United States v. Rast

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4501

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEVEN Z. RAST,

Defendant - Appellant.

No. 06-4510

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEVEN Z. RAST,

Defendant - Appellant.

Appeals from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:02-cr-00948-GRA; 7:03-cr-00429-GRA)

Submitted: April 4, 2008 Decided: May 5, 2008

Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Melissa W. Gay, GAY & ASSOCIATES, P.C., Mount Pleasant, South
Carolina, for Appellant. Reginald I. Lloyd, United States Attorney,
A. Lance Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Steven Z. Rast appeals his convictions and sentence for

bank robbery, using a firearm in relation to a violent crime, and

arson. On appeal, Rast argues the district court erred by denying

his motion to suppress, by denying his motion to withdraw his

guilty plea, by refusing to order a mental evaluation, and by

overruling his objections to the presentence report. Rast also

moves for this court to grant an extension of time to file a pro se

supplemental brief.

Rast contends statements he made to police were

involuntary, because despite his request for counsel, police failed

to secure counsel; further, Rast alleges a magistrate judge

harassed and threatened him with a lifetime in prison unless he

cooperated. This court reviews the factual findings underlying the

denial of a motion to suppress for clear error and the legal

conclusions de novo. United States v. Johnson, 400 F.3d 187, 193

(4th Cir. 2005). We construe the evidence in the light most

favorable to the government, as the prevailing party below. United

States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

Rast bases his argument on his testimony that police

officers threatened him and interrogated him without reading him

his rights under Miranda v. Arizona, 384 U.S. 436 (1966). His

testimony was contradicted by the investigating officers, and the

district court found Rast’s testimony was not credible. This court

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does not second-guess the district court’s credibility

determination. See United States v. Saunders, 886 F.2d 56, 60 (4th

Cir. 1989). Accepting the district court’s credibility

determination, the district court did not err in denying Rast’s

motion to suppress.

Rast next argues the district court should have ordered

a mental evaluation because he was in fact mentally unstable and

denying the request deprived him of his constitutional right to due

process. A district court should grant a motion to determine the

mental competency of a defendant “if there is reasonable cause to

believe that the defendant may presently be suffering from a mental

disease or defect rendering him mentally incompetent to the extent

that he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.” 18

U.S.C.A. § 4241(a) (West 2000 & Supp. 2007). There was no evidence

in the record indicating Rast did not understand the nature and

consequences of the proceedings and could not assist in his

defense. Indeed, in making the motion for a mental evaluation,

Rast’s attorney stated, “He’s clearly competent.” Therefore, the

district court did not err in denying the motion.

Rast further asserts the district court should have

granted his motion to withdraw the guilty plea because his plea was

not voluntary. Rast claimed the U.S. Attorney misled him about the

consequences of his guilty plea by stating he was facing a minimum

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sentence of thirty-six years and promising him the opportunity to

earn a downward departure under Fed. R. Crim. P. 35. He added that

because he represented himself pro se and did not have access to a

law library he was unable to understand the consequences of waiving

his right to a jury trial.

The district court’s denial of a motion to withdraw a

guilty plea is reviewed for abuse of discretion. United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does not

have an absolute right to withdraw a guilty plea. United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, the defendant

bears the burden of demonstrating that a “fair and just reason”

supports his request to withdraw his plea. Fed. R. Crim. P.

11(d)(2)(B). Factors considered in determining whether a defendant

has shown a fair and just reason for withdrawing a guilty plea

include: (1) whether the defendant offered credible evidence that

the plea was not knowing or voluntary; (2) whether the defendant

credibly asserted his legal innocence; (3) the delay, if any,

between the entry of the plea and the filing of the motion;

(4) whether the defendant had close assistance of competent

counsel; (5) whether withdrawal would cause prejudice to the

Government; and (6) whether withdrawal would inconvenience the

court and waste judicial resources. Moore, 931 F.2d at 248.

Although all the factors in Moore must be given appropriate weight,

the central question is whether the Rule 11 colloquy was properly

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conducted. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.

1995). This court closely scrutinizes the Rule 11 colloquy and

attaches a strong presumption that the plea is final and binding if

the Rule 11 proceeding is adequate. United States v. Lambey, 974

F.2d 1389, 1394 (4th Cir. 1992).

Rast based his motion to withdraw his guilty plea on his

claim that the U.S. Attorney had promised him a lower sentence.

However, at the plea hearings, Rast stated he had not been promised

anything that was not contained in the plea agreement.

Additionally, he agreed that he was in fact guilty of the crimes

charged. During the plea colloquies, the district court properly

informed Rast of the rights he was forfeiting as a result of his

plea, informed him of the nature of the charges, determined the

voluntariness of his guilty pleas, and determined there was a

sufficient factual basis for the pleas. Accordingly, there were no

errors with respect to the Rule 11 colloquies. Moreover, the

remaining Moore factors weighed against allowing Rast to withdraw

his guilty plea. Therefore, the district court did not abuse its

discretion in denying Rast’s motion to withdraw his guilty plea.

Finally, Rast contends the district court erred in

overruling his objection to the portion of the presentence report

that stated he pointed a firearm at bank employees during the

commission of one of the robberies. When reviewing the district

court’s application of the Sentencing Guidelines, this court

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reviews findings of fact for clear error and questions of law de

novo. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).

Pursuant to U.S. Sentencing Guidelines Manual § 2B3.1(b) (2002),

using a firearm during a robbery but not discharging it results in

a six-level enhancement.

In response to Rast’s objection that he did not point his

firearm at anyone during the April 22, 2002 robbery, the government

presented a witness who testified otherwise. The district court

found the government’s witness to be credible and that there was a

sufficient factual basis to apply the enhancement. In light of the

witness’s testimony that Rast pointed his gun at her and a bank

employee, it was not clear error for the district court to apply

the six-level enhancement. Under the remedial portion of United

States v. Booker, 543 U.S. 220 (2005), district courts can make

factual findings in applying sentence enhancements. United

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).

Accordingly, we affirm Rast’s convictions and sentence.

We deny his motion for an extension of time to file a pro se

supplemental brief. 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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