United States v. Cothran

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