IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 08-60158 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
PAMELIA J CONROY
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before KING, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Pamelia Conroy pleaded guilty to several fraud charges arising from
statements she made to the Federal Emergency Management Agency, the
Mississippi Development Authority, and the Small Business Administration in
her applications seeking assistance in the wake of Hurricane Katrina. Prior to
sentencing, she discovered what she argued was undisclosed Brady evidence.
Conroy sought to withdraw her plea, but the district court denied this motion
and sentenced her to twenty-one months imprisonment, three years of
supervised release, and restitution of the funds she had received.
Conroy argues that the district court erred by: (1) failing to grant the
motion to withdraw her guilty plea; (2) miscalculating the intended amount of
loss for sentencing purposes; and (3) granting an upward departure for a
significant disruption of a governmental function. For the reasons stated below,
we affirm her conviction, vacate her sentence, and remand to the district court
for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pamelia Conroy owned a home in Mississippi that was rendered
inhabitable due to a fire in August 2004. In December 2004, Conroy began
residing in Florida with a friend, Sandra Pierce. Conroy was still living with
Pierce in Florida when Hurricane Katrina hit the Gulf Coast in August 2005.
On September 12, 2005, Conroy placed a telephone call to the Federal
Emergency Management Agency (“FEMA”) seeking disaster relief benefits for
her Mississippi property despite having not resided there for nearly a year. She
later filed a written application falsely stating that she was living at the
Mississippi address at the time of Hurricane Katrina and that it was her
primary residence. She received $22,814 in assistance from FEMA. Conroy then
sought further assistance from the Small Business Administration (“SBA”) and
the Mississippi Development Authority (“MDA”). Her applications to those
agencies contained the same misstatement that she was living in Mississippi
during the hurricane. The SBA denied her request for a loan, but the MDA
approved her for a $100,000 grant even though her application included
estimated damages of only $70,000.
On May 27, 2007, Conroy was indicted by a grand jury on five counts
resulting from her statements to FEMA, MDA, and SBA. These included three
counts for violation of 18 U.S.C. § 1001 for making false material statements to
FEMA, MDA, and SBA; one count for making a false claim to FEMA in violation
of 18 U.S.C. § 287; and one count for conversion of disaster relief funds in
violation of 18 U.S.C. § 641.
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In August 2007, an FBI agent interviewed Pierce. The FBI report from
this interview states:
Conroy was in Pierce’s house during her telephone call to FEMA.
Pierce overheard Conroy’s half of the conversation. Pierce wanted
to clarify that she did not hear the FEMA representative’s half of
the telephone conversation. All the information that Conroy gave
the FEMA representative on the telephone was accurate. Conroy
told the FEMA representative that her house had been damaged by
a fire before Katrina hit. She also told her that she had let her
insurance lapse and did not have insurance on her home when
Katrina hit. After the conversation, Conroy was of the
understanding that she did qualify for FEMA funding.
On September 19, 2007, six days before trial was scheduled to begin, the
Assistant United States Attorney (“AUSA”) submitted an unusual in camera
letter to the trial judge informing him of certain information, including the FBI
report summarizing Pierce’s statement, that had not been produced to Conroy.
The letter states that “[t]he Government is furnishing these reports to the Court
for in camera review in connection with any matter which the Court regards as
subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny, based on the testimony and evidence at trial.”
Two days later, without knowledge of the AUSA’s letter to the judge or its
contents, Conroy pleaded guilty to all counts without a plea agreement. Conroy’s
counsel later learned of the AUSA’s letter and Pierce’s statement to the FBI.
Based on this new information, Conroy filed a motion to withdraw her guilty
plea. The district court denied this motion and sentenced Conroy on February
14, 2008. Conroy testified at this hearing that she intended to accept any
amount that MDA would grant her. Relying on this testimony, the district court
calculated the intended loss resulting from her fraudulent application to MDA
at $100,000, the amount she was approved to receive, not the $70,000 in
damages she estimated in her application.
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The district court also granted a two-level upward departure pursuant to
§ 5K2.7 of the Guidelines for causing a significant disruption of a governmental
function. The district court concluded that Conroy’s “individual disruption of a
governmental function—that is, the function of FEMA and the function of the
Mississippi Development Authority—was not significant.” However, the district
court interpreted United States v. Bankston, 182 F.3d 296 (5th Cir. 1999), rev’d
on other grounds, Cleveland v. United States, 531 U.S. 12 (2000), as holding that
§ 5K2.7 applies to any disruption of an important governmental function, rather
than requiring the extent of disruption to be significant. Since Conroy’s actions
had interfered with the undoubtedly important governmental function of
providing aid to hurricane victims, the district court also concluded that it was
bound by Bankston to apply § 5K2.7. The district court sentenced Conroy to
twenty-one months imprisonment, three years of supervised release, and
restitution of the amount she had received from FEMA.
II. DISCUSSION
A. Motion to withdraw the guilty plea
A defendant does not have an absolute right to withdraw a plea. United
States v. Lampazianie, 251 F.3d 519, 523–24 (5th Cir. 2001). The district court
has the discretion to grant a motion to withdraw a plea for “any fair and just
reason” pursuant to Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure.
We review a district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. Lampazianie, 251 F.3d at 523.
This court uses a seven-factor test to review the denial of a motion to
withdraw a guilty plea:
(1) whether or not the defendant has asserted his innocence; (2)
whether or not the government would suffer prejudice if the
withdrawal motion were granted; (3) whether or not the defendant
has delayed in filing his withdrawal motion; (4) whether or not the
withdrawal would substantially inconvenience the court; (5)
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whether or not close assistance of counsel was available; (6) whether
or not the original plea was knowing and voluntary; and (7) whether
or not the withdrawal would waste judicial resources; and, as
applicable, the reason why defenses advanced later were not
proffered at the time of the original pleading, or the reasons why a
defendant delayed in making his withdrawal motion.
United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984) (internal footnotes
omitted). We consider the totality of the circumstances, id. at 344, and “no
single factor or combination of factors mandates a particular result,” United
States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).
Conroy’s primary argument relates to the sixth factor. She claims that the
government withheld allegedly exculpatory evidence in violation of Brady by
failing to turn over the FBI report containing Pierce’s statements, which
rendered her guilty plea unknowing and involuntary. We do not need to reach
the merits of her argument because it is foreclosed by our precedent holding that
a guilty plea precludes the defendant from asserting a Brady violation. See
Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000); Orman v. Cain, 228 F.3d 616
(5th Cir. 2000).
The defendant in Matthew, who pleaded nolo contendere, argued that the
prosecution’s alleged Brady violation “rendered him incapable of making a
voluntary decision on how to plead.” 201 F.3d at 356 (alteration omitted). The
court acknowledged that the majority of circuits to consider the issue had
concluded that “a defendant pleading guilty may challenge his conviction on the
ground that the State failed to disclose material exculpatory evidence prior to
entry of the plea.” Id. at 358. The court stated its view that “[t]he prosecutor’s
duty to disclose material exculpatory information is based in the Due Process
Clause of the Fourteenth Amendment, and exists to ensure that the accused
receives a fair trial.” Id. at 360. We also noted that the extension of Brady to
cover impeachment evidence was likewise “based on the potential effect of
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undisclosed information on a jury’s determination of guilt.” Id. (emphasis in
original). Thus, the court concluded that “[b]ecause a Brady violation is defined
in terms of the potential effects of undisclosed information on a judge’s or jury’s
assessment of guilt, it follows that the failure of a prosecutor to disclose
exculpatory information to an individual waiving his right to trial is not a
constitutional violation.” Id. at 361–62. Based on this interpretation, the court
found that the relief sought by the defendant would require adoption of a new
rule under a Teague analysis. Id. at 364.
In Orman, this court reiterated its position that a guilty plea waives the
right to claim a Brady violation. 228 F.3d at 617, 620–21; cf. United States v.
Santa Cruz, 297 F. App’x 300, 301 (5th Cir. 2008) (applying Matthew and Orman
to conclude that the defendant’s guilty plea foreclosed his argument that his
plea was involuntary due to an alleged Brady violation); United States v.
Alvarez-Ocanegra, 180 F. App’x 535, 535 (5th Cir. 2006) (holding that the
defendant’s Brady claim was waived by a guilty plea but citing Lampazianie
instead of Matthew). We noted that “[b]ecause the Supreme Court has yet to
extend Brady to guilty pleas (let alone extend it retroactively), the district court
erred in requiring the Louisiana courts to do so.” Orman, 228 F.3d at 617.
Conroy argues that the Supreme Court did just that in United States v. Ruiz,
536 U.S. 622 (2002), and, therefore, we should revisit our holdings in Matthew
and Orman. We disagree.
The issue in Ruiz was whether prosecutors are required to disclose
impeachment information before the defendant enters a plea agreement. Id. at
625. The Supreme Court held that the withholding of material impeachment
information does not render a guilty plea involuntary. Id. at 629. Conroy argues
that the limitation of the Court’s discussion to impeachment evidence implies
that exculpatory evidence is different and must be turned over before entry of
a plea. Ruiz never makes such a distinction nor can this proposition be implied
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from its discussion. Accordingly, we conclude that Conroy’s guilty plea precludes
her from claiming that the government’s failure to disclose the FBI report was
a Brady violation.
Having concluded that her guilty plea was knowing and voluntary, we
consider the remaining Carr factors. As the district court pointed out, Conroy’s
assertion of innocence was half-hearted at best because she admitted at the
hearing on the motion to withdraw her guilty plea that she may still enter a
guilty plea after reviewing the new evidence. In other words, her intent was not
unequivocally to assert her innocence. This factor favors the government, as do
the remaining factors—she delayed six weeks in filing the motion to withdraw
her plea, she was capably represented by counsel, and going to trial would have
wasted judicial resources and inconvenienced the court—save one exception: the
government concedes that it would not have been prejudiced had the motion to
withdraw been granted. Under these circumstances, it was not an abuse of
discretion for the district court to deny Conroy’s motion to withdraw her guilty
plea.
B. Calculation of intended loss
Conroy next argues that the district court erred in calculating the intended
amount of loss related to her MDA grant application under § 2B1.1(b)(1) of the
Guidelines. In her MDA application, Conroy estimated her damages at $70,000
but MDA approved her for a $100,000 grant. She claims that the sole evidence
of her intent was her application, which could only support a finding of $70,000.
We disagree.
We review findings of fact—such as the intended amount of loss—made in
connection with sentencing for clear error. United States v. Hernandez, 457 F.3d
416, 423 (5th Cir. 2006); see also United States v. Morrow, 177 F.3d 272, 301 (5th
Cir. 1999). We grant the district court “wide latitude” in calculating the amount
of loss and expect the district court’s estimation to be reasonable. United States
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v. Jones, 475 F.3d 701, 705 (5th Cir. 2007) (“The finding must be plausible in
light of the record as a whole.”). When determining an intended loss, the district
court must rely on actual, not constructive, intent. Morrow, 177 F.3d at 301; see
also United States v. Sanders, 343 F.3d 511, 527 (5th Cir. 2003) (“[O]ur case law
requires the government prove by a preponderance of the evidence that the
defendant had the subjective intent to cause the loss that is used to calculate his
offense level.”). The Guidelines define intended loss as “the pecuniary harm that
was intended to result from the offense” which “includes intended pecuniary
harm that would have been impossible or unlikely to occur.” U.S.S.G. § 2B1.1,
cmt. 3(A)(ii).
At the sentencing hearing, Conroy testified that she understood that the
$70,000 amount on her application was just an estimate; in fact, she described
the number as her “guesstimation.” She further stated that she did not know
what amount she would ultimately receive because the final damages calculation
was done by MDA based on its independent assessment. She went on to state
that she believed that funding from the program “started at $150,000” and she
admitted that she intended to accept any amount for which she was approved.
This testimony was the basis of the district court’s conclusion that Conroy’s
“intent was to receive from the [MDA] as much as she could get and as much as
they would give.”
Conroy argues that under the logic used by the district court, there was no
limit to the amount that she could have hypothetically intended to receive. This
argument is contradicted by the fact that Conroy knew the highest amount she
could receive was limited to the amount of her actual damages as determined by
MDA. Her estimation of $70,000 does not change her stated intent to retain the
maximum amount for which MDA would approve her. Based on Conroy’s
testimony, the district court did not clearly err in finding that the intended
amount of loss was $100,000, rather than $70,000.
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C. Upward departure under § 5K2.7 of the Guidelines
Finally, Conroy challenges the district court’s two-level upward departure
for significant disruption of a governmental function under § 5K2.7 of the
Guidelines. The district court applied the § 5K2.7 upward departure after
concluding that our opinion in Bankston directed it to examine only the
importance of the governmental function when determining whether a departure
is appropriate.
We review the decision to make an upward departure for abuse of
discretion. See United States v. Rodriguez, 553 F.3d 380, 396 (5th Cir. 2008).
However, we review the district court’s interpretation of the Sentencing
Guidelines de novo. Hernandez, 457 F.3d at 423.
The policy statement at § 5K2.7 provides, in relevant part:
If the defendant’s conduct resulted in a significant disruption of a
governmental function, the court may increase the sentence above
the authorized guideline range to reflect the nature and extent of
the disruption and the importance of the governmental function
affected.
U.S.S.G. § 5K2.7. This policy statement is composed of two clauses. The first
clause provides the threshold for when an upward departure is appropriate: “[i]f
the defendant’s conduct resulted in a significant disruption of a governmental
function.” Id.1 The second clause lists appropriate factors that the court should
consider when determining the size of the departure: “the court may increase
the sentence above the authorized guideline range to reflect the nature and
1
The district court concluded that the disruption caused by Conroy’s conduct, standing
alone, was “not significant,” but then concluded that the collective impact of all post-Katrina
fraudulent assistance applications was significant. Section 5K2.7 concerns only “the
defendant’s conduct,” and, it is axiomatic that Conroy cannot be sentenced based on the
collective impact of fraudulent applications not attributable to her. On remand, the district
court should consider only “the defendant’s conduct” when deciding whether to apply the
§ 5K2.7 departure.
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extent of the disruption and the importance of the governmental function
affected.” Id.
In Bankston, the defendant failed to disclose the ownership interests of
other individuals in a video poker company when she submitted a false
application to a state regulatory agency. 182 F.3d at 316. At sentencing, the
defendant claimed that her single false application was “not the type of a
‘significant’ disruption that the Commission contemplated when drafting Section
5K2.7 and that, although the submission to a state agency of one false
application may disrupt the agency’s function, it only does so in an ‘ordinary’
sense.” Id. The court concluded that “[t]he appropriateness of a departure turns
on the importance of the government function impacted, not the degree of
impact.” Id. The governmental function in that case was “Louisiana’s video
poker regulatory and licensing scheme,” and the court affirmed the departure
“[b]ased upon the importance of that regulatory scheme” because the defendant
“effectively shielded” the other owners from regulatory scrutiny. Id.
It is unclear whether the defendant in Bankston was challenging the
appropriateness of an upward departure or whether she was challenging the
appropriateness of the size of that departure; the court’s description of her
argument as asserting that her crime was “ordinary” and not a “significant”
disruption suggests the former. The Bankston court’s reference to the
“importance of the government function” and the “degree of impact,” however,
clearly corresponds to the factors governing the size of the departure
promulgated in the second clause of the first sentence of § 5K2.7—“the nature
and extent of the disruption and the importance of the governmental function
affected.” Finally, while predicated on the importance of the governmental
function, the court’s application in Bankston, nonetheless, supports the
conclusion that the defendant both caused a significant disruption and impacted
an important governmental function.
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Although we cannot be certain about the meaning of Bankston, we
interpret it to consider the extent of the departure under § 5K2.7 for two
reasons. First, to do otherwise would ignore the terms used in Bankston and
generate an unnecessary conflict with the clear language of § 5K2.7.2 Second,
Bankston was not writing on a blank slate: pre-Bankston precedent—which
binds us to the extent that Bankston conflicts with that earlier
precedent—emphasizes that the significance of the disruption is the necessary
predicate for applying a § 5K2.7 upward departure. See, e.g., United States v.
Hatch, 926 F.2d 387, 397 (5th Cir. 1991) (finding that the large amount of the
“loss caused a serious disruption of a governmental function”); United States v.
Garcia, 900 F.2d 45, 48–49 (5th Cir. 1990) (finding that there was a “serious
disruption” because the postal theft was of an unusually large quantity); United
States v. Murillo, 902 F.2d 1169, 1174 (5th Cir. 1990) (finding that the
defendant’s actions “severely compromised” the governmental function). The
Bankston court was aware of this precedent and could not have departed from
it, see Caillouet v. First Bank & Trust (In re Entringer Bakeries Inc.), 548 F.3d
344, 348–49 (5th Cir. 2008) (“We have often commented that in the absence of
an intervening contrary or superseding decision by this court sitting en banc or
by the United States Supreme Court, a panel cannot overrule a prior panel’s
decision.”) (internal quotation marks and citation omitted), and we will not
interpret Bankston to depart improperly from that precedent absent a clear
statement. In any case, we remain bound by that earlier precedent. United
States v. Walker, 302 F.3d 322, 325 (5th Cir. 2002) (“[O]ne panel may not
overrule a prior panel opinion[,] and the earlier precedent controls.”); Alcorn
2
Notably, as the government here concedes, even under the second clause of § 5K2.7,
the sentencing court may consider either or both of the nature and extent of the disruption and
the importance of the governmental function affected. The importance of the government
function is never the only relevant consideration. Thus, this court’s opinion in Bankston is
best construed as focusing on the issues raised in that case.
11
County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir. 1984) (“In
choosing between conflicting precedents, this court has held that the older rule
is presumptively correct.”), abrogated on other grounds as recognized by United
States v. Cooper, 135 F.3d 960 (5th Cir. 1998).3 Thus, we disagree with the
government’s argument and the district court’s (justifiably) hesitant conclusion
that Bankston binds the sentencing court to examine only the importance of the
governmental function when deciding whether to apply the § 5K2.7 upward
departure. The law of this court has been, and continues to be, that the
sentencing court needs to find a “significant disruption” pursuant to the first
clause of § 5K2.7 before applying an upward departure.
In sum, the district court incorrectly concluded that it was constrained by
Bankston to examine only the importance of the governmental function when
deciding whether the threshold of the first clause of § 5K2.7 was satisfied. As
such, we vacate Conroy’s sentence and remand to the district court to
apply—with full deference to its sentencing discretion—the two-step approach
discussed herein in considering an upward departure under § 5K2.7: first,
determine if there was a “significant disruption of a governmental function”;
second, if the first inquiry is answered in the affirmative, consider both “the
nature and extent of the disruption and the importance of the governmental
function affected” to determine the size of the upward departure.
III. CONCLUSION
3
Bankston has never been cited for the proposition that the only relevant factor under
§ 5K2.7 is the importance of the governmental function. Indeed, our case law since Bankston
confirms that district courts in this jurisdiction should consider the significance of the
disruption in determining whether to impose an upward departure. See United States v.
Angleton, 201 F. App’x 238, 243 (5th Cir. 2006) (discussing the number of fraudulent passport
applications filed by the defendant and the fact that the defendant fled the jurisdiction);
United States v. Benitez-Torres, 73 F. App’x 78, 2003 WL 21756391, *9 (5th Cir. 2003) (noting
that the defendant’s conduct caused Border Patrol Agents to far exceed their normal activities
and to suspend normal operations).
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For the reasons stated above, we AFFIRM Conroy’s conviction,
VACATE her sentence, and REMAND to the district court for resentencing
consistent with this opinion.
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