United States v. McCarty

United States Court of Appeals,

Eleventh Circuit.

No. 95-3686

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard L. McCARTY, a.k.a. Rick McCarty, Defendant-Appellant.

Nov. 12, 1996.

Appeal from the United States District Court for the Northern
District of Florida. (No. 95-CR-03016-2-RV), Roger Vinson, Judge.

Before KRAVITCH, EDMONDSON and COX, Circuit Judges.

PER CURIAM:

Defendant-Appellant Richard L. McCarty was indicted, along

with several codefendants, in an eighteen-count indictment charging

conspiracy, mail fraud, wire fraud, and interstate transportation

of stolen property. Pursuant to a plea and cooperation agreement,

McCarty pled guilty to one count, but prior to sentencing McCarty

filed a motion to withdraw his guilty plea. The trial court denied

the motion. McCarty appeals this denial and the trial court's

denial of his motion for release pending appeal. McCarty also

appeals his sentence, alleging that the district court erroneously

failed to apply a reduction for acceptance of responsibility. No

reversible error has been shown; we affirm.

A. Motion to Withdraw Guilty Plea

Under Fed.R.Crim.P. 32(e) the court may permit withdrawal of

a guilty plea before sentencing upon a showing of "any fair and
 1
just reason." While Rule 32(e) as applied to pre-sentence motions

to withdraw should be liberally construed, a defendant enjoys no

absolute right to withdraw a guilty plea before sentencing. United

States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988). We will

reverse a district court's denial of a motion to withdraw a guilty

plea only when it constitutes an abuse of discretion. United

States v. Medlock, 12 F.3d 185, 187 (11th Cir.1994).

As this court stated in Buckles, 843 F.2d at 471, Rule 32(e)

imposes upon the defendant the burden of showing a "fair and just

reason" for withdrawal of his plea, and the totality of the

circumstances surrounding the plea may be considered in determining

whether the defendant has met this burden. Two factors to be

considered are whether close assistance of counsel was available

and whether the plea was knowing and voluntary.2 Id. at 472.

Defendant argues that he felt compelled to plead guilty because he

was intimidated into doing so by his lawyer who, he claims, failed

to investigate his case or to prepare for trial. Therefore,

Defendant argues, although believing himself to be innocent, he

involuntarily pled guilty. The district court, after hearing

1
Prior to amendments to the Federal Rules of Criminal
Procedure effective December 1, 1994, Fed.R.Crim.P. 32(e) was
Fed.R.Crim.P. 32(d). Except for this change in nomenclature and
minor stylistic changes, Fed.R.Crim.P. 32(e) is the same as its
predecessor Fed.R.Crim.P. 32(d). All references herein are to
Fed.R.Crim.P. 32(e).
2
Other factors include whether judicial resources would be
conserved and whether the government would be prejudiced by
withdrawal. Buckles, 843 F.2d at 472. Here, as in Buckles, the
defendant received both a complete Rule 11 proceeding and a full
evidentiary hearing on the matter. The district court is not
required to find prejudice to the government, Id. at 474,
although the court did so find in the instant case.
testimony on these issues, found and concluded that Defendant had

been ably and professionally represented, that close assistance of

counsel was available and utilized extensively, and that the guilty

plea taken at the Rule 11 proceedings was knowingly and voluntarily

made after the Defendant fully considered all options. That the

Defendant now protests his innocence does not entitle him to

withdraw his plea. Id. at 472-73. No abuse of discretion in

denying the plea withdrawal has been shown.

Defendant argues that, even if his plea was otherwise

knowingly and voluntarily made, he nonetheless should be allowed to

withdraw his plea because the district court ordered restitution in

the amount of $64,740 but failed to mention restitution in the Rule

11 plea colloquy. While Rule 11 requires, before entry of a guilty

plea, a full recitation of the possible penalties to be imposed,

and while this recitation should include a warning, when

applicable, stating the possibility that restitution may be imposed

as part of the ultimate sentence ( see Fed.R.Crim.P. 11[c][1] ),

variance from the requirements of Rule 11 should be disregarded

unless substantial rights are affected. See Fed.R.Crim.P. 11(h).

The question, then, is whether Defendant's substantial rights

were affected by the district court's failure to mention

specifically the possibility of restitution. Defendant was fully

apprised of his obligation to make restitution in the plea and

cooperation agreement with the United States which Defendant signed

and acknowledged at the Rule 11 proceeding. The Presentence

Investigation Report ("PSI") also specifically provided that

"restitution shall be ordered." PSI, p. 19. Defendant was
notified by the district court that he faced a possible fine of

$250,000 on his conviction. At sentencing, the court ordered

Defendant to make restitution, jointly and severally with his

codefendants, in the amount specified in the plea

agreement—$64,740. The imposition of a fine was waived; and

therefore, the total monetary liability of Defendant was

significantly less than the maximum monetary exposure specified in

the plea colloquy.

We have not specifically addressed under what circumstances it

may be harmless error to fail to advise a defendant during Rule 11

proceedings of the possibility of restitution. Several other

circuits have recognized that the substitution of restitution for

a fine can be harmless error where the total monetary liability

does not exceed the maximum fine specified in the plea colloquy.

See, e.g., United States v. Gabriele, 24 F.3d 68, 71 (10th

Cir.1994) (defendant's substantial rights not impaired when ordered

to pay $100,000 in restitution when he knew he could be fined up to

$750,000); United States v. Raineri, 42 F.3d 36 (1st Cir.1994),

cert. denied, --- U.S. ----, 115 S.Ct. 2286, 132 L.Ed.2d 288 (1995)

(harmless error when misinformation at Rule 11 hearing did not

create expectation of lesser penalty than actually received);

United States v. Fox, 941 F.2d 480, 484-85 (7th Cir.1991) (decision

to plead guilty not prejudiced by court's failure to advise of

possibility of restitution when defendant has notice of possible

higher fine); United States v. Miller, 900 F.2d 919, 921 (6th

Cir.1990) (harmless error when restitution substituted for fine

provided restitution ordered is less than potential fine); United
States v. Pomazi, 851 F.2d 244, 248 (9th Cir.1988), overruled in

part on other grounds, Hughey v. United States, 495 U.S. 411, 110

S.Ct. 1979, 109 L.Ed.2d 408 (1990) (no surprise or prejudice in

failure to mention restitution in Rule 11 hearing when defendant

told of potential liability of $500,000 and $64,229 restitution

order imposed); United States v. Fentress, 792 F.2d 461, 465-66

(4th Cir.1986) (no surprise or prejudice when court imposed a

different and lesser penalty of restitution than the maximum

potential fine).

Our attention has been called to only one circuit which has

taken a contrary position. The Second Circuit has held the failure

to mention the possibility of restitution at the Rule 11 hearing is

not harmless error even when the restitution imposed is less than

the maximum fine the defendant understood he might receive. United

States v. Showerman, 68 F.3d 1524, 1528 (2d Cir.1995). Also, in

United States v. Corn, 836 F.2d 889, 895 (5th Cir.1988), the Fifth

Circuit found the district court's broad statement that the

sentencing court could impose sentence however it saw fit and the

plea agreement's equally broad statement that a fine "in any

amount" could be imposed were insufficient to warn of a $6 million

restitution order. But cf. United States v. Stumpf, 900 F.2d 842,

844-45 (5th Cir.1990) (in context of a collateral attack under 28

U.S.C. § 2255, harmless error to fail to warn defendant of a

possible restitution order when restitution amount is less than

maximum defendant told he might be fined).

Looking at the precedents and trying to be realistic in our

policy, we are persuaded that the district court's failure to
mention specifically restitution in the instant case was a variance

from the required Rule 11 procedures which did not affect

substantial rights. Therefore, as prescribed by Rule 11(h), the

failure should be disregarded. Defendant had a full understanding

of what his plea connoted and its consequences.

B. Sentence.

Defendant argues that the district court erred when it refused

to award him a two-level reduction for acceptance of

responsibility. The PSI originally recommended such reduction, but

this recommendation was before McCarty filed a motion to withdraw

his guilty plea and then at the hearing to withdraw, as well as at

the sentencing hearing, protested his innocence and lack of

involvement in the conspiracy. The district court found that

Defendant's post-plea denials of guilt made it "abundantly clear

that Mr. McCarty has not accepted the responsibility." (R5 at 7).

We review the denial of a reduction for acceptance of

responsibility for clear error. United States v. Anderson, 23 F.3d

368, 369 (11th Cir.1994). Where, as here, no objection was raised

at sentencing despite being given a final opportunity to object,

only a showing of manifest injustice will compel review based on

those objections. See United States v. Jones, 899 F.2d 1097, 1103

(11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d

230 (1990), overruled in part on other grounds, United States v.

Morrill, 984 F.2d 1136 (11th Cir.1993).

To qualify for an offense level reduction for acceptance of

responsibility under § 3E1.1 of the sentencing guidelines, a

defendant bears the burden of establishing entitlement by clearly
demonstrating acceptance of responsibility for his offense.

Anderson, 23 F.3d at 369. While the act of moving to withdraw a

guilty plea may not automatically preclude offense level reduction

for acceptance of responsibility, that the district court weighed

McCarty's inconsistent testimony before concluding he had not

clearly demonstrated acceptance of responsibility is clear. No

reversible error has been shown.

Defendant's claim that the district court erred in denying his

motion for release pending appeal is moot.

AFFIRMED.