United States v. Glinsey

Revised May 2, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60735
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CURTIS GLINSEY,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Mississippi
April 10, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.
EDITH H. JONES, Circuit Judge:
Curtis Glinsey (“Glinsey”), federal prisoner #10779-042,
appeals from the judgment and sentence entered by the district
court after Glinsey pled guilty to illegally acquiring and
redeeming food stamps as well as attempting to tamper with a
witness. Having reviewed the record and briefs, this court finds
error only because Glinsey was misinformed by the district court at
his guilty plea hearing concerning the possibility and amount of
restitution that might be ordered. We reduce the amount of
restitution to $1,000,000, and affirm the district court’s judgment
as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the presentence report (“PSR”), federal
agents from the United States Department of Agriculture (“USDA”)
uncovered a possible conspiracy involving the unlawful acquisition
and redemption of food stamps by three businesses in Clarksdale,
Mississippi: New Eastgate Grocery, Roundyard Grocery, and One-Stop
Grocery. Glinsey operated the New Eastgate Grocery and opened the
other two businesses under the names of individuals who had no
prior dealings with the food stamp program. Derix Dugan (“Dugan”)
and Rodney Paden (“Paden”) reported that they were solicited and
paid by Glinsey to sign as the operators of Roundyard Grocery and
One-Stop Grocery, respectively. Glinsey also had each person apply
for a food-stamp license for his respective store. In each case,
Glinsey either owned or leased the property on which the business
operated. Dugan testified that Glinsey gave him money for the
purpose of illegally purchasing food stamps; Paden claimed that he
never worked at One-Stop and went there only to receive cash
payments from Glinsey for the use of Paden’s name on the business.1
1
The government’s investigation revealed that various steps were taken
to avoid detection. For example, stores with a food-stamp license must be
recertified after approximately 10-12 months of operating under the license. In
order to pass recertification, a business would have to show that it had
purchased and then sold inventory equivalent to the amount of food stamps
redeemed. Thus, to avoid a recertification audit, Glinsey would simply shut down
one store and open another store under a new name.
2
In April 1997, USDA agents used undercover operatives to
make multiple controlled sales of food stamps to Glinsey and other
co-conspirators. On April 8 and 9, Glinsey and Dugan made four
separate purchases of food stamps for discounted amounts of cash at
New Eastgate Grocery. Other witnesses, who were cashiers at the
various stores, corroborated that Glinsey would purchase food
stamps illegally and then redeem the stamps through the various
businesses.2
Sales tax and other records revealed that from June 1995
through May 1997, Glinsey and his co-conspirators illegally
redeemed approximately $1,506,128 in food stamps through the three
businesses. During this same period, the businesses reported gross
sales of only $239,810.94, for a difference of $1,266,317.06. For
sentencing purposes, Glinsey was determined to have purchased and
redeemed between $800,000 and $1.5 million in food stamps.
As part of their investigation, USDA agents recruited
Dugan to testify against Glinsey. After learning that Dugan would
assist the government, Glinsey attempted to have Dugan killed. He
offered Michael Ratliff (“Ratliff”) $10,000 to arrange the murder.
Ratliff secretly recorded his conversation with Glinsey and
eventually made the tape available to the government.
2
One of the cashiers, Delandra Counsolor, stated that Glinsey told her
not to deal directly with food stamp recipients who came into the store to sell
their food stamps. She was directed to send the recipient to the back of the
store to meet with Glinsey personally. Another cashier, Mary Jenkins, testified
that very few food stamps were taken for eligible food items.
3
Shortly before trial, Glinsey pled guilty to a
superseding indictment charging him with conspiracy to acquire and
redeem food stamps unlawfully, unlawful acquisitions of food
stamps, and unlawful redemption of food stamps. As part of his
plea agreement, Glinsey also waived indictment on, and pled guilty
to, a one-count information charging him with attempted witness
tampering.
Given his participation in the conspiracy, Glinsey’s base
offense level was 6 under U.S.S.G. § 2F1.1(a). Eleven levels were
added because the amount of loss was between $800,000 and $1.5
million. § 2F1.1(b)(1)(L). Two levels were added since the
offense involved more than minimal planning. § 2F1.1(b)(2)(A).
Four more levels were added for Glinsey’s leadership role in the
criminal activity, which involved more than five participants or
was otherwise extensive. § 3B1.1(a). The probation officer
recommended that Glinsey’s offense level be increased by two for
his obstructive behavior and, in particular, his attempt to have
Dugan killed. From the adjusted level of 25 for the food stamp
offenses,3 three levels were subtracted for acceptance of
responsibility. Glinsey’s final offense level was 22, which, with
a category I criminal history, put the imprisonment range at 41 to
51 months.
3
Since the offense level for witness tampering was five levels lower
than that for the food stamp violations, the food stamp guidelines applied for
sentencing purposes. U.S.S.G. §§ 3D1.2(c), 3D1.3(a).
4
The district court denied Glinsey’s objections to the PSR
and sentenced him to 51 months on each count of conviction, with
the terms to run concurrently. The district court also ordered
restitution in the amount of $1,266,317.06 pursuant to 18 U.S.C. §§
3563, 3583. No fine was imposed. Glinsey timely appealed the
effectiveness of his counsel, the imposition of restitution, the
manner in which his offense level was calculated, and the
voluntariness of his plea.
II. ANALYSIS
Glinsey argues that he should be allowed to withdraw his
guilty plea for several reasons: (1) his counsel was ineffective,
(2) the district court violated Rule 11 by ordering restitution
without informing him that restitution was possible, (3) his
sentence was improperly enhanced since he was not a leader in a
conspiracy, and (4) his plea was involuntary. Although issues (1),
(2) and (4) overlap, we review each issue in turn.4
1. Ineffective assistance of counsel
Glinsey raises his ineffective assistance of counsel
claim for the first time on appeal. Glinsey contends that his
attorneys were ineffective for two reasons: (1) failing to move to
suppress an audio tape implicating Glinsey in an attempt to have
4
We review questions of law de novo. United States v. Rico, 51 F.3d
495, 500 (5th Cir. 1995). The district court’s factual findings are reviewed for
clear error. United States v. Howard, 106 F.3d 70, 73 (5th Cir 1997). Since
Glinsey is proceeding on appeal pro se, this court must construe his claims
liberally rather than holding him to the standards expected of lawyers. See
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 (1972).
5
Dugan murdered, and (2) failing to investigate different methods of
calculating loss used in other food stamp cases.5
A voluntary guilty plea waives all nonjurisdictional
defects in the proceedings against the defendant. United State v.
Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). This includes
claims of ineffective assistance of counsel except insofar as the
ineffectiveness is alleged to have rendered the guilty plea
involuntary. Unsurprisingly, Glinsey asserts exactly this
connection between counsel’s alleged errors and his guilty plea.
And although we ordinarily review a claim of ineffective assistance
raised on direct appeal “only in rare cases where the record
allowed us to evaluate fairly the merits of the claim,” United
States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), this is such
a rare case, since the record clearly belies Glinsey’s claims.
In order to establish ineffective assistance of counsel,
Glinsey must show that (1) his counsel’s performance was deficient
in that it fell below an objective standard of reasonableness, and
(2) the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 689-94, 104 S. Ct. 2052, 2065-68
(1984). With respect to guilty pleas, the prejudice requirement
“focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process.” Hill v.
5
Glinsey also argues that his counsel was ineffective for not
informing the district court of a proposed amendment to the sentencing
guidelines. Since sentencing courts must apply the guidelines in effect at the
time of sentencing, 18 U.S.C. § 3553(a)(4)(A), Glinsey’s claim is without merit.
6
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). Thus,
Glinsey “must show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Id.
a. Motion to suppress the audio tape
Glinsey avers that his counsel was ineffective for
failing to move to suppress the audio tape in which Glinsey was
caught trying to arrange the murder of Dugan. Glinsey contends
that the tape was inadmissible under Title III of the Omnibus Crime
and Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(2)(d),
since Ratliff made the tape for the purpose of extorting money.
At the time Glinsey entered into the plea agreement, the
food stamp trial was roughly two weeks away. Although the
attempted witness tampering had already occurred and Glinsey’s bond
had been revoked partly for that reason,6 no charge of attempted
witness tampering had yet been filed. Since a motion to suppress
the tape would have been premature as to a witness tampering
charge, and the tape was irrelevant to the food stamp crimes,
Glinsey’s counsel had no forum and no opportunity to move to
suppress. Counsel was not ineffective for failing to move to
suppress.
Furthermore, Glinsey does not show that he was prejudiced
by his attorney’s omission. A transcript of the tape was offered
6
The court also based revocation of the bond on Glinsey’s possession
of a firearm.
7
at the bond revocation hearing, where Ratliff (who had made the
tape) testified under oath to the events surrounding Glinsey’s
attempt to have Dugan murdered, including the recorded
conversation. Glinsey does not claim, nor does the record support,
that his attorney was deficient in not objecting to this testimony.
The merely cumulative transcript of the tape recording was not
constitutionally prejudicial to Glinsey.
b. Failure to investigate loss calculation
Glinsey also contends that his counsel was ineffective
for failing to investigate cases that would show that the district
court overstated its loss calculation. To establish his failure to
investigate claim, Glinsey must allege with specificity what the
investigation would have revealed and how it would have benefitted
him. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
He must also show a reasonable probability that, but for counsel’s
unprofessional errors, the sentence would have been significantly
less harsh. Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
Glinsey fails to make this showing for two reasons.
First, a district court’s loss determination under § 2F1.1(b)(1) is
a factual finding reviewed for clear error. United States v.
Oates, 122 F.3d 222, 225 (5th Cir. 1997). The loss calculation
need not be precise and will be affirmed so long as it reasonably
estimates the loss using reasonably available information. See §
2F1.1, cmt. n.8. Accordingly, “the court can adopt facts contained
8
in a PSR without inquiry, if those facts had an adequate
evidentiary basis and the defendant does not present rebuttal
evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th
Cir. 1994). If no relevant affidavits or other evidence is
submitted to rebut the information in the PSR, the district court
is free to adopt the PSR findings without further inquiry or
explanation. United States v. Mir, 919 F.2d 940, 943 (5th Cir.
1990). The defendant bears the burden of demonstrating that the
information in the PSR is materially untrue. United States v.
Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). Glinsey has not
carried this burden.
The district court calculated Glinsey’s loss based on the
total amount of food stamps redeemed ($1,506,128) less the reported
gross sales ($239,810.94), for a total of $1,266,317.06. Glinsey’s
offense level was increased by eleven because the loss was found to
be between $800,000 and $1.5 million. § 2F1.1(2)(A). Glinsey does
not dispute the finding that he illegally purchased and redeemed
over $1.2 million in food stamps. At the hearing, his counsel
argued that the amount of money paid by Glinsey to purchase the
food stamps, typically 70-80 percent of the value of the stamps,
should have been subtracted from the face value of the food stamps
to arrive at the total loss.
But no other evidence was offered to support this
contention. The cases Glinsey cites do not show that the district
9
court’s reliance on the actual amount of food stamps purchased and
redeemed is unreasonable. This court has rejected the argument
that restitution is limited to the amount of profit made in the
illegal food stamp fraud scheme. See United States v. Lewis, 104
F.3d 690 (5th Cir. 1996). Lewis held that the amount of
restitution should be the full face value of the food stamps for
which the defendant illegally obtained cash redemptions from the
USDA. Id. at 692-93. As this is the amount used by the district
court, there was no error.
Second, the cases cited by Glinsey do not support his
assertion that the district court’s loss calculation was erroneous.
In fact, in two of the cases he cites, the courts determined the
loss based on the face value of the food stamps that were illegally
obtained and redeemed, which was the method used by the district
court in this case.7
Neither branch of Glinsey’s ineffectiveness claim is
sustainable.
2. Appropriateness of ordering restitution
Glinsey argues that the district court erred in ordering
restitution since neither the plea agreement nor the rearraignment
colloquy mentioned the possibility of restitution, though he was
told he could face a fine of up to $1 million.
7
See United States v. Cheng, 96 F.3d 654, 656-57 (2d Cir. 1996);
United States v. Barnes, 117 F.3d 328, 334-35 (7th Cir. 1997).
10
Under 18 U.S.C. § 3663(a)(1)(A), a sentencing court may
order restitution if, as in the present case, a loss was sustained
by the victim as a result of an offense. The court’s authority
exists notwithstanding the lack of an agreement between the
prosecution and defense on restitution. Compare 18 U.S.C.
§ 3663(a)(3).
To confirm the voluntariness of a guilty plea, Rule 11
requires, among other things, that the district court “address the
defendant personally in open court and inform the defendant ...,
when applicable, that the court may also order the defendant to
make restitution to any victim of the offense.” Fed. R. Crim. P.
11(c)(1). In reviewing whether the district court complied with
Rule 11, this court “conduct[s] a straightforward, two-question
‘harmless error’ analysis: (1) Did the sentencing court in fact
vary from the procedures required by Rule 11, and (2) if so, did
such variance affect substantial rights of the defendant?” United
States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993)(en banc); see
also Fed. R. Crim. P. 11(h) This court’s inquiry may include
reviewing the written plea agreement, the transcript of the
sentencing hearing, and the sentence actually imposed. Johnson, 1
F.3d at 298. A “substantial right” is violated if “the defendant’s
knowledge and comprehension of the full and correct information
11
would have been likely to affect his willingness to plead guilty.”
Id. at 302.8
Glinsey was not informed of the possibility of paying
restitution in the plea agreement or at the rearraignment colloquy.
Thus, the district court unfortunately varied from the procedures
required by Rule 11. However, this is only one prong of the
Johnson analysis. Glinsey must also show that the district court’s
variance affected his substantial rights.
Toward this end, Glinsey relies on United States v. Corn
(a pre-Johnson case) to argue that the district court’s ordering
restitution without prior notice affected his substantial rights.
836 F.2d 889 (5th Cir. 1988). In Corn, after pleading guilty to
contempt, the defendant was ordered to pay over $6 million in
restitution. The defendant received no notice at the guilty plea
hearing that restitution might be ordered. Id. at 895. This court
reversed the district court because “the imposition of a
restitution order in so large an amount, without explicit prior
notice of the possibility of restitution, could scarcely be deemed
either harmless or not to affect the defendant’s substantial
rights.” Id. at 895. On remand, the district court was instructed
8
Although Glinsey failed to raise his Rule 11 claim below, according
to our caselaw, we do not review it for plain error. See United States v. Reyna,
130 F.3d 104, 107 n.2 (5th Cir. 1997); United States v. Still, 102 F.3d 118, 122
n.9 (5th Cir. 1996), cert. denied, 522 U.S. 806, 118 S. Ct. 43 (1997). But
compare United States v. Ulloa, 94 F.3d 949, 955 (5th Cir. 1996) (opinion of one
judge).
12
to sentence the defendant without imposing restitution or to allow
the defendant to withdraw his guilty plea.9
Unlike Corn, where the defendant knew only that he faced
some fine or other, Glinsey pled guilty after the court’s warning
that he could be fined up to $1 million. But, in lieu of the
maximum fine, the district court imposed restitution in the amount
of $1,266,317.06.10 Thus, under Johnson, the question is whether
Glinsey’s knowing about the roughly $266,000 difference (between
the amount of the possible fine he was informed of and the
restitution actually ordered) would have affected his willingness
to plead guilty.
Even assuming that the roughly $266,000 difference might
have affected his decision to plead guilty, the judgment need not
be vacated. We may reduce the order of restitution to $1 million,
an amount that does not infringe his substantial rights. Glinsey
is not prejudiced so long as his liability does not exceed the
maximum amount that the court informed him could be imposed as a
fine. It is the amount of liability, rather than the label
‘restitution,’ that affects Glinsey’s substantial rights. “Whether
9
See also United States v. Showerman, 68 F.3d 1524, 1528 (2d Cir.
1995)(holding that the failure to mention the possibility of restitution at the
Rule 11 hearing is not harmless error even if the restitution imposed is less
than the maximum fine the defendant understood he might receive). The Second
Circuit’s analysis constitutes the minority position on this issue.
10
After ordering restitution, the district court stated that “[N]o fine
is being ordered due to the defendant’s inability to pay, and the -- or order
here concerning restitution.” A fair reading of this quote in context shows that
the district court felt Glinsey would not be able to pay a fine above and beyond
the restitution order. Thus, only restitution was ordered.
13
the amount to be paid is classed as restitution or a fine
ordinarily makes little difference in its bite, and warning of one
but not the other does not require collateral relief.” United
States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). Although
Stumpf concerned collateral (as opposed to direct) relief, the
reasoning is the same in the present case. Under the modified
judgment, Glinsey is obliged to pay no more than he was warned of
at the time of his guilty plea. This modification reconciles the
court’s failure to advise Glinsey of restitution with its
offsetting warning of his exposure to a fine.
In so holding, this court follows the approach adopted by
the First Circuit in United States v. Padin-Torres, 988 F.2d 280,
283-85 (1st Cir. 1993)(reducing the restitution order to the
maximum fine amount which the defendant was warned about at his
plea hearing). This approach is also consistent with similar
decisions of six other circuits.11
Moreover, Glinsey has not suggested why having to pay
restitution of $ 1 million as opposed to a fine of $1 million would
“affect his willingness to plead guilty.” Johnson, 1 F.3d at 302.
Nor do we find any reason in the record. Although restitution was
not mentioned in the plea agreement or at the hearing, Glinsey
11
See United States v. McCarty, 99 F.3d 383, 386 (11th Cir. 1996);
United States v. Gabriele, 24 F.3d 68, 70-71 (10th Cir. 1994); United States v.
Fox, 941 F.2d 480, 484 (7th Cir. 1991); United States v. Crawford, 169 F.3d 590,
592 (9th Cir. 1999); United States v. Miller, 900 F.2d 919, 921 (6th Cir. 1990);
United States v. Fentress, 792 F.2d 461, 465-66 (4th Cir. 1986).
14
stipulated that he participated in a conspiracy exceeding $1
million, and he was aware that restitution might be imposed. The
presentence report stated that “restitution may be ordered in this
case ... in the amount of $1,266,317.06 ...” and that “[i]n
accordance with the provisions of U.S.S.G. Section 5E1.1,
restitution shall be ordered.” ¶¶ 100, 101. Glinsey and his
attorney both certified that they had read the report, and neither
objected to the possibility of having to pay restitution. In
contrast, Glinsey vigorously challenged the amount of restitution.
These facts reinforce our conclusion that Glinsey’s having to pay
restitution in the amount of $1 million, instead of a fine, would
not have affected his willingness to plead guilty so long as his
total liability does not exceed the maximum fine that could have
been imposed.
This court, therefore, modifies the restitution amount to
$1 million.
3. Glinsey’s leadership role in the conspiracy
Glinsey contends that the district court erred in
adjusting his sentencing level upward for his leadership role in
the offense under U.S.S.G. § 3B1.1(a).12 Glinsey avers that the
evidence was insufficient to show that five participants were
involved or that the food stamp scheme was otherwise extensive. In
12
Glinsey also argues that the district court erred in enhancing his
offense level for obstruction of justice and more than minimal planning. Glinsey
did not raise the objection below, so this court reviews for plain error. United
States v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992). None exists.
15
particular, Glinsey challenges the district court’s finding that
the store cashiers, Jenkins and Counsolor, were participants.
This court reviews a district court’s factual
determinations in sentencing under no less generous a standard than
that of clear error. United States v. Ronning, 47 F.3d 710, 711
(5th Cir. 1995). In determining whether the defendant had a
leadership (as opposed to a supervisory) role, the sentencing court
should consider the following factors:
the exercise of decision making authority, the
nature of participation in the commission of
the offense, the recruitment of accomplices,
the claimed right to a larger share of the
fruits of the crime, the degree of
participation in planning or organizing the
offense, the nature and scope of the illegal
activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1, cmt. n.4. “A ‘participant’ is a person who is
criminally responsible for the commission of the offense, but need
not have been convicted.” Id., cmt. n.1.13 All that is required
is that the person participate knowingly in some part of the
criminal enterprise. United States v. Boutte, 13 F.3d 855, 860
(5th Cir. 1994). In assessing whether an organization is
“otherwise extensive,” all persons involved during the course of
the entire offense are to be considered.” U.S.S.G. § 3B1.1, cmt.
n.3. “Thus, a fraud that involved only three participants but used
13
“Offense” refers to the contours of the underlying scheme, which is
broader than the offense charged. United States v. Wilder, 15 F.3d 1292, 1299
(5th Cir. 1994).
16
the unknowing services of many outsiders could be considered
extensive.” Id.
Even if Counsolor and Jenkins were not participants,
Glinsey still directed an “otherwise extensive” scheme to illegally
purchase and redeem food stamps. Paden, Dugan, Counsolor, and
Jenkins all testified that Glinsey was the leader of the food stamp
operation and that he merely paid the others for the use of their
names or for their assistance. As a result of this operation,
Glinsey kept most of the enormous profits for himself. In light of
the record as a whole, Glinsey was involved in an “otherwise
extensive” scheme to defraud the government, and the district court
did not clearly err in adjusting Glinsey’s base level upward.14
4. The voluntariness of Glinsey’s plea
Glinsey contends that his guilty plea was not knowingly,
voluntarily, and intelligently entered because his plea agreement
did not state that restitution would be imposed; his counsel did
not investigate authorities dealing with loss calculation; and his
counsel failed to investigate a statutorily and factually supported
defense that would have prohibited the introduction of an illegally
obtained, inculpatory audio tape. As a result, Glinsey argues that
he should be allowed to withdraw his guilty plea.
14
This holding is consistent with Barnes, 117 F.3d at 336-38, in which
the Seventh Circuit upheld the leadership adjustment where the defendant had
organized and led an extensive food stamp scheme among his employees, exchanged
food stamps for cash with USDA undercover agents, and purchased food stamps with
his own money.
17
In general, “[t]here is no absolute right to withdraw a
guilty plea.” United States v. Grant, 117 F.3d 788, 789 (5th Cir.
1997). Prior to sentencing, “the court may permit the plea to be
withdrawn if the defendant shows any fair and just reason.” Fed.
R. Crim. P. 32(e). But “the standard for withdrawal of a guilty
plea after sentencing is considerably more stringent. A defendant
seeking to withdraw a plea of guilty at the post-sentencing stage
is obligated to show ‘a fundamental defect which inherently results
in a complete miscarriage of justice’ or ‘an omission inconsistent
with the demands of fair procedure.’” United States v. Hoskins,
910 F.2d 309, 311 (5th Cir. 1990)(quoting Hill v. United States,
368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962)).
The stringent test for overcoming a guilty plea after
sentencing is not satisfied here. Glinsey has not asserted his
innocence and has delayed in moving to withdraw his plea. He was
represented by counsel at every stage of the proceedings in the
district court. The district court accepted his guilty pleas only
after addressing Glinsey personally in open court pursuant to Rule
11 and determining that he had reviewed the plea agreement
completely and was voluntarily entering his plea. These facts
suggest that Glinsey is not even entitled to withdraw his plea
18
under Rule 32(e) yet alone the additional standards for withdrawing
a plea post sentencing.15
Glinsey faces an additional problem. He claims that his
plea was involuntary because his counsel was ineffective and the
district court failed to warn him that restitution might be
imposed. We have rejected these contentions and modified the
restitution order consistent with Glinsey’s understanding of his
monetary exposure. The plea cannot have been involuntary because
of non-existent or immaterial errors.
The contemporaneous court record shows that Glinsey
voluntarily, knowingly, and intelligently entered his guilty plea.
At some point, Glinsey changed his mind about his plea, but “a mere
change of mind is insufficient to permit the withdrawal of a guilty
plea before sentencing, much less after sentencing.” United States
v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990).16
15
Under the more lenient standard of Rule 32(e), the district court
considers seven factors: “(1) the defendant has asserted his innocence; (2)
withdrawal will prejudice the government; (3) the defendant delayed in filing his
withdrawal motion; (4) withdrawal would substantially inconvenience the Court;
(5) close assistance of counsel was available to the defendant; (6) the plea was
knowing and voluntary; and (7) withdrawal would waste judicial resources.”
United States v. Brewster, 137 F.3d 853, 857 (5th Cir. 1998)(citation omitted).
16
See United States v. Hyde, 520 U.S. 670, 677, 117 S. Ct. 1630, 1634
(1997): “Were withdrawal automatic in every case where the defendant decided to
alter his tactics and present his theory of the case to the jury, the guilty plea
would become a mere gesture, a temporary and meaningless formality reversible at
the defendant’s whim. In fact, however, a guilty plea is no such trifle, but a
‘grave and solemn act,’ which is ‘accepted only with care and discernment.’”
(citations omitted).
19
III. CONCLUSION
For these reasons, Glinsey’s judgment of conviction is
affirmed, and his restitution award is modified to $1 million.
AFFIRMED AS MODIFIED.
20