed him that it would apply the Guidelines and that a
difference between a predicted sentence and the sentence he would receive would
not be an excuse to withdraw his plea.
The district court’s Rule 11 inquiry was sufficient in respect to all areas in
which Ross has claimed error.2 Ross’s allegations concern matters surrounding his
counsel’s performance, the maximum penalty he faced , and the nature of the
charges. These allegations are contradicted by his testimony at the plea colloquy.
As the district court conducted a sufficient Rule 11 inquiry in that regard, it did not
abuse its discretion in failing to hold an evidentiary hearing.
2. Whether the district court erred in finding Ross had not been denied
close assistance of counsel
Ross admitted at his plea colloquy that he had the close assistance of
counsel. “There is a strong presumption that the statements made during the [plea]
colloquy are true.” Medlock, 12 F.3d at 187. Consequently, a defendant “bears a
heavy burden to show his statements [under oath] were false.” United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
2
The district court did not inquire as to whether Ross was pleading guilty as a result of threats
or promises, other than those contained in the plea agreement. However, Ross did not aver in his
affidavits, or argue in this brief to this court that such promises or threats occurred. Accordingly,
this issue is abandoned. United States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005).
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Ross’s mere allegations he did not enjoy the close assistance of counsel do
little to show in what way his counsel’s failures affected his case. Counsel that is
merely inexperienced is not automatically ineffective. Chandler v. United States,
218 F.3d 1305, 1316 n.18 (11th Cir. 2000) (en banc) (citing United States v.
Cronic, 104 S. Ct. 2039, 2050 (1984)). Ross asserts his counsel should have
sought to suppress evidence seized from his office, but does not assert under what
theory that evidence warranted suppression. He further claims his counsel had
made an inaccurate prediction as to his sentence, however, the district court warned
Ross not to rely on any predictions as he could not withdraw his plea simply
because his actual sentence is more severe than anticipated. With regard to Ross’s
other allegations of incompetence, the district court was within its authority to
discredit any allegations that Ross’s counsel was ineffective which were contrary
to the statements he made under oath at the plea hearing. See United States v.
Freixas, 332 F.3d 1314, 1319 (11th Cir. 2003).
3. Whether the district court erred in finding that Ross's plea was
knowing and voluntary
The thrust of Ross's argument, other than his counsel was deficient, is that
his responses during the plea colloquy to the factual basis demonstrate a lack of
understanding and thus, his plea was “unknowing.” Rule 11 of the Federal Rules
of Criminal Procedure requires the district court to make certain a defendant’s plea
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was made knowingly and voluntarily. Ross admitted to the facts which formed the
basis of counts four and five of the indictment, to which he was pleading guilty.
He contested his involvement in the facts that formed the basis of the remaining
offenses for which the Government contended he was responsible. The court did
not err in finding that while the resolution of the facts would be germane at
sentencing, it did not affect the validity of the plea by undermining the factual
basis because he was not pleading guilty to these offenses. Admitting to the
factual basis with regard to counts four and five, but denying the factual basis with
regard to the rest of the fraud offenses would be reasonable of a defendant who did
not wish to admit to any offenses beyond those to which he was pleading guilty,
especially if he was raising a Blakely challenge.
Ross testified his counsel had briefly discussed how the Guidelines applied
to his sentence. He also acknowledged his understanding of the statutory
maximum for each count, as well as how the Guidelines would operate. However,
he was not provided with specific sentence ranges. There is a strong presumption
that Ross's acknowledgment of his understanding and his statements as to his
communications with the attorneys are true. See Medlock, 12 F.3d at 187. On
appeal, Ross has done little to challenge the truth of these statements.
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Ross did not seek to withdraw his plea until well after he pled guilty and
shortly before sentencing. “ The longer the delay between the entry of the plea and
the motion to withdraw it, the more substantial the reasons must be as to why the
defendant seeks withdrawal.” Buckles, 843 F.2d at 473 (citations omitted). In
light of the plea colloquy, and the length of time between the entry of the plea and
Pearson's motion to withdraw it, the district court's decision was not an abuse of
discretion.
B. Tax evasion and relevant conduct guidelines
The Government asserts the district court missapplied the tax evasion and
relevant conduct Guidelines. “We review the district court's application of the
Sentencing Guidelines de novo, and its findings of fact for clear error.” United
States v. Patti, 337 F.3d 1317, 1323 (11th Cir. 2003) (quotation marks and citation
omitted). The standards for reviewing the application of the Guidelines before the
United States v. Booker, 125 S. Ct. 738 (2005), decision apply after Booker as well.
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). “A sentencing
court under Booker still must consider the Guidelines, and, such consideration
necessarily requires the sentencing court to calculate the Guidelines sentencing
range in the same manner as before Booker.” Id. at 1178–79.
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A defendant who is found guilty of aiding in tax fraud that results in tax loss
in excess of $5,000 has a base offense level of 9. U.S.S.G. § 2T4.1.3 However, if
that fraud results in a tax loss of over $555,000, he has a base offense level of 18.
Id. Tax loss, for purposes of § 2T1.4, is “the total amount of loss that was the
object of the offense (i.e., the loss that would have resulted had the offense been
successfully completed.)” U.S.S.G. § 2T1.1(c)(1). The Guidelines commentary
directs a district court to "make a reasonable estimate based on the available facts."
U.S.S.G. § 2T1.1, comment. (n.1). “In determining the total tax loss attributable to
the offense (see § 1B1.3(a)(2)), all conduct violating the tax laws should be
considered as part of the same course of conduct or common scheme or plan unless
the evidence demonstrates that the conduct is clearly unrelated.” U.S.S.G. § 2T1.1,
comment (n.2). Conduct that can be considered part of the same course of conduct
can include a “continuing pattern of violations of the tax laws by the defendant.”
Id.
The alleged victim in all the cases of fraud was the IRS. The methods
asserted to carry out this fraud related to making false claims with regard to
taxpayer status, dependents, and Schedule A and C figures. This constitutes a
common scheme or plan as though it relates to separate taxpayers and returns, the
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Ross was sentenced using the November 1, 1997 version of the Sentencing Guidelines.
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IRS is a common victim and there is a similar modus operandi. U.S.S.G. § 1B1.3,
comment (n.9(a)). The district court's finding that his conduct with regard to the
other tax fraud is not in the same common scheme as counts four and five of the
indictment is clearly erroneous. As the Guidelines were incorrectly applied,
remand is appropriate. Crawford, 407 F.3d at 1179 (holding the district court’s
misinterpretation of the Guidelines “effectively means that the district court has not
properly consulted the Guidelines”) (citation omitted).
II. CONCLUSION
We affirm Ross’s conviction, but vacate and remand for resentencing. Since
Ross is being resentenced because of an incorrect application of the Guidelines, we
do not address his Booker argument. On remand, the district court should
resentence consistent with Booker, considering the Guidelines advisory range and
“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”
Booker, 125 S. Ct. at 757.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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