United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 27, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-11036
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN SCHMIDT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-40-1-A
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
John Schmidt appeals his guilty-plea conviction and sentence
for one count of tax evasion. Schmidt argues that the district
court abused its discretion in 1) denying his motion to continue
his sentencing hearing, 2) denying his motion to withdraw his
guilty plea, and 3) departing upward at sentencing.
Specifically, Schmidt argues that the denial of his motion to
*
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that this opinion should not be published and is not precedent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.
No. 02-11036
-2-
continue deprived him of the opportunity to earn a reduced
sentence based on his assistance in a West Virginia healthcare
fraud case. Schmidt further contends that his motion to withdraw
his guilty plea should have been granted based on, among other
things, his alleged innocence of the insurance fraud allegations
contained in Schmidt’s Presentence Report. Schmidt extends the
same innocence argument as a basis for disputing the district
court’s upward departure. In addition, Schmidt challenges the
quality and quantity of the Government’s fraud evidence and
contends that the insurance fraud conduct was accounted for in
the sentencing guidelines calculations for the offense of
conviction. Schmidt further challenges certain enhancements
included in the district court’s upward departure calculations.
We have reviewed the record and the briefs submitted by the
parties and hold that the district court did not abuse its
discretion with respect to any of Schmidt’s assignments of error.
See United States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989);
United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997); United
States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984); United
States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994); United
States v. Millsaps, 157 F.3d 989, 997 (5th Cir. 1998).
AFFIRMED.