Case: 19-30407 Document: 00515527476 Page: 1 Date Filed: 08/14/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 14, 2020
No. 19-30407
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alvin Watts, III,
Defendant—Appellant.
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:16-CR-104-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Alvin Watts, III, was convicted by a jury of conspiracy to possess,
transport, and traffic in embezzled pre-retail medical products and stolen
property, in violation of 18 U.S.C. §§ 371 & 2; trafficking in stolen and
embezzled pre-retail medical products, in violation of 18 U.S.C. § 670(a)(3),
*
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not be published and is not precedent except under the limited circumstances set forth in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.
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No. 19-30407
(b)(1), (c)(2); transportation of stolen property, in violation of 18 U.S.C.
§ 2314; and receipt, possession, concealment, storage, and sale of stolen
property, in violation of 18 U.S.C. § 2315, and sentenced within the advisory
guidelines range to 108 months of imprisonment and a three-year term of
supervised release. On appeal, Watts contends that: (1) the Government’s
failure to correct allegedly false trial testimony regarding Broderick Landry’s
and Francis Asiedu Debrah’s plea agreements constituted a violation of
Napue v. Illinois, 360 U.S. 264 (1959); and (2) the district court erred by
denying three objections to the presentence report (PSR) regarding the
application of a 14-level increase for the amount of loss under U.S.S.G.
§ 2B1.1(b)(1)(H), a two-level increase for receipt of stolen property under §
2B1.1(b)(4), and a two-level increase for obstruction of justice under
U.S.S.G. § 3C1.1. Proceeding pro se, Watts also moves for reconsideration
of a prior order denying his motion to proceed pro se.
The Due Process Clause forbids the Government from knowingly
using or failing to correct false testimony. See Napue, 360 U.S. at 269. To
demonstrate a due process violation based on the Government’s failure to
correct false testimony under Napue, Watts must demonstrate that: (1) the
testimony was false, (2) the Government knew that the testimony was false,
and (3) the testimony was material. United States v. Stanford, 823 F.3d 814,
838-39 (5th Cir. 2016).
Landry and Debrah were both asked what their understanding of the
plea agreement was regarding promises made to them by the United States,
and they both correctly responded that the Government agreed to drop some
charges in return for their truthful testimony. While neither stated that the
Government also promised that their testimony and statements would not be
used against them if they cooperated and that the Government would inform
the court of the extent and value of their cooperation at sentencing, their full
plea agreements were introduced into evidence by the Government,
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including all of the Government’s agreements, and both witnesses agreed
that these were their plea agreements. There is nothing to indicate that
Landry’s and Debrah’s omissions were done “with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). Moreover,
“the Government can discharge its responsibility under Napue . . . to correct
false evidence by providing defense counsel with the correct information at a
time when recall of the prevaricating witnesses and further exploration of
their testimony is still possible.” Beltran v. Cockrell, 294 F.3d 730, 736 (5th
Cir. 2002). The Government corrected any errors by providing the full plea
agreements, which included the full recitation of the promises made by the
Government, to the defense before trial.
Watts’s argument that the district court erred by overruling three of
his objections to the PSR is likewise without merit. With respect to his first
objection, we “must defer to a factual finding as to the amount of loss, but
must consider de novo how the court calculated the loss, because that is an
application of the guidelines, which is a question of law.” United States v.
Lige, 635 F.3d 668, 671 (5th Cir. 2011) (internal quotation marks and citation
omitted). There was no inconsistency between the district court’s ruling as
to restitution and its ruling as to calculation of loss under § 2B1.1(b)(1)(H),
and Watts fails to demonstrate any error as to the value or quantity of the
drugs.
As for his second objection, “[t]he district court’s determination that
[Watts] was in the business of receiving and selling stolen property is a factual
finding we review for clear error.” United States v. Simpson, 796 F.3d 548,
554 (5th Cir. 2015). The district court, after consideration of the four non-
exclusive factors set out in the commentary to the Guidelines, concluded that
the enhancement should be applied. Watts fails to meaningfully dispute any
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of the relevant facts, and the district court’s conclusion was not clear error.
See id.
Watts’s third objection is likewise without merit. A district court’s
“factual findings, such as a finding of obstruction of justice, are reviewed for
clear error.” United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.
2008). Troy Taylor testified at trial that before the first trial setting in the
case, Watts came to his home at night. Watts had found out that Taylor
planned to testify against him and told Taylor “[t]ell me this ain’t true.”
Watts promised Taylor that he would take care of Taylor’s family and
finances if Taylor went to prison, which Taylor interpreted to mean that
Watts would do so if Taylor opted not to testify and instead go to prison. The
Guidelines and commentary “specifically allow for application of the
enhancement to attempts by defendants to directly or indirectly threaten,
intimidate, or influence a potential Government witness.” United States v.
Searcy, 316 F.3d 550, 553 (5th Cir. 2002). While Watts argues that this was
nothing more than a candid conversation between lifelong friends, it is not
implausible that, as the district court found, that Watts’s comments to
Taylor were an attempt to deter him from testifying at trial. Further, Landry
and Taylor testified that Watts told them to lie to the police if they were
pulled over while transporting the medication back to Louisiana, gave them
a false alibi to use if they were stopped by the police, and gave Taylor a letter
to give to his attorney which repeated this lie. This can form the basis for an
obstruction of justice enhancement, see United States v. Milton, 147 F.3d 414,
417-18 (5th Cir. 1998), and Watts does not address this basis for the
obstruction of justice enhancement.
Finally, we deny Watts’s motion for reconsideration. A judge of this
court previously denied Watts’s motions to proceed pro se and defense
counsel’s motion to withdraw as untimely because they were filed after
defense counsel’s appellate brief. A defendant may not delay asserting his
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right to proceed pro se on appeal until it interferes with the efficient
administration of justice. United States v. Wagner, 158 F.3d 901, 902-03 (5th
Cir. 1998). We have repeatedly, albeit in unpublished opinions, applied
Wagner outside the context of motions to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), to deny motions to proceed pro se as
untimely filed where they were filed after the merits brief. See, e.g., United
States v. Schenck, 697 F. App’x 422, 424 (5th Cir. 2017) (applying Wagner to
deny motion for appointment of substitute counsel as untimely because it was
made after counsel filed a merits brief); United States v. Davis, 584 F. App’x
274, 274 (5th Cir. 2014) (same); United States v. Sierra, 186 F. App’x 461,
462 (5th Cir. 2006) (same). Although these opinions are not precedential,
see 5TH CIR. R. 47.5.4, they are persuasive, see Ballard v. Burton, 444 F.3d
391, 401 n.7 (5th Cir. 2006).
Watts’s request was untimely because his motion to represent himself
was not made until after his counsel filed an appellate brief. See Wagner, 158
F.3d at 902-903. He does not cite any case in which counsel’s subsequent
failure or refusal to file a reply brief altered this conclusion.
AFFIRMED; MOTION DENIED.
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United States v. Alvin Watts, III
Combined Opinion