UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4725
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt,
Senior District Judge. (7:10-cr-00093-BR-1)
Submitted: April 25, 2012 Decided: May 4, 2012
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Charlette Dufray Johnson, Appellant Pro Se. Kristine L. Fritz,
Jennifer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlette Dufray Johnson pled guilty to two counts of
violating 18 U.S.C. § 287 (2006), eight counts of violating 18
U.S.C. § 1343 (2006), and two counts of violating 18 U.S.C.
§ 1028(a)(1)-(b) (2006), based on fraudulent claims for disaster
assistance submitted to the Federal Emergency Management Agency
(“FEMA”); wire fraud related to fraudulent claims submitted to
the Gulf Coast Claims Facility (“GCCF”); and identity theft.
She was sentenced to 121 months’ imprisonment and ordered to pay
restitution in the amount of $107,593.30. On appeal, Johnson,
proceeding pro se, asserts numerous errors regarding her
convictions and sentence. Finding no merit to Johnson’s attack
on her convictions, we affirm the convictions. We conclude,
however, that Johnson’s sentence is procedurally unreasonable
and that the restitution order is not supported by the offenses
of conviction. We therefore vacate Johnson’s sentence and the
order of restitution, and remand for further proceedings.
Johnson pled guilty without a plea agreement. A
comprehensive review of the record confirms that Johnson’s
guilty plea was knowing and voluntary and that the district
court complied with Federal Rule of Criminal Procedure 11 in
accepting her plea. Johnson argues that the district court
erred in denying her motion to withdraw her guilty plea. This
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court reviews a district court’s denial of a motion to withdraw
a guilty plea for abuse of discretion. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). “A defendant has
no absolute right to withdraw a guilty plea.” United States v.
Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation
marks omitted). This court closely scrutinizes the Rule 11
colloquy and if it is adequate, “a strong presumption that the
plea is final and binding” attaches. United States v. Lambey,
974 F.2d 1389, 1394 (4th Cir. 1992). Here, the district court
conducted the Rule 11 proceeding twice. Johnson was aided by
counsel and stated her satisfaction with counsel. Johnson has
not asserted that her plea was not knowing or that she is
innocent. Notably, Johnson never indicated at the Rule 11
hearing that she felt coerced or intimidated into entering her
plea. Indeed, she repeatedly stated exactly the opposite. The
district court considered the applicable factors announced in
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We
thus conclude that the district court did not abuse its
discretion in denying Johnson’s motion to withdraw her plea. We
therefore affirm Johnson’s convictions. *
*
Johnson contends that the district court erred in denying
her motion to substitute counsel prior to sentencing. This
court reviews a district court’s ruling on a motion to
substitute counsel for abuse of discretion. United States v.
(Continued)
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Turning to Johnson’s sentence, this court reviews for
reasonableness, using an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 50 (2007). We must first ensure
that the district court committed no significant procedural
error. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). Johnson argues that the district court erred in applying
the “vulnerable victim” enhancement under the Sentencing
Guidelines and in ordering an excessive amount of restitution.
We find that these arguments are meritorious and thus conclude
that Johnson’s sentence was procedurally unreasonable.
The relevant Guideline provision mandates that “[i]f
the defendant knew or should have known that a victim of the
offense was a vulnerable victim, increase [the offense level] by
2 levels.” U.S. Sentencing Guidelines Manual § 3A1.1(b)(1)
(2010). The commentary to § 3A1.1 defines a “vulnerable victim”
as “a person (A) who is a victim of the offense of conviction
and any conduct for which the defendant is accountable under
§ 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable
due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” USSG § 3A1.1
Perez, 661 F.3d 189, 191 (4th Cir. 2011). Our review of the
record leads us to conclude that the district court did not
abuse its discretion in denying the motion.
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cmt. n.2. The presentence investigation report (“PSR”)
recommended application of the enhancement because “[a]t least
three of the individuals for whom Johnson used their identifying
data are deemed victims.” The district court merely noted that
“the vulnerable victims here are . . . her minor daughter, her
elderly mother, and one [individual] who was an elderly [sic]
and living in a rest home.”
We conclude that the district court erred in failing
to make adequate factual findings to establish a basis for the
enhancement. A district court is required to analyze the
“vulnerable victim” enhancement using a two-prong approach:
First, a sentencing court must determine that a victim
was unusually vulnerable. Second, the court must then
assess whether the defendant knew or should have known
of such unusual vulnerability. . . . In other words,
applying the vulnerable victim adjustment requires a
fact-based explanation of why advanced age or some
other characteristic made one or more victims
unusually vulnerable to the offense conduct, and why
the defendant knew or should have known of this
unusual vulnerability.
United States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010)
(internal quotation marks and citations omitted). Here, the
district court failed to make explicit findings on the record as
to the victims, their unusual vulnerability, and Johnson’s
knowledge of such vulnerability. See id. (“In applying the
vulnerable victim adjustment, the district court simply made a
generalized finding that [the defendant] should have known of
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his victims’ vulnerabilities. This finding, however, . . . does
not sufficiently support application of the adjustment. Indeed,
our precedent stresses the importance of an adequate explanation
for such sentencing decisions.”). Because the district court
did not adequately explain its reasoning for applying the
enhancement, Johnson’s sentence is not procedurally reasonable.
The district court ordered Johnson to pay restitution
to FEMA in the amount of $85,341.30 and to the state of Florida,
Agency of Workforce Innovations, in the amount of $22,252.00
pursuant to 18 U.S.C. § 3663A (2006), the Mandatory Victims
Restitution Act (“MVRA”). The MVRA mandates that the district
court, when sentencing a person convicted of an offense
involving fraud, order “the defendant [to] make restitution to
the victim of the offense.” 18 U.S.C. § 3663A(a)(1). The MVRA
requires district courts to make sufficient factual findings to
support an order of restitution, including findings as to the
defendant’s resources and the feasibility of the manner of
restitution. See United States v. Davenport, 445 F.3d 366, 373
(4th Cir. 2006).
Johnson was not charged with or convicted of
unemployment fraud, nor did the district court make specific
factual findings related to such conduct. Johnson was
nevertheless ordered to pay restitution to the victim of that
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alleged fraud (the Florida Agency for Workforce Innovations).
We conclude that these alleged acts of fraud cannot permissibly
serve as the basis for an order of restitution under § 3663A
because Florida was not “the victim of the offense [of
conviction.]” 18 U.S.C. § 3663A(a)(1).
The district court also imposed restitution in the
amount of $85,341.30 based on fifteen fraudulent FEMA claims,
again without making explicit factual findings. The superseding
indictment, however, described only six fraudulent FEMA claims,
totaling $76,666.30. Johnson pled guilty to only two of those
counts (totaling $53,666.30) and the remaining four counts were
dismissed. We conclude that the district court improperly
imposed restitution for conduct that was not included in
Johnson’s offenses of conviction. See Llamas, 599 F.3d at 390-
91. We therefore vacate the restitution order and remand for
further consideration.
We conclude that the remainder of Johnson’s arguments
are without merit. Accordingly, we affirm Johnson’s
convictions, vacate her sentence and the order of restitution,
and remand for further proceedings. We deny Johnson’s motions
to reconsider the order denying her motion for a stay or
injunction pending appeal, and deny her motions and supplemental
motions to file a supplemental brief, to dismiss the superseding
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indictment, to unseal and release the grand jury transcript, and
for bail. We also deny her motions to expedite. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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