US v. Ubakanma

• Decision Date: 03 May 2000
• Docket Number: N,V,PLAINTIFF-APPELLE,DEFENDANT-APPELLANT,No. 97-4913,97-4913
• Citation: 2000 WL 749397,215 F.3d 421
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA,CHRISTIAN E. UBAKANMA, UNITED STATES OF AMERICA,CHIDOZIE ONYEKONWU, A/K/A CHARLES THOMAS,o. 97-4914. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 421

215 F.3d 421 (4th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

CHRISTIAN E. UBAKANMA, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

CHIDOZIE ONYEKONWU, A/K/A CHARLES THOMAS, DEFENDANT-APPELLANT.

No. 97-4913, No. 97-4914.

U.S. Court of Appeals, Fourth Circuit.

Argued: May 3, 2000.

June 12, 2000.

Appeals from the United States District Court for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge. (CR-97-108-PJM). [Copyrighted Material Omitted] Marc Lanny Resnick, Washington, D.C., for Appellant Ubakanma; Robert Thomas Durkin, Jr., Baltimore, Maryland, for Appellant Onyekonwu. David Ira Salem, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON Brief: Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.

Before Niemeyer, Traxler, and King, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

OPINION

King, Circuit Judge

In these consolidated actions, Christian Ubakanma and Chidozie Onyekonwu appeal their convictions and sentences in the District of Maryland, following their guilty pleas to a single count of wire fraud, in violation of 18 U.S.C. § 1343. The plea agreements stipulated facts detailing the defendants' respective roles in a fraud scheme involving solicitations for investments in a fictitious contract with the Nigerian government.

For the reasons explained below, we affirm Ubakanma's conviction and sentence of thirty months in custody and three years of supervised release. However, we vacate the district court's order that Ubakanma pay $5,400 in restitution, and we remand this aspect of his case for further proceedings. We likewise affirm Onyekonwu's wire fraud conviction. However, we vacate his sentence of forty-six months of incarceration and five years of supervised release, as well as the order that he pay $12,000 in restitution. We also remand Onyekonwu's case for further proceedings.

I.

Each of the defendants challenges the validity of his guilty plea to wire fraud. We review their challenges in turn.

A.

Shortly after entering his guilty plea in August 1997, but before sentencing, Ubakanma wrote the court requesting that his plea be withdrawn and that new counsel be appointed. He asserted that he is innocent and that he had pleaded guilty due to his attorney's intimidation and poor advice. The district court denied this motion without a hearing. Ubakanma asserts on appeal that the court erred in denying his requests to withdraw his guilty plea and for appointment of new counsel.

We review the denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Brown , 617 F.2d 54 (4th Cir. 1980). There is no absolute right to withdraw a guilty plea, see United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), thus the defendant has the burden of showing a fair and just reason for withdrawal. See id.; see also United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995) (a "fair and just" reason is one that"essentially challenges" the fairness of a proceeding under Fed. R. Crim. P. 11). In determining whether a defendant has met his burden, courts consider multiple factors: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources.¹ See Moore, 931 F.2d at 248.

On the first factor, the record reflects that the district court conducted a thorough and comprehensive Rule 11 hearing prior to accepting Ubakanma's guilty plea. In that proceeding, Ubakanma acknowledged under oath that the factual stipulations underlying his plea (and read into the record in open court) were true. He stated, among other things, that no one had coerced him into pleading guilty and that he was in fact guilty of the wire fraud offense. Ubakanma was advised of the essential terms of the plea agreement, and he asserted under oath that he understood them. The court reviewed the maximum permissible sentence on the wire fraud conviction, and Ubakanma acknowledged that he understood. The court also advised Ubakanma of the constitutional rights being waived by his guilty plea, and he again indicated his understanding. In these circumstances, Ubakanma's conclusory post-plea assertions that his plea was not knowing and voluntary, made in his unsworn letter to the court, fail to overcome the barrier of the sworn statements made at his Rule 11 hearing. We therefore agree with the district court in weighing this factor in favor of the Government.

As to the second factor, Ubakanma conclusorily asserts his legal innocence. In light of his contrary statements during the Rule 11 proceeding, we also agree with the district court that this factor weighs strongly in favor of the Government.

As to the fourth factor, our analysis is informed by the standard that when a defendant alleges ineffective counsel as the sole basis for a motion to withdraw his guilty plea, he must establish: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that there was a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989) (citation omitted). In this regard, the district court found that Ubakanma's counsel "filed and litigated pretrial motions and aggressively negotiated a disposition which, when viewed in light of the alternatives, was quite favorable for Defendant."² Ubakanma's conclusory claims that he was "misinformed" or"intimidated" into pleading guilty are insufficient to overcome the district court's findings and Ubakanma's sworn statements that he was not coerced. Further, Ubakanma acknowledged that he had received a copy of the written plea agreement prior to the plea proceedings; that the contents of the plea agreement were accurate; and that he had knowingly and voluntarily signed the agreement. In addition, the plea agreement clearly provides that Ubakanma had read and carefully reviewed it with his attorney, that he understood its provisions, and that he voluntarily agreed to its terms. In these circumstances, we agree with the district court that this factor also weighs in favor of the Government.

Combining the six Moore factors, only one-- the timeliness of Mr. Ubakanma's motion to withdraw his plea -- weighs in his favor. Therefore, on this record, we cannot conclude that the district court abused its discretion in denying the motion. We therefore affirm Mr. Ubakanma's conviction on his plea of guilty.

B.

The other defendant, Mr. Onyekonwu, raises a post-sentencing challenge to his conviction by guilty plea. In this circumstance, reversal is warranted only if the plea proceedings were marred by a fundamental defect that inherently resulted in a complete miscarriage of justice, or in omissions inconsistent with rudimentary demands of fair procedure. See United States v. Miranda-Santiago , 96 F.3d 517, 522 n.9 (1st Cir. 1996). We have thoroughly reviewed the record, along with the written and oral arguments, and we conclude that Onyekonwu fails to identify any deficiency in the Rule 11 hearing conducted in the district court. We therefore affirm Onyekonwu's conviction.

II.

We next consider the issues raised by the defendants concerning their sentences. First, we consider issues on custodial (imprisonment and supervised release) conditions imposed by the district court, and we then address the requirements that the defendants are to make restitution payments.

A.

1.

Mr. Onyekonwu first asserts that he pleaded guilty to a class D wire fraud felony, which carries a statutory maximum of five years imprisonment, rather than to a class B felony, which provides for a thirty year statutory maximum. As a result, he argues, the district court sentenced him to excessive imprisonment and supervised release. The resolution of this issue turns on whether Onyekonwu's wire fraud conviction "affect[ed] a financial institution." The wire fraud statute under which Onyekonwu was convicted provides, in pertinent part, as follows:

Whoever . . . [commits wire fraud] shall be fined under this title or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C. § 1343 (emphasis added). Both the Supreme Court and this court have concluded that a statutory aggravating circumstance constitutes an offense element for purposes of conviction and sentence. See, e.g., Jones v. United States, 526 U.S. 227, 251 (1999) (construing carjacking statute with aggravating facts to create distinct offenses, where the statute provides for substantially increased punishment in the presence of those facts); United States v. Davis, 202 F.3d 212, 217 (4th Cir. 2000) (construing property destruction statute with aggravating facts to create distinct offenses). We also conclude, in this situation, that the aggravating circumstance available here -- whether the wire fraud crime "affects a financial institution" -- constitutes an offense element and thereby creates a distinct wire fraud offense.³

The stipulated facts underlying the wire fraud offenses, set forth in each of the plea agreements, demonstrate that the funds involved in the fraud scheme were transferred into and out of accounts at various financial institutions. However, there are no facts indicating that the financial...