United States v. Dungee , 228 F. App'x 298 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4996
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM ADRIAN DUNGEE,
Defendant - Appellant.
No. 05-5080
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MONTA OLANDER JORDAN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-05-17)
Submitted: April 11, 2007 Decided: May 31, 2007
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Frances H.
Pratt, Research and Writing Attorney, Alexandria, Virginia; Steven
P. Hanna, Richmond, Virginia, for Appellants. Chuck Rosenberg,
United States Attorney, Sara E. Flannery, Assistant United States
Attorney, Maciek J. Kepka, Third Year Intern, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
William Adrian Dungee and Monta Olander Jordan both pled
guilty to assault resulting in serious bodily injury in violation
of 18 U.S.C. §§ 113(b)(6), 2 (2000), a charge that resulted from
their participation, with another defendant, in an attack on a
fellow inmate at the Federal Correctional Institution at
Petersburg, Virginia. The official investigation of the incident
determined that Clarence Jefferson, who was an orderly in the
visiting room, had agreed to retrieve a package of marijuana left
in the visitors’ ladies’ room for another inmate, Chatyn Byrd. The
marijuana was found first by prison staff and replaced with a dummy
package. This led Byrd to believe that Jefferson had stolen the
marijuana, which resulted in the attack on Jefferson in the
exercise yard. Prison authorities searched the yard immediately
following the attack and found Jefferson’s tooth and slivers from
the crutch used to beat him, but no other weapons. All the inmates
in the area were segregated and questioned, first by prison
investigators, and soon afterward by an agent from the Federal
Bureau of Investigation (FBI).
Dungee seeks to appeal the restitution order that
requires him to pay $1611.86 to the Bureau of Prisons (BOP) for
medical expenses incurred on behalf of Jefferson pursuant to the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C.A. § 3663A (West
2000 & Supp. 2006), and 18 U.S.C. § 3664 (2000). The government
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has moved to dismiss Dungee’s appeal based on the waiver of appeal
rights in his plea agreement. As explained below, we deny the
motion to dismiss and affirm the restitution order. Jordan appeals
the district court’s denial of his motion to withdraw his guilty
plea and asserts additional claims in his pro se supplemental
brief. We conclude that the district court did not abuse its
discretion in denying Jordan’s motion to withdraw his guilty plea
and that his pro se claims are without merit, and we affirm his
conviction and sentence.
Because the waiver provision in Dungee’s plea agreement
made no explicit reference to restitution, and the record of the
guilty plea colloquy does not reveal any discussion of a waiver of
appellate rights concerning restitution, we will consider Dungee’s
challenge to the restitution order on the merits. Dungee argues
that the district court erred (1) in ordering him to pay anything
more than a nominal amount of restitution, see 18 U.S.C.
§ 3664(f)(3)(B); (2) in awarding restitution to the BOP because it
is not a victim as the term is defined in § 3663A; and (3) in
failing to make findings concerning his financial circumstances
before determining the payment schedule as required under
§ 3664(f)(2).
Dungee did not raise these objections in the district
court. Therefore his claims are reviewed for plain error. See
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Under
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the plain error standard, Dungee must show that: (1) there was
error; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). Even when these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks
omitted).
Dungee first contends that the BOP is not a “victim”
within the meaning of § 3663A. Under the MVRA, the district court
may order a defendant to pay restitution to any victim of an
offense of conviction. See 18 U.S.C.A. § 3663A(a)(1); United
States v. Newsome, 322 F.3d 328, 340 (4th Cir. 2003) (noting that
district court has authority to order restitution for “all
identifiable victims”). An individual is a victim under § 3663A if
he is “a person directly or proximately harmed as a result of the
commission of an offense for which restitution may be ordered
. . . .” § 3663A(a)(2). This includes third parties otherwise
responsible for the costs of assisting a principal victim. United
States v. Johnson, 400 F.3d 187, 200-01 (4th Cir.) (citing United
States v. Cliatt, 338 F.3d 1089, 1091 (9th Cir. 2003)), cert.
denied, 126 S. Ct. 134 (2005). Dungee attempts to distinguish his
case from Johnson on the ground that it involved payment to a
private agency, whereas the BOP was required to provide for
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Jefferson’s medical care. We cannot agree. The medical expenses
incurred by the BOP for Jefferson’s care clearly fall within the
scope of expenses incurred by third parties otherwise held
responsible for the costs of recovery. Johnson, 400 F.3d at 200;
see also 18 U.S.C. § 3664(j)(1) (providing that restitution is
applicable to those entities that “provide[] or [are] obligated to
provide the compensation” to make a victim whole). Therefore, we
conclude that the district court did not plainly err in ordering
Dungee to make restitution to the BOP for Jefferson’s medical care.
Dungee also asserts that the district court failed to
make findings concerning his ability to pay, as required under
§ 3664. The MVRA provides that the restitution amount to each
victim shall be “in the full amount of each victim’s losses as
determined by the court and without consideration of the economic
circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A). The
MVRA further requires that the court, after ordering full
restitution, “specify in the restitution order the manner in which,
and the schedule according to which, the restitution is to be
paid,” taking into account “(A) the financial resources and other
assets of the defendant, including whether any of these assets are
jointly controlled; (B) projected earnings and other income of the
defendant; and (C) any financial obligations of the defendant[,]
including obligations to dependents.” 18 U.S.C. § 3664(f)(2). The
district court therefore was required to consider Dungee’s
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financial condition under the MVRA in fashioning a payment
schedule.
Dungee is correct that the district court erred in
failing to make the required findings linking the schedule of
restitution payments to his financial condition. Nor did the
district court explicitly adopt the presentence report, which
discussed Dungee’s financial condition and inability to pay a fine.
See United States v. Karam, 201 F.3d 320, 330 (4th Cir. 2000)
(adoption of presentence report that contained sufficient facts to
support restitution order avoided plain error). However, we are
not convinced that Dungee has demonstrated that the error affected
his substantial rights. The amount of restitution ordered was
nominal, see § 3664(f)(3)(B), even though the district court did
not specifically identify the $25 monthly payments as a nominal
sum. Moreover, Dungee has not shown that a different amount or
schedule of payments would have resulted if the district court had
articulated findings regarding his financial condition. See United
States v. Bollin, 264 F.3d 391, 420 (4th Cir. 2001). Therefore, we
will uphold the restitution order as not plainly erroneous.
Jordan pled guilty on July 19, 2005, the day before he
was scheduled to go to trial, and also the day the government filed
a superseding indictment which charged him with influencing a
prospective witness to provide false testimony and bribery of a
witness. The district court offered Jordan the option of taking a
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day to think over his change of plea, but Jordan declined the
offer. Jordan indicated that he was ready to enter his plea and to
stipulate that the government could prove that he had obstructed
justice.* In his interview with the probation officer following
his guilty plea, Jordan stated that he took a knife away from
Jefferson during a fight between Jefferson and Dungee and hid the
knife in grass in the recreation yard. He admitted hitting
Jefferson a few times because, he said, he was upset that Jefferson
had involved him in his argument with Dungee.
Three months later, Jordan moved to withdraw his guilty
plea, claiming that his plea had not been knowing and voluntary
because he was hurried and under pressure when he entered it, and
because the district court failed to ask whether he understood that
he was waiving his right to collaterally attack his sentence.
Jordan also asserted his legal innocence, claiming that he had
acted in self-defense after Jefferson pulled a knife on him, and
that his claim was supported by a knife prison officials found
buried in the dirt, several weeks after the assault, in the same
area of the prison yard. He complained that he had not been
provided with copies of the prison interviews of inmates Veney,
Goodman, and Robertson, who allegedly witnessed the assault,
*
The evidence of obstruction consisted of tapes of two
recorded phone calls Jordan made from prison.
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although he did receive summaries of the FBI interviews of the same
inmates conducted shortly after the attack.
At a hearing on the motion, a review of Jordan’s plea
agreement established that Jordan had not waived his right to
collaterally attack his conviction or sentence. The government
also questioned Jordan about the telephone call recorded on
June 16, 2005, in which Jordan told a third party that “Munch”
(Dungee) would be called as a witness and that Dungee should say
that the victim had “a tool,” that is, a knife. The district court
denied Jordan’s motion to withdraw his guilty plea, finding that
Jordan had not met his burden of showing a fair and just reason for
withdrawal under the six-factor test set out in United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). The court found no
credible evidence of Jordan’s legal innocence or that Jordan’s
guilty plea was not knowing and voluntary, that Jordan had been
appropriately advised at the Fed. R. Crim. P. 11 hearing about the
waiver of appellate rights in his plea agreement, and that the
three-month delay between entry of the plea and the motion to
withdraw was significant.
We review the denial of Jordan’s motion to withdraw his
guilty plea for abuse of discretion. United States v. Ubakanma,
215 F.3d 421, 424 (4th Cir. 2000). The defendant bears the burden
of showing a “fair and just reason” for the withdrawal of his
guilty plea. Fed. R. Crim. P. 11(d)(2)(B). “[A] ‘fair and just’
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reason . . . is one that essentially challenges . . . the fairness
of the Rule 11 proceeding . . . .” United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc). Courts consider six
factors in determining whether to permit the withdrawal of a guilty
plea:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or otherwise involuntary;
(2) whether the defendant has credibly asserted his legal
innocence; (3) whether there has been a delay between
entry of the plea and filing of the motion; (4) whether
the defendant has had close assistance of counsel;
(5) whether withdrawal will cause prejudice to the
government; and (6) whether withdrawal will inconvenience
the court and waste judicial resources.
Ubakanma, 215 F.3d at 424 (citing Moore, 931 F.2d at 248) (footnote
omitted). An appropriately conducted Rule 11 proceeding, however,
“raise[s] a strong presumption that the plea is final and binding.”
Lambey, 974 F.2d at 1394. Our review of the record discloses that
the district court did not abuse its discretion in denying Jordan’s
motion.
In his pro se supplemental brief, Jordan asserts that the
government failed to disclose to him in discovery the summaries of
interviews conducted by prison authorities of Goodman, Veney, and
Robertson. Jordan states that they would have been the principal
government witnesses against him had he gone to trial, and that the
interviews conducted by prison authorities would have provided him
with impeachment evidence to support his self-defense claim.
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When Jordan raised this issue at the hearing on his
motion to withdraw his guilty plea, his attorney informed the court
that the government had learned that interviews of Goodman, Veney,
and Robertson by prison authorities did not exist. Jordan has
attached to his pro se brief a letter from the BOP, apparently in
response to his post-sentencing request for interviews of the three
inmates under the Freedom of Information Act, which indicates that
three pages corresponding to his request had been located, but
would be withheld under 5 U.S.C. § 552(b)(6), (b)(7)(c), and
(b)(7)(F) (2000). These sections exempt from disclosure certain
materials to avoid an unwarranted invasion of personal privacy or
the endangerment of an individual’s life or physical safety.
Even if interview forms of some sort exist for the three
inmates, as it appears they do, Jordan has not demonstrated that
they actually contain any exculpatory or impeachment information
that would have been helpful to his defense. This is particularly
true in light of the fact that he was provided with summaries of
the FBI agent’s interviews of the same inmates which were done a
short time after prison authorities conducted their initial
interviews. Therefore, we find no basis for his claim of
prosecutorial misconduct.
Moreover, Jordan’s arguments going to the factual basis
for his conviction are also unavailing because his guilty plea to
the charges constitutes an admission to the material elements of
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the crime. A knowing and voluntary guilty plea “conclusively
establishes the elements of the offense and the material facts
necessary to support the conviction,” and “constitutes a waiver of
all nonjurisdictional defects,” such as claims of actual innocence.
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993); see
also Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Also in his pro se brief, Jordan claims error in the
district court’s decision not to award him an adjustment for
acceptance of responsibility. The sentencing transcript is not
contained in the materials submitted on appeal. However, at the
Rule 11 hearing, Jordan admitted conduct that constituted
obstruction of justice. If, as Jordan alleges, he did not receive
an adjustment for acceptance of responsibility, the court’s
decision did not amount to clear error.
We therefore deny the government’s motion to dismiss
Dungee’s appeal and affirm the judgment in Dungee’s case, including
the restitution order. We affirm the district court’s decision to
deny Jordan’s motion to withdraw his guilty plea, and affirm
Jordan’s conviction and sentence. We grant Jordan’s motion for
leave to file a pro se supplemental brief, but deny his motions for
new counsel and for leave to proceed pro se. 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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