United States v. Anson Chi , 708 F. App'x 184 ( 2017 )

Case: 15-40861 Document: 00514286440 Page: 1 Date Filed: 12/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40861
Fifth Circuit
FILED
Summary Calendar December 27, 2017
Lyle W. Cayce
consolidated with 15-40610, 15-40656, 15-40705 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANSON CHI,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-155-1
Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
Anson Chi appeals his guilty-plea conviction and 240-month above
guidelines-range sentence for possession of an unregistered firearm and
malicious use of explosive materials. Chi’s motion to file a reply brief out of
time is GRANTED. His remaining motions for sanctions against the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-40861
Government, to strike the Government’s brief, and to ship legal property are
DENIED.
Proceeding pro se as he did during some of the district court proceedings,
Chi argues that he was forced to sign two involuntary plea agreements and
that the district court abused its discretion by denying his motion to withdraw
guilty plea because of the Government’s egregious misconduct in obtaining his
tortured confession, the district court’s suppression of evidence of the
Government’s misconduct, the denial of a medical examination that would
have proved the Government’s misconduct, and standby counsel’s
ineffectiveness. The record is not sufficiently developed to consider an
ineffective assistance of counsel claim, to the extent Chi seeks to raise such a
claim. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
“A defendant does not have an absolute right to withdraw [his] guilty
plea,” United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003), and has the
burden of establishing that “a fair and just reason” required the district court
to grant his motion to withdraw his guilty plea, United States v. Harrison, 777
F.3d 227, 234 (5th Cir. 2015) (internal quotation marks and citation omitted);
see FED. R. CRIM. P. 11(d)(2)(B). A district court’s denial of a motion to
withdraw a guilty plea is afforded “broad discretion.” United States v. Carr,
740 F.2d 339, 344 (5th Cir. 1984) (internal quotation marks and citation
omitted).
We look at the totality of circumstances, including whether (1) Chi
asserted his innocence, (2) withdrawal would prejudice the Government,
(3) Chi delayed in filing his withdrawal motion, (4) withdrawal would
substantially inconvenience the court, (5) close assistance of counsel was
available, (6) the original plea was knowing and voluntary, and (7) withdrawal
would waste judicial resources. See Carr, 740 F.2d at 343-44. The district
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court found that all seven Carr factors counted against Chi and that Chi’s
guilty plea was knowing and voluntary.
We do not reach the close question whether Chi had close assistance of
counsel, as the totality of the circumstances show that the district court did
not abuse its broad discretion in finding that the remaining Carr factors
weighed against Chi. See United States v. Harrison, 777 F.3d 227, 234 (5th
Cir. 2015); United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). Chi’s
plea was knowing, as he was advised of the consequences of his plea with
respect to sentencing. See United States v. Rivera, 898 F.2d 442, 447 (5th Cir.
1990). In light of Chi’s statements at rearraignment, his plea was also
voluntary. See Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v.
Clark, 931 F.2d 292, 295 (1991). Further, Chi did not assert his innocence; he
delayed seven months in filing his motion to withdraw guilty plea; and, he
pleaded guilty only after the jury was chosen, such that granting his motion to
withdraw the plea would have prejudiced the Government and wasted judicial
resources. See Carr, 740 F.2d at 343-46.
Chi argues that the district court plainly erred when it used statements
from his “involuntary/tortured confession” to enhance his sentence under
U.S.S.G. § 3A1.4(a) and to upwardly vary from the Guidelines. Section 3A1.4
applies if “the offense is a felony that involved, or was intended to promote, a
federal crime of terrorism.” § 3A1.4(a); see United States v. El-Mezain, 664
F.3d 467, 570 (5th Cir. 2011). As relevant here, a “federal crime of terrorism”
is an offense that is (1) “calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate against government
conduct” and (2) is a violation of certain enumerated offenses, including 18
U.S.C. § 844(i). 18 U.S.C. § 2332b(g)(5).
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As Chi pleaded guilty to violating an enumerated crime, § 844(i), we
understand his argument to be that the district court could not rely on the
statements he made to Federal Bureau of Investigation’s (FBI) agents to find
his offense was “calculated to influence or affect the conduct of government.”
§ 2332b(g)(5). Chi provides no legal authority for his assertion. Moreover, the
district court is not limited as to the information it may consider in
determining a defendant’s sentence. 18 U.S.C. § 3661; U.S.S.G. § 1B1.4. And,
it is required to consider, among other things, “the nature and circumstances
of the offense.” 18 U.S.C. § 3553(a)(1).
Even setting aside Chi’s statements to the FBI, other record evidence,
including Chi’s YouTube video; his website postings; and his letters to
Theodore “Ted” Kaczynski, the Unabomber; show that Chi’s offense involved
conduct that was calculated to influence or affect government conduct by
coercion or retaliation. See § 2332b(g)(5). The same evidence supports the
district court’s upward variance, as it goes to the nature and circumstances of
Chi’s offense. See 18 U.S.C. § 3553(a)(1); United States v. Smith, 440 F.3d 704,
708 (5th Cir.2006). Chi merely disagrees with the district court’s balancing of
the § 3553(a) factors and has not provided authority showing that the district
court improperly balanced those factors. See United States v. Segura, 747 F.3d
323, 327 (5th Cir. 2014).
Finally, Chi’s assertion that the district court failed to rule on his three
petitions for a writ of mandamus ordering an independent medical
examination is not supported by the record.
AFFIRMED.
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