United States v. Glinsey ( 2000 )


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  •                           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