United States v. Johnson ( 1998 )

UNPUBLISHED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.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.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 Appel-
lant. Thomas Gerard Connolly, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
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 Govern-
ment issued a writ to bring him into federal custody for arraignment.
The Government then filed a motion to remand Johnson into tempo-
rary 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 transporta-
tion 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-
_________________________________________________________________
*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 prison-
er'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 proceed-
ing, 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 John-
son'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 with-
drawal 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 demon-
strating 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 indict-
ment 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 commit-
ted all the acts charged in the indictment, and Johnson did not object
to the findings.
District courts may take "relevant conduct" into account in deter-
mining 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 pat-
tern.'" 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 John-
son applying for an automobile loan using a false social security num-
ber, date of birth, and the same false earning statement as in count
one. Count five involved a similar scheme with similar misrepresenta-
tions, 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 quali-
fied 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 accep-
tance 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 coun-
sel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel'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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