United States v. Rast

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4501
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN Z. RAST,
Defendant - Appellant.
No. 06-4510
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN Z. RAST,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:02-cr-00948-GRA; 7:03-cr-00429-GRA)
Submitted: April 4, 2008 Decided: May 5, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Melissa W. Gay, GAY & ASSOCIATES, P.C., Mount Pleasant, South
Carolina, for Appellant. Reginald I. Lloyd, United States Attorney,
A. Lance Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Steven Z. Rast appeals his convictions and sentence for
bank robbery, using a firearm in relation to a violent crime, and
arson. On appeal, Rast argues the district court erred by denying
his motion to suppress, by denying his motion to withdraw his
guilty plea, by refusing to order a mental evaluation, and by
overruling his objections to the presentence report. Rast also
moves for this court to grant an extension of time to file a pro se
supplemental brief.
Rast contends statements he made to police were
involuntary, because despite his request for counsel, police failed
to secure counsel; further, Rast alleges a magistrate judge
harassed and threatened him with a lifetime in prison unless he
cooperated. This court reviews the factual findings underlying the
denial of a motion to suppress for clear error and the legal
conclusions de novo. United States v. Johnson, 400 F.3d 187, 193
(4th Cir. 2005). We construe the evidence in the light most
favorable to the government, as the prevailing party below. United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
Rast bases his argument on his testimony that police
officers threatened him and interrogated him without reading him
his rights under Miranda v. Arizona, 384 U.S. 436 (1966). His
testimony was contradicted by the investigating officers, and the
district court found Rast’s testimony was not credible. This court
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does not second-guess the district court’s credibility
determination. See United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989). Accepting the district court’s credibility
determination, the district court did not err in denying Rast’s
motion to suppress.
Rast next argues the district court should have ordered
a mental evaluation because he was in fact mentally unstable and
denying the request deprived him of his constitutional right to due
process. A district court should grant a motion to determine the
mental competency of a defendant “if there is reasonable cause to
believe that the defendant may presently be suffering from a mental
disease or defect rendering him mentally incompetent to the extent
that he is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.” 18
U.S.C.A. § 4241(a) (West 2000 & Supp. 2007). There was no evidence
in the record indicating Rast did not understand the nature and
consequences of the proceedings and could not assist in his
defense. Indeed, in making the motion for a mental evaluation,
Rast’s attorney stated, “He’s clearly competent.” Therefore, the
district court did not err in denying the motion.
Rast further asserts the district court should have
granted his motion to withdraw the guilty plea because his plea was
not voluntary. Rast claimed the U.S. Attorney misled him about the
consequences of his guilty plea by stating he was facing a minimum
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sentence of thirty-six years and promising him the opportunity to
earn a downward departure under Fed. R. Crim. P. 35. He added that
because he represented himself pro se and did not have access to a
law library he was unable to understand the consequences of waiving
his right to a jury trial.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does not
have an absolute right to withdraw a guilty plea. United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, the defendant
bears the burden of demonstrating that a “fair and just reason”
supports his request to withdraw his plea. Fed. R. Crim. P.
11(d)(2)(B). Factors considered in determining whether a defendant
has shown a fair and just reason for withdrawing a guilty plea
include: (1) whether the defendant offered credible evidence that
the plea was not knowing or voluntary; (2) whether the defendant
credibly asserted his legal innocence; (3) the delay, if any,
between the entry of the plea and the filing of the motion;
(4) whether the defendant had close assistance of competent
counsel; (5) whether withdrawal would cause prejudice to the
Government; and (6) whether withdrawal would inconvenience the
court and waste judicial resources. Moore, 931 F.2d at 248.
Although all the factors in Moore must be given appropriate weight,
the central question is whether the Rule 11 colloquy was properly
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conducted. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.
1995). This court closely scrutinizes the Rule 11 colloquy and
attaches a strong presumption that the plea is final and binding if
the Rule 11 proceeding is adequate. United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992).
Rast based his motion to withdraw his guilty plea on his
claim that the U.S. Attorney had promised him a lower sentence.
However, at the plea hearings, Rast stated he had not been promised
anything that was not contained in the plea agreement.
Additionally, he agreed that he was in fact guilty of the crimes
charged. During the plea colloquies, the district court properly
informed Rast of the rights he was forfeiting as a result of his
plea, informed him of the nature of the charges, determined the
voluntariness of his guilty pleas, and determined there was a
sufficient factual basis for the pleas. Accordingly, there were no
errors with respect to the Rule 11 colloquies. Moreover, the
remaining Moore factors weighed against allowing Rast to withdraw
his guilty plea. Therefore, the district court did not abuse its
discretion in denying Rast’s motion to withdraw his guilty plea.
Finally, Rast contends the district court erred in
overruling his objection to the portion of the presentence report
that stated he pointed a firearm at bank employees during the
commission of one of the robberies. When reviewing the district
court’s application of the Sentencing Guidelines, this court
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reviews findings of fact for clear error and questions of law de
novo. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
Pursuant to U.S. Sentencing Guidelines Manual § 2B3.1(b) (2002),
using a firearm during a robbery but not discharging it results in
a six-level enhancement.
In response to Rast’s objection that he did not point his
firearm at anyone during the April 22, 2002 robbery, the government
presented a witness who testified otherwise. The district court
found the government’s witness to be credible and that there was a
sufficient factual basis to apply the enhancement. In light of the
witness’s testimony that Rast pointed his gun at her and a bank
employee, it was not clear error for the district court to apply
the six-level enhancement. Under the remedial portion of United
States v. Booker, 543 U.S. 220 (2005), district courts can make
factual findings in applying sentence enhancements. United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
Accordingly, we affirm Rast’s convictions and sentence.
We deny his motion for an extension of time to file a pro se
supplemental brief. 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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