UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41047
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
PAUL N. FIELDING
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
(4:97-CR-32)
October 2, 1998
Before REAVLEY, DAVIS, and DUHÉ, Circuit Judges.
Per Curiam:1
BACKGROUND
Appellant, Paul Fielding (“Fielding”), was a member of the
Dallas City Council when he was indicted for, among other things,
mail fraud and extortion. Six days after Fielding’s jury trial
began, he pled guilty to a two-count information which charged that
Fielding used the mails to defraud the shareholders of Mason Rich,
a Dallas based factoring company of which he was vice-president.
According to the information, the mail fraud involved a scheme to
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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this opinion should not be published and is not precedent except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.
defraud investors by mailing a fraudulent private placement
memorandum, soliciting investment in Mason Rich. The information
also charged that he conspired to extort Handy Andy Janitorial
Service (“Handy Andy”) into purchasing cleaning supplies from a
company controlled by Fielding.
In the plea agreement, Fielding acknowledged his understanding
that he would be sentenced under the United States Sentencing
Commission’s Guidelines (“Guidelines”) and waived his right to
appeal, except for the application of the Guidelines. Fielding
stated that he was satisfied with the services of his attorneys
both in the plea agreement and in the Rule 11 hearing. Fielding
also executed a factual resume which described and admitted his
conduct, including the elements of the offenses charged in the
information.
At his plea hearing, Fielding testified that he discussed the
Guidelines with counsel, understood his right to continue with his
trial, and was satisfied with his legal representation. He also
testified that his plea was knowing and voluntary and that all
facts set forth in the factual resume were true.
Subsequently, Fielding moved to withdraw his guilty plea,
contending that he was coerced into pleading guilty because his
trial attorneys advised him that he would receive 25 to 40 years in
prison if convicted. Following an evidentiary hearing, the
district court denied Fielding’s motion. The court relied on
affidavits from Fielding’s trial counsel denying that they told
Fielding he would spend 25 to 40 years in prison.
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At the sentencing hearing, Fielding objected to the inclusion
of his fraud against Miller Brewing Company (“Miller”) and his
extortion of Electronic Data Systems (“EDS”) as relevant conduct.
Rejecting Fielding’s challenge, the district court found that
Fielding defrauded Miller and extorted EDS. The court sentenced
Fielding to 41 months in prison, 3 years supervised release, and
$890,942.46 in restitution.
Fielding appeals, maintaining: (1) the court erred in refusing
to allow him to withdraw his guilty plea; (2) his plea was not
knowing and voluntary; (3) his counsel was ineffective; (4) the
information to which he pled failed to state a Hobbs Act violation
and there was no factual basis for the plea; and (5) the district
court erred in calculating his sentence under the Guidelines. We
affirm.
DISCUSSION
Fielding contends that the district court erred by refusing to
allow Fielding to withdraw his guilty plea. See Fed. R. Crim. P.
32(e). We review the denial of a defendant’s motion to withdraw a
guilty plea for abuse of discretion. See U.S. v. Grant, 117 F.3d
788, 789 (5th Cir. 1997)(citing United States v. Henderson, 72 F.3d
463, 465 (5th Cir. 1995).
A trial court should consider seven factors in determining
whether to allow a defendant to withdraw his guilty plea: (1) does
the defendant assert his innocence; (2) prejudice to the government
if the withdrawal motion were granted; (3) whether the defendant
has delayed in filing his withdrawal motion; (4) whether the
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withdrawal would substantially inconvenience the court; (5) whether
the close assistance of counsel was available; (6) whether the plea
was knowing and voluntary; and (7) whether the withdrawal would
waste judicial resources. See United States v. Carr, 740 F.2d 339,
343-44 (5th Cir. 1984). Applying these factors, the district court
denied Fielding’s motion. We conclude that the district court did
not abuse its discretion.
Fielding maintains that he received ineffective assistance of
counsel and that his plea was not knowing and voluntary. According
to Fielding, he decided to plead guilty because he was wrongly
advised that he would have to serve 25 to 40 years in prison if
convicted at trial. We review a district court’s findings of fact
for clear error. See United States v. Stevenson, 126 F.3d 662, 664
(5th Cir. 1997). The court found that Fielding’s attorneys did not
tell him that he was facing 25 to 40 years in prison. The court
noted that Fielding was a sophisticated businessman who told the
court that he was satisfied with the services of his counsel. The
court also found that Fielding knowingly acknowledged his guilt to
the court and to the probation officer. We conclude from our
review of the record that these findings are not clearly erroneous.
Fielding contends that the information fails to state a Hobbs
Act violation. We reject Fielding’s claim that the information
fails to state a Hobbs Act violation because the information tracks
the language of 19 U.S.C. 1951. See U.S. v. Arlen, 947 F.2d 139,
145 (5th Cir. 1991)(stating that “[a]n indictment that tracks a
statute’s words is generally sufficient”). Fielding also contends
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that there is no factual basis for his plea to the Hobbs Act
violation. We need not address this claim because Fielding’s plea
agreement waived his right to appeal. See U.S. v. Melancon, 972
F.2d 566, 568 (5th Cir 1992).
Finally, Fielding challenges his sentence. He maintains: (1)
the district court improperly included Miller Brewing as a victim
even though Miller and Mason Rich had already settled and (2) the
eight-level enhancement under U.S.S.G. § 2C1.1(b)(2)(B) was
improper because any extortion was unrelated to his capacity as a
public official and was not for the purpose of performing an
official act. We review the district court’s interpretation of the
Guidelines de novo and its findings of fact for clear error. See
U.S. v. Claiborne, 132 F.3d 253, 254 (5th Cir. 1995). We give due
deference to the district court’s application of the Guidelines to
the facts. See U.S. v. West, 58 F.3d 133, 137 (5th Cir. 1995).
Fielding’s challenges to his sentence are meritless. A civil
settlement does not bar restitution. See United States v. Savoie,
985 F.2d 612, 619 (1st Cir. 1993). The district found that
Fielding’s fraud on Miller was relevant conduct because it was
“closely intertwined” with his efforts to keep Barre & Company from
discovering misrepresentations of Mason Rich’s financial condition.
See U.S.S.G. § 1B1.3(a). The record adequately supports this
finding.
Fielding’s challenge to his eight-level enhancement under §
2C1.1(b)(2)(B) also fails. The district court’s finding that
Fielding used his official position to extort from EDS was not
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clearly erroneous. In his factual resume, Fielding admits that he
used his city council position to induce EDS to grant a contract to
Handy Andy, Mason Rich’s client.
AFFIRMED
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