IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-30743
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID LEE COTHRAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
August 8, 2002
Before DAVIS, SMITH, and BENAVIDES, times, and Cothran began defrauding his sup-
Circuit Judges. pliers. The government maintains that the
scope of his intentional fraud swept broadly;
JERRY E. SMITH, Circuit Judge: Cothran states that his initial underpayments
and bad checks were accidental, and he began
David Cothran pleaded guilty to one count defrauding his suppliers at a later date.
of mail fraud in violation of 18 U.S.C. §§ 1341
and 2. He attacks his conviction and sentence In 1996, Cothran paid two suppliers with
on many grounds. Finding no error, we affirm. company checks drawn from closed accounts.
On November 5, 1996, he paid for a delivery
I. from Gateway Computers using a company
Cothran owned Capricorn Services, which check for $14,022. On December 18 and 20,
sold computers. The business fell on hard he paid for deliveries from Micron Electronics
with checks that totaled $10,281. When the Cybermax Computer delivered $46,533
bank declined to honor the checks, vendors’ worth of computer equipment in exchange for
losses totaled $24,303. a worthless check. Cothran admits that in Oc-
tober 1997, he faxed a forged authorization to
In 1997, Cothran began ordering computers Federal Express on behalf of Midwest Micro,
and making only partial payments, failing to which delivered $7,516.49 of computer
pay for them altogether, paying with checks equipment, and Cothran tendered a check on
drawn on a closed account, and eventually a closed account. In November 1997, Cothran
forging vendor authorizations for delivery. On ordered $5,047 in equipment from Arlington
March 5, 1997, he accepted a delivery from Computers, and the UPS delivery person
Gateway Computers and wrote a check on a dropped off the computers without collecting
closed account for $16,820. On March 28 and payment. Cothran did not ever tender the
May 14, 1997, he convinced EPS Technolo- money to Arlington Computers.
gies to ship him $33,799. worth of computer
equipment, for which he made only a partial Cothran continued this pattern well into
payment. On June 18 and July 29, 1997, he 1998. On January 14, 1998, Dell Computers
convinced PC Connections to ship him sent Cothran $29,253.12 worth of computers;
$45,088.75 worth of computer equipment, and he disputed the price terms and failed to make
he made only partial payment. On July 3, any payments. On March 31, 1998, Multi-
1997, Anson Computers, Inc., supplied him Tech delivered $15,007.80 in computer
with $10,670 of equipment, and Cothran never equipment in exchange for a check drawn on
paid. On July 29, he turned again to Gateway a closed account. On June 16, 1998, Federal
Computers, who delivered equipment for a Express received a letter from a company
cashier’s check in the amount of $5,796; after claiming to be Quantex Microsystems, Inc.,
receiving delivery, Cothran stopped payment and authorizing Cothran to pay by company
on the check. check. Quantex delivered $31,396 in
computer equipment and received a check on
In September or October 1997, Cothran a closed account in return. In June 1998, UPS
made a series of orders that, on their face, re- received a faxed letter purportedly from DTK
quired him to deceive the vendor or carrier be- Computers, Inc., authorizing payment by com-
fore taking delivery. The government alleges pany check. UPS delivered computer
that on September 12, 1997, Cothran began equipment worth $11,060 in exchange for a
actually forging the computer suppliers’ check drawn on a closed account.
authorizations for him to pay by company
check. On September 12, 1997, a letter was II.
faxed from a company claiming to be Cyber- The grand jury returned a fourteen-count
Max Computer and authorizing United Parcel superseding indictment charging Cothran with
Service (“UPS”) to accept payment by mail fraud in violation of 18 U.S.C. § 1341
company check. The government argues that and 2. Cothran unsuccessfully moved to
Cothran faxed the letter; Cothran claims that a dismiss counts 1-7 and 10-12 for failure to
former employee, Ryan Anderson, sent the fax state an offense against the United States. The
and check. government then filed a bill of information
charging Cothran with one count of mail fraud.
2
Cothran waived his right to indictment and indictment.1
pleaded guilty to the bill of information,
whereupon the indictment was dismissed. Relying on United States v. Meacham, 626
F.2d 503, 509-10 (5th Cir. 1980), Cothran
At sentencing, the court adopted the factual argues that the guilty plea does not waive his
findings and guideline application of the pre- right to challenge the sufficiency of the
sentence report (“PSR”). The court classified indictment. We so held in Meacham, because
Cothran’s criminal history as category II and we classified as jurisdictional the requirement
calculated a total offense level of 13, yielding that the indictment state an offense. Id. In
a guideline range of 15-21 months’ United States v. Cotton, 122 S. Ct. 1781, 1785
imprisonment. The court sentenced Cothran (2002), the Court held that defects in the in-
to 18 months’ imprisonment and a three-year dictment are not jurisdictional. The Court ap-
term of supervised release. As part of his plied plain error review because a defendant
supervised release, the court forbade Cothran had failed to challenge the sufficiency of the
from gambling and gave the probation office indictment before or during trial. Id. at 1786.
permission to require substance abuse
treatment. The court also ordered Cothran to Cotton demonstrates that standard waiver
pay $232,177.16 in restitution. principles apply to defects in the indictment.
Cothran’s guilty plea and waiver to the right of
III. indictment were knowing and voluntary, so he
Cothran argues that his indictment failed to waived any defects in the indictment.
state an offense against the United States; he
did not voluntarily enter the plea bargain; his B.
counsel provided ineffective assistance; the Cothran argues that he did not voluntarily
prosecution violated the Fifth Amendment’s enter the plea bargain because his attorney im-
Double Jeopardy Clause; the prosecutor acted permissibly pressured him to accept the plea.
vindictively and maliciously; and the United He did not attempt to withdraw his plea in the
States unlawfully seized evidence. We reject district court and raises this argument for the
each of these arguments in turn. Many are first time on appeal, so we review its
waived. voluntariness for plain error. FED. R. CRIM. P.
52(b); United States v. Milton, 147 F.3d 414,
A. 420 (5th Cir. 1998).
Cothran argues that many counts of the
indictment fail to state an offense against the
United States. Cothran, however, voluntarily 1
waived his right to an indictment when he United States v. Gaudet, 81 F.3d 585, 590
(5th Cir. 1996) (holding that if defendant pleads
pleaded guilty and agreed to the bill of
guilty to bill of information that supersedes the
information. Rule 7(b), FED. R. CRIM. P., indictment, his failure to understand indictment is
permits the defendant to waive prosecution by irrelevant); United States v. Moore, 37 F.3d 169,
indictment, in open court, for an offense 173 (5th Cir. 1994) (“Defendant’s acquiescence in
punishable by a term of imprisonment of more the filing of their signed waiver amounted to a
than one year. We repeatedly have upheld waiver of indictment in open court.”); United
defendants’ waivers of their right to States v. Montgomery, 628 F.2d 414, 416 (5th Cir.
1980) (finding waiver voluntary).
3
The defendant must enter the plea defendant’s statements at the plea colloquy.2
agreement voluntarily. See Boykin v.
Alabama, 395 U.S. 238, 242-44 (1969). Rule To counter his statements in open court,
11(d), FED. R. CRIM. P., requires the court to Cothran alleges that the general mental strain
address the defendant in open court and of the situation and his attorney’s heavy-
determine that the plea is voluntary and not the handed advice compromised voluntariness.
result of unlawful force, threats, or promises. According to Cothran, on the day he was
The Supreme Court has defined a voluntary scheduled to sign his plea agreement, he
plea: changed his mind. The defense attorney in-
formed the United States and then warned
A plea of guilty entered by one fully Cothran that “you have made it bad for
aware of the direct consequences, yourself”. The attorney had earlier told
including the actual value of any Cothran that his own “opening statement will
commitments made to him by the court, convict you.” In response to his attorney’s
prosecutor, or his own counsel, must admonitions about the consequences of
stand unless induced by threats (or pleading not guilty, Cothran reversed again
promises to discontinue improper and decided to plead guilty.
harassment), m isrepresentation
(including unfulfilled or unfulfillable A defense attorney should make informed
promises), or perhaps by promises that predictions about the consequences of either
are by their nature improper as having pleading guilty or going to trial. We have held
no proper relationship to the that a defense lawyer’s stern warnings about
prosecutor’s business (e.g., bribes). the client’s chances of success at trial, the po-
tential for prison time, and the lawyer’s
Brady v. United States, 397 U.S. 742, 755 potential withdrawal do not compromise
(1970) (internal quotations omitted) (quoting voluntariness.3 Even if Cothran’s lawyer
Shelton v. United States, 246 F.2d 571, 572
n.2 (5th Cir. 1972) (en banc), rev’d on other
grounds, 356 U.S. 26 (1958). 2
Blackledge v. Allison, 431 U.S. 63, 73 (1977)
(“Solemn declarations in open court carry a strong
At the plea colloquy, Cothran stated that presumption of verity.”); United States v. Abreo,
his plea was free and voluntary and made with 30 F.3d 29, 31 (5th Cir. 1994) (placing great
the advice of counsel. He stated that he had weight on defendant’s statements at plea colloquy);
discussed the matters with his attorney, and he United States v. Madonado-Rodriguez, 64 F.3d
said that he was satisfied with his attorney’s 719, 733 (1st Cir. 1995) (giving credence to
advice. When the district court asked “Did finding, at plea colloquy, that defendant had not
anybody lean on you, twist your arm, use un- been pressured rather than to defendant’s later,
self-serving statements).
due persuasion to cause you to enter a plea of
guilty today?,” Cothran responded “no, sir.” 3
Uresti v. Lynaugh, 821 F.2d 1099, 1101-02
Reviewing courts give great weight to the (5th Cir. 1987) (finding plea voluntary where at-
torney warned client that he would be lucky to get
99 years if he went to trial and threatened to
withdraw if client pleaded not guilty); Jones v.
(continued...)
4
warned that he would almost certainly lose at district court because of his client’s uncooper-
trial and face a harsh sentence, these were ativeness, but a transcript of that hearing was
warnings, not threats. Cothran’s statements not included in the record on appeal. We do
during the plea colloquy should control. not know whether Cothran sought to have his
attorney removed for the same reasons that he
Cothran also states that his counsel “told now claims his assistance to have been
[him] to sign [the] rule 11 package without ineffective.
any consultation as to its content.” Cothran’s
position flatly contradicts the statements he We do not usually review claims of
made at the plea colloquy. The court asked ineffective assistance of counsel on direct
Cothran whether he had consulted with his appeal, because the record is rarely sufficiently
lawyer about the plea, the bill of information, developed to enable appellate review. United
and the constitutional rights that he was States v. Jennings 891 F.2d 93, 95 (5th Cir.
waiving. Cothran responded that he had so 1989). Where a defendant’s motion to remove
consulted with his lawyer. Once again, we counsel does not raise the same grounds as
give the statements during the colloquy greater does the ineffective assistance claim, we will
weight than we give unsupported, after-the- not address the question on direct appeal.
fact, self-serving revisions. United States v. Andrews, 22 F.3d 1328, 1345
(5th Cir. 1994). We therefore affirm the dis-
If, on the other hand, by the rather cryptic trict court’s assessment of Cothran’s plea as
statement in his appellate brief, Cothran means voluntary, without prejudice to Cothran’s right
that he did not have an opportunity to read the to raise an ineffective assistance of counsel
plea or bill of information, then it is irrelevant. claim in a proceeding under 28 U.S.C. § 2255.
We have held that a defendant’s after-the-fact We do not mean to imply that such a claim
testimony that he did not read the plea is would have merit.
irrelevant where the colloquy demonstrates
that he understood the plea. United States v. C.
Navejar, 963 F.2d 732, 735 (5th Cir. 1992). Cothran argues that the federal prosecution
We reject Cothran’s arguments that he did not violates the Fifth Amendment’s Double
enter the plea voluntarily. Jeopardy Clause. In April 2000, Cothran
pleaded guilty to attempted felony theft in
Cothran also argues that his trial counsel Louisiana state court and received a six-month
was constitutionally ineffective, both in suspended sentence. In May 2000, the United
recommending a plea and in arguing his States indicted him for the same underlying
sentence to the district court. Cothran states conduct.
that he sought to have his attorney removed.
Cothran’s counsel did move for removal in the Cothran’s guilty plea might not waive a
double jeopardy claim apparent from the rec-
ord and the face of the state and federal
3
(...continued) indictments. A defendant who pleads guilty
Estelle, 584 F.2d 687, 689-90 (5th Cir. 1978) may raise a double jeopardy claim on collateral
(holding that defense counsel’s impatience and review if “the determination of that the second
stern demand for an answer were not enough to indictment should not go forward should have
make guilty plea involuntary).
5
been made by the presiding judge at the time another state’s investigators and pooling
the plea was entered on the basis of the information.
underlying record.” 4 This principle
presumably extends to direct review as well. D.
Cothran did not raise this argument in the “A plea of guilty admits all the elements of
district court, so we review it only for plain a formal criminal charge and waives all non-
error. Milton, 147 F.3d at 420. jurisdictional defects in the proceedings
leading to conviction.”5 The plea waives
Two different sovereigns may prosecute a claims of governmental misconduct during the
person for a single act that violates their investigation and improper motives for
respective laws. Heath v. Alabama, 474 U.S. prosecution. United States v. Owens, 996
82, 88-89 (1985). Subsequent federal F.2d 59, 60 (5th Cir. 1993). A guilty plea also
prosecution might violate the Constitution eliminates objections to searches and seizures
only if the “federal prosecution was a sham or that violate the Fourth Amendment.6 We
tool of the state prosecution.” United States therefore refuse to consider Cothran’s
v. Moore, 958 F.2d 646, 650 (5th Cir. 1992). arguments about the impropriety of the
The defendant bears the burden of proving that investigation and search of his business.
one sovereign used another as a tool or sham.
United Sates v. Logan, 949 F.2d 1370, 1380 IV.
n.16 (5th Cir. 1991). Mere propinquity Cothran argues that the district court
between the state and federal prosecutions will incorrectly calculated his criminal history
not satisfy the defendant’s burden. United category, the amount of loss, and restitution.
States v. Cooper, 949 F.2d 737, 751 (5th Cir. He also avers that the district court erred by
1991). failing to grant him a downward departure
based on family circumstances and by
Cothran alleges only that a single police attaching certain conditions to his supervised
officer participated in both the state and
federal proceedings. He does not detail that
officer’s involvement and does not point to
specific portions of the record. Assuming the 5
United States v. Smallwood, 920 F.2d 1231,
truth of his allegations, they do not even begin 1240 (5th Cir. 1991). See United States v. Bell,
to satisfy his burden of proving that Louisiana 966 F.2d 914, 915 (5th Cir. 1992) (collecting Fifth
used the federal prosecution as a “tool or Circuit cases).
sham.” Without more, a sovereign would not 6
sacrifice its independence by consulting United States v. Wise, 179 F.3d 184, 186 (5th
Cir. 1999) (“When the trial court denies a motion
to suppress and the defendant subsequently enters
an unconditional plea of guilty, the defendant has
4
United States v. Broce, 488 U.S. 563, 575 waived the right to raise further objection to that
(1988); Taylor v. Whitley, 933 F.2d 325, 327 evidence.”); Franklin v. United States, 589 F.2d
(“[A] defendant may assert in a collateral attack 192, 194-95 (5th Cir. 1979) (“Franklin’s claims
that the face of the indictment or record against regarding Miranda warnings, coerced confessions,
him establishes that his convictions violate the perjury, and illegal searches and seizures are not
constitutional prohibitions against double jurisdictional in nature and thus do not require our
jeopardy.”). consideration.”).
6
release.7 now claims innocence.
We review de novo the application of the
sentencing guidelines, but we review factual Cothran states that he possessed a firearm
findings only for clear error. United States v. dealer’s license from the Bureau of Alcohol
Haas, 171 F.3d 259, 268 (5th Cir. 1999). Tobacco and Firearms. He claims that no lo-
Cothran bears the burden of showing the in- cal or federal law makes it a crime to possess
formation contained in the PSR “cannot be a firearm with the proper authority in plain
relied on because it is materially untrue, view. He reasons that this makes the
inaccurate, or unreliable.” United States v. conviction unconstitutional and permits him to
Londono, 285 F.3d 348, 354 (5th Cir. 2002) challenge it. Cothran, however, did not raise
(internal quotation and citation omitted). “In this argument in his objections to the PSR. He
general the PSR bears sufficient indicia of re- has not provided any record evidence that he
liability to be considered as evidence by the had a federal license to sell firearms in 1987.
district court, especially when there is no evi- He offers zero proof to counter the state
dence in rebuttal.” Id. “Mere objections do court’s finding of guilt. That finding is
not suffice as competent rebuttal evidence.” enough, absent evidence that the conviction
United States v. Lowder, 148 F.3d 548, 552 was reversed, vacated, or ruled
(5th Cir. 1998) (citation omitted). constitutionally invalid.
A. Cothran also argues that his guilty plea to
Cothran challenges the inclusion of two pri- possession of marihuana should not be
or offenses in the criminal history calculation. included in the sentence calculations because
The PSR recommended a single guideline the county court sentenced him to deferred
point for Cothran’s 1987 conviction in a Texas adjudication. We have held that U.S.S.G.
court of unlawfully carrying a weapon. § 4A1.1(c) includes Texas’s deferred
Although the sentencing guidelines do not adjudications, because the defendant enters a
augment a criminal defendant’s right to guilty plea prior to the deferral. United States
collateral attack of past convictions,8 Cothran v. Gooden, 116 F.3d 721, 724 (5th Cir. 1997);
United States v. Stauder, 73 F.3d 56, 57 (5th
Cir. 1996). We reject Cothran’s challenges to
7
Cothran generally asserts that the district the criminal history calculations.
court violated F ED. R. CRIM. P. 32, erred in
focusing on relevant conduct, did not make specific B.
findings about the PSR, and made erroneous fac- Cothran challenges the finding that his
tual conclusions. Although we construe pro fraud and relevant conduct caused a loss of
se briefs liberally, these arguments are so con- over $120,000. The PSR concluded that every
clusional as to be incomprehensible, so we consider unpaid debt described grew out of an
them not adequately briefed and abandoned. Yohey
intentional scheme to defraud vendors. As a
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
result, the PSR calculated the loss as
Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). We
address Cothran’s more specific arguments infra.
8
(...continued)
8
United States Sentencing Commission, GUIDELINES MANUAL, § 4A1.2, comment. (n.6)
(continued...) (Nov. 2000).
7
$282,290.16 and recommended an eight-level paid with company checks drawn on a closed
enhancement under U.S.S.G. § 2F1.1(b)(1). business account and caused losses of
The guidelines recommend a seven-level $56,130.80.
enhancement for a loss greater than $120,000.
At sentencing, the court concluded that, Cothran challenges only one of the
although some of Cothran’s challenges might transactions in the first category. He argues
have merit, they would not reduce the loss that one of his employees, ordered the
amount below $120,000. The sentence of computer equipment, faxed the false approval
eighteen months is at the high end of the to the carrier, and wrote the check for $46,533
guideline range for fraud that creates a loss on the closed account. Cothran’s brief does
greater than $120,000. not provide record citations, and we cannot
find a copy of the computer equipment order,
In calculating the loss or harm caused by fax, or check in the record. The court also
fraudulent conduct, the sentencing court noted that it would be difficult to determine
should make a reasonable estimate given who had actually written the fax, because the
available information. U.S.S.G. § 2F1.1, signer forged the signature of another. The
comment. (n.9). The court often will base that PSR and the court concluded that Cothran’s
estimate on the fair market value of the item admissions that he used this scheme on
stolen or destroyed. U.S.S.G. §2F1.1, separate occasions sufficed to show his
comment. (n.8); United States v. Izydore, 167 involvement with this fraud. We cannot say
F.3d 213, 223 (5th Cir. 1999) We give the that the court committed clear error by holding
district court wide latitude to determination Cothran responsible, given that he did not
the amount of loss. United States v. Alford, present any evidence.9
142 F.3d 825, 831 (5th Cir. 1998). The
determination of the amount of loss is a factual Cothran challenges the inclusion of all of
finding reviewed for clear error. United States the checks drawn on closed accounts. He
v. Glinsey, 209 F.3d 386, 393 (5th Cir.), cert. points to Williams v. United States, 458 U.S.
denied, 531 U.S. 919 (2000). 279, 284-85 (1982), holding that 18 U.S.C.
§ 1014 does not proscribe passing a bad check
Relevant conduct includes all actions and issued by a federally insured bank. The Court
omissions caused by the defendant or noted that the check itself is not a
undertaken in the commission of a criminal representation about the balance in the
scheme. U.S.S.G. § 1B1.3. We review for account, and the bad check does not defraud
clear error the classification of behavior as
relevant conduct. United States v. Peterson,
101 F.3d 375, 385 (5th Cir. 1996). 9
Cothran argues that the losses suffered by
Quantex should not be included because the gov-
The court included two broad classes of ernment had launched a sting operation and there
transactions to find that the total loss amount was no risk of actual loss. This argument is friv-
was greater than $120,000: (1) Cothran olous; the guidelines permit the court to look to
forged a letters from the vendor and faxed the intended loss, USSG § 2F1.1, comment. (n.8);
letters to the carrier to alter delivery terms and United States v. Moser, 123 F.3d 813, 830 (5th
create total losses of $96,505.49; (2) Cothran Cir. 1997), and Cothran admitted this loss in his
guilty plea and admission to the bill of information.
8
the financial institution. Id. The Court Finally, Cothran levies a broad charge at
emphasized that the government had not both categories of loss by arguing that the
established the defendant’s intent or a scheme court should have offset the loss amounts by
to defraud the bank. Id. at 286-87. his partial, later payment. Payment of
restitution after the discovery of a fraudulent
The government, however, did not charge scheme cannot reduce the loss amount.
Cothran under § 1014 for defrauding banks United States v. Akin, 62 F.3d 700, 702 (5th
but under §§ 1341 & 2 for using the mails to Cir. 1995). The district court did not commit
defraud the computer vendors. To convict un- clear error by finding that Cothran’s criminal
der these statutes, the government must prove scheme created at least $120,000 in losses.
(1) that the defendant used the mail (2) to ex-
ecute a scheme to defraud (3) with the specific C.
intent to defraud. United States v. Tencer, Cothran argues that the court set a grossly
107 F.3d 1120, 1125 (5th Cir. 1997). excessive amount of restitution, $232,177.16.
We review de novo the legality of a restitution
The district court concluded that award. United States v. Norris, 217 F.3d 262,
intentionally writing checks on closed accounts 271 (5th Cir. 2000). If the award is legally
was part of the larger fraudulent scheme, permitted, we review it only for abuse of
where there also was evidence that Cothran discretion. Id.
falsified faxes from the vendors. That scheme
defrauded the vendors out of their computer Cothran argues that because he pleaded
equipment. In this case, unlike in Williamson, guilty to only one count of mail fraud, and the
the district court reasonably inferred both a bill of information listed only a single
larger scheme to defraud and an intent to fraudulent transaction in June 1998, his
defraud based on the offenses of conviction restitution should be limited to the
and relevant conduct.10 Where the consequences of that transaction. The Victims
government has proven the defendant had a and Witness Protection Act of 1982
specific intent to defraud and used bad checks (“VWPA”) requires restitution to the victim or
as part of a broader scheme, we have upheld victims. 18 U.S.C. § 3663A(a)(1),
sentences based on the value of the kited or (c)(1)(A)(ii). In the case of an identifiable
bad checks. United States v. Frydenlund, 990 victim, the court shall “order restitution to
F.2d 822, 825-26 (5th Cir. 1993) (calculating each victim in the full amount of each victim’s
loss based on total amount of overdraft losses.” 18 U.S.C. § 3664(f)(1)(A).
because the guideline looks to the immediate,
out-of-pocket loss caused). Cothran relies on Hughley v. United States,
495 U.S. 411, 420 (1990) (“Hughley I”),
which held that where the defendant pleads
guilty to only one count, the VWPA limits res-
10
We have upheld a conviction under 18 U.S.C. titution to the damage caused by that single
§ 1344 for attempting to issue checks on a non- count. Congress subsequently amended the
existent account where the government proved a VWPA to provide that where a defendant
larger scheme and specific intent to defraud. pleads guilty to an offense involving a scheme,
United States v. Church, 888 F.2d 20, 23-24 (5th conspiracy, or pattern of criminal activity, the
Cir. 1989).
9
court may award restitution to any person indictment and the bill of information identified
directly harmed by the course of conduct. 18 only the fraud of Quantex in June 1998. On
U.S.C. § 3663(a)(2); United States v. the other hand, count 13 contains language
Hughley, 147 F.3d 423, 437 (5th Cir. 1998) suggesting that the Quantex fraud was part of
(“Hughley II”). We have reconciled Hughley a larger scheme or pattern of fraudulent
I and the congressional amendments by activity.
holding that where a fraudulent scheme is an
element of the conviction, the court may Both the government and Cothran’s
award restitution for “actions pursuant to that interpretations are plausible, but based on the
scheme.” United States v. Stouffer, 986 F.2d indictment and bill of information alone, the
916, 928 (5th Cir. 1993). scheme was limited to the Quantex fraud in
June 1998. The defendant has no control over
The bill of information describes the actions the language that the government uses in the
that Cothran took to defraud Quantex in June indictment; the bill of information more
1998. On June 16, 1998, he used the names accurately reflects the scope of the agreement
Charles Johnson and Ram Technology to order between Cothran and the government. Coth-
twenty computers from Quantex, which agreed ran also pleaded guilty to the bill of
to ship the computers by Federal Express, cash information, not the indictment. The bill of
on delivery, with payment to be tendered by information, however, is not our only source
cashier’s check. Cothran transmitted a fax of information about the scope of the scheme.
purporting to be from Quantex that permitted
payment with a personal or company check; he The government points out that the plea
then tendered a check on a closed account. agreement provided that “the Court may order
The indictment had described this as count 13 [Cothran] to make restitution to the victims of
and “part of the scheme and artifice to his scheme to defraud and to other computer
defraud.” and delivery companies as set out in the
superseding indictment to whom the
Although we sometimes have struggled to Defendant is indebted . . . .” The plural word
define the outer bounds of a particular “victims” and reference to “other computer
fraudulent scheme, we have focused on the and delivery companies” make plain that this
actions alleged in the indictment and their agreement goes beyond Quantex and beyond
temporal scope.11 In this case, count 13 of the June 1998. We must decide whether the plea
11 11
Hughley II, 147 F.3d at 438 (explaining that (...continued)
the restitution award should be limited to the tem- include all losses imposed during relevant time-
poral scope of the count of conviction); Stouffer, frame and by the methods described in the
986 F.2d at 928-29 (explaining that where indictment because they were part of a larger
indictment defined specific time period, scheme to scheme); United States v. Chaney, 964 F.2d 437,
defraud included all losses caused during that time 453 (5th Cir. 1992) (ruling that an individual’s
period, even though defendants pleaded guilty only conviction for conspiring to and making a false
to specific instances of fraud within that time entry on a questionnaire for bank officers was part
period); United States v. Pepper, 51 F.3d 469, 473 of a larger scheme to cause the bank to issue bad
(5th Cir. 1995) (finding that district court could loans and holding the defendant responsible for all
(continued...) the loans).
10
agreement affects our interpretation of the release. The court, however, noted the many
scope of the scheme alleged in count 13 and cash withdrawals that Cothran made from ca-
the bill of information. sinos while in such dire financial straits that he
had to resort to fraud. The Seventh Circuit
In United States v. Arnold, 947 F.2d 1236, has upheld a similar condition based on similar
1238 (5th Cir. 1991), we considered a plea facts. United States v. Brown, 136 F.3d 1176,
agreement when defining the scope of a 1186 (7th Cir. 1998). We agree with our
fraudulent scheme and amount of restitution. sister circuit: A district court does not abuse
Arnold was an easier case: The defendant did its discretion, much less commit plain error, by
not object in the district court to the restricting a criminal defendant with a history
characterization of the scheme or the of excessive gambling from visiting casinos or
restitution amount, further demonstrating the gambling during supervised release.
parties’ mutual understanding. Id. Arnold’s
principle, however, extends to cover the The district court also required Cothran to
current case. Because Cothran’s plea receive “substance abuse treatment as directed
agreement contemplated a scheme that went by the probation office.” The defendant must
beyond the June 1998 fraud on Quantex to the refrain from drug use as a mandatory condition
other frauds alleged in the indictment, we of supervised release. U.S.S.G. § 5D1.3(a)(4);
interpret the conviction as part of this broader 18 U.S.C. § 3583(d). The court can require
scheme; under our precedent, the district court participation in a substance abuse program if it
could award restitution to all of the victims of has reason to believe that the defendant abuses
the broader scheme. controlled substances. U.S.S.G. §
5D1.3(d)(4); 18 U.S.C. § 3563(b)(9). In
D. 1991, Cothran pleaded guilty to possession of
Cothran argues that the court erroneously marihuana. In 1999, he was arrested and
imposed two additional conditions on his su- charged with possession of suspected crack
pervised release. We usually review for an cocaine, but the charges were dismissed. Al-
abuse of discretion the conditions added to su- though Cothran denied drug use, the district
pervised release. United States v. Mills, 959 court had a reasonable basis to grant the
F.2d 516, 519 (5th Cir. 1992). Cothran did probation department the authority to order
not object to these conditions in the district him into drug treatment.
court, however, so we review only for plain
error. Milton, 147 F.3d at 420. The district E.
court has the discretion to impose conditions Cothran appeals the refusal to grant a
“reasonably related” to “the history and downward departure based on his mother’s ill
characteristics of the defendant” or his general health. We lack jurisdiction over the denial of
rehabilitation. 18 U.S.C. § 3583(d); 18 U.S.C. a downward departure unless the district court
§ 3563(b); 18 U.S.C. § 3553(a); U.S.S.G. mistakenly believed it lacked the authority to
§ 5D1.3(b). depart. United States v. Yanez-Huerta, 207
F.3d 746, 748 (5th Cir.), cert. denied, 531
Cothran argues that the court improperly U.S. 981 (2000). The record must
forbade him from gambling or visiting demonstrate that the district court
gambling establishments while on supervised misunderstood its authority. Id. The court in
11
this case properly understood the scope of its
authority but declined to exercise its discretion
to depart. We therefore lack jurisdiction to
review its decision.
AFFIRMED.
12