United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 14, 2004
Charles R. Fulbruge III
Clerk
No. 03-21213
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DUDLEY EARL MYERS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-123-ALL
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Before JOLLY, HIGGINBOTHAM and PICKERING, Circuit Judges.
PER CURIAM:*
Dudley Earl Myers appeals following his guilty-plea
conviction for bank fraud in violation of 18 U.S.C. §§ 1344 and
2. Myers argues that the district court erroneously calculated
his criminal history score, improperly applied a sentence
enhancement for more than one victim, and improperly advised him
about his right to appeal. In his plea agreement Myers waived
his right to appeal with the exception of appealing an upward
departure from the Sentencing Guidelines and the calculation of
*
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this opinion should not be published and is not precedent except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. 03-21213
-2-
"intended loss" under the Guidelines. We conclude from the
record that Myers's waiver was knowingly and intelligently made,
and we do not address his waived guidelines arguments. See
United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994); FED.
R. CRIM. P. 11(b)(1)(N).
Myers also argues that his plea was induced by a
representation from the Government that the amount of loss for
relevant conduct would be limited to $58,547.79. Because Myers
did not object on this ground in the district court, review is
for plain error. United States v. Brown, 328 F.3d 787, 790 (5th
Cir. 2003). Myers has not met his burden of showing that the
Government made such a promise or breached the plea agreement.
United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).
Myers's statement at the rearraignment that no promises other
than those in the plea agreement were made to him is presumed to
be truthful. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Myers next argues that the calculation of the intended loss
under relevant conduct was erroneous because he should not have
been responsible for the entire amount of the checks deposited by
others and the actual loss was less than the total amount of the
checks. The face value of stolen and forged checks is properly
used as the intended loss because that is the amount at risk,
even if the bank did not lose the full value. United States v.
Wimbish, 980 F.2d 312, 316 (5th Cir. 1992), abrogated on other
grounds, Stinson v. United States, 508 U.S. 36, 40 (1993).
No. 03-21213
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Although Myers claimed he was not involved in transactions
of checks that did not come from Oregon, the court found that the
evidence was overwhelming that Myers was the leader of the scheme
and as involved in the activities of all the conspirators. The
evidence in the PSR showed that Myers recruited the other
participants in the scheme. Myers presented no evidence to rebut
the PSR’s information, other than his own denial of involvement
with all the fraudulent checks. The district court found Myers’
denial to be incredible. We conclude that the district court did
not clearly err in its determination of the intended loss or
Myers's relevant conduct. United States v. Morrow, 177 F.3d 272,
301-02 (5th Cir. 1999); U.S.S.G. § 1B1.3.
Myers argues in his reply brief that his relevant conduct
should be limited to the amount of the single check at issue in
the count to which he pleaded guilty, that the federal sentencing
guidelines are unconstitutional, that his indictment failed to
charge that he was a leader/organizer, and that due process was
violated because facts used to increase his offense level were
not submitted to a jury and proven beyond a reasonable doubt.
Myers relies on the Supreme Court's recent decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004). Myers is not entitled to
relief under Blakely. See United States v. Pineiro, __ F.3d __
(5th Cir. Jul 12, 2004, No. 03-30437), 2004 WL 1543170 at *1.
Finally, Myers argues that the factual basis for his plea
was insufficient because there was no proof of any actual loss
No. 03-21213
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with respect to the count to which he pleaded guilty nor proof
that the deposits of Bank of America, into which the check was
deposited, were FDIC insured. We conclude that the court's
acceptance of the factual basis was not plain error. See United
States v. Vonn, 535 U.S. 55, 59 (2002); United States v.
McCauley, 253 F.3d 815, 819 (5th Cir. 2001).
AFFIRMED.