United States v. Faye Shilling , 501 F. App'x 617 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50019
Plaintiff - Appellee, D.C. No. 2:09-cr-00322-DDP-1
v.
MEMORANDUM*
FAYE OPAL LATTIMORE SHILLING,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted December 3, 2012**
Pasadena, California
Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.
Faye Shilling appeals her guilty plea and sentence for two counts of wire
fraud in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court did not plainly err in accepting Shilling’s plea even though
she later informed the U.S. Probation office that she had been diagnosed with
paranoid schizophrenia in the late 1980s. There was no evidence before the district
court that her guilty plea was not voluntary, or that she did not understand the
rights she relinquished by pleading guilty and the consequences of doing so. See
Fed R. Crim. P. 11(b). In response to the court’s questions, Shilling and her
counsel told the court that she understood everything that was occurring and the
consequences of pleading guilty. She stated that she agreed with the government’s
offer of proof as to the facts underlying the charged offenses, and her attorney
averred that Shilling was competent and had cooperated in her defense.
“Statements made by a defendant during a guilty plea hearing carry a strong
presumption of veracity in subsequent proceedings attacking the plea,” United
States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008), and “[t]rial counsel’s
assurances to the court are relevant because ‘a defendant’s counsel is in the best
position to evaluate a client’s comprehension of the proceedings.’” Stanley v.
2
Cullen, 633 F.3d 852, 861 (9th Cir. 2011) (quoting Hernandez v. Ylst, 930 F.2d
714, 718 (9th Cir. 1991)).1
The district court also did not clearly err in calculating the amount of loss
from the fraud for purposes of determining Shilling’s offense level. Under the
Sentencing Guidelines’ treatment of fraud convictions, any of Shilling’s criminal
acts and the foreseeable criminal acts of her co-participants that “were part of the
same course of conduct or common scheme or plan as the offense of conviction”
are relevant to her sentence. See U.S. Sentencing Guidelines Manual § 1B1.3(a).
Thus, “conduct which was part of the scheme is counted, even though the
defendant was not convicted of crimes based upon the related conduct.” United
States v. Fine, 975 F.2d 596, 600 (9th Cir. 1992) (en banc). The district court
therefore did not err in including the full amount of loss for the overall scheme in
its calculation.
AFFIRMED.
1
Nor was there anything before the district court that would indicate that a
sua sponte competency hearing was warranted. Compare U.S. v. Fernandez, 388
F.3d 1199, 1251 (9th Cir. 2004) (“Among the factors our court considers to
determine whether there was sufficient evidence of incompetence are the
defendant’s irrational behavior, his demeanor in court, and any prior medical
opinions on his competence.”) with U.S. v. Dreyer, 693 F.3d 803, 813 (9th Cir.
2012).
3