U.S. v. Powell

• Decision Date: 17 December 2003
• Docket Number: No. 02-21211.,02-21211.
• Citation: 354 F.3d 362
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maggie POWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

354 F.3d 362

UNITED STATES of America, Plaintiff-Appellee, v. Maggie POWELL, Defendant-Appellant.

No. 02-21211.

United States Court of Appeals, Fifth Circuit.

December 17, 2003.

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David Hill Peck (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DeMOSS, DENNIS and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

Appellant Maggie Powell ("Powell") pleaded guilty to one count of violating 18 U.S.C. § 371, conspiracy to commit theft of government property, and one count of violating 18 U.S.C. §§ 641 and 642, theft of and aiding and abetting theft of government property. Before sentencing, Powell moved to withdraw her guilty plea, and the district court denied that motion without conducting an evidentiary hearing. The district court sentenced Powell to 366 days' imprisonment and three years' supervised release, and ordered Powell to pay a $200 special assessment and $190,751.37 mandatory restitution pursuant to 18 U.S.C. § 3663A, also known as the Mandatory Victims Restitution Act ("MVRA"). Powell appeals her conviction and sentence, claiming first, that the district court committed harmful error because it did not inform her of its authority to order mandatory restitution during her plea colloquy, and second, that the district court abused its discretion by denying her motion to withdraw her guilty plea without giving reasons and by not holding an evidentiary hearing on such motion. Both parties agree that the case should be remanded under Fed.R.Crim.P. 36 to correct the judgment to reflect that the health care fraud charge against Powell was dismissed. Because the district court's error in not informing Powell of its authority to order mandatory restitution was harmless and because the district court did not abuse its discretion in denying Powell's withdrawal motion and in not holding a hearing, we AFFIRM the conviction and sentence below. We also REMAND with instruction to correct Powell's judgment to reflect dismissal of the health care fraud charge.

BACKGROUND

On October 4, 2000, Powell and co-defendants Beverly Scott ("Scott") and Doretha Chambers ("Chambers") were indicted by the grand jury of one count of conspiracy to commit theft of government property under 18 U.S.C. § 371 ("count one"); one count of theft and aiding and abetting theft of government property under 18 U.S.C. §§ 641 and 642 ("count two"); and one count of health care fraud under 18 U.S.C. § 1347 ("count three"). This indictment resulted from an undercover investigation initiated in 1997 by the Inspector General of the Office of Investigations for the Department of Veterans Affairs, and joined in mid-1998 by the Drug Enforcement Agency and the Food and Drug Administration's Criminal Investigative Division. The investigation revealed the repeated theft of noncontrolled, prescription drugs by the co-defendant pharmacy technicians from the Veterans Affairs Medical Center outpatient pharmacy ("VAMC"). The investigation also revealed the repeated subsequent delivery and sale of those drugs to William Carrillo ("Carrillo"), owner of Economical Pharmacy.

On July 11, 2000, Special Agent Phillip Eubanks ("Eubanks") with the Department of Veterans Affairs contacted Powell, advised her of his identity, and inquired about theft of drugs from the VAMC. Powell agreed to provide a statement, which she signed. This statement outlined that sometime in 1996, fellow pharmacy technician Scott asked Powell if she needed an extra job and informed Powell that Scott had a contact who would buy stolen drugs from the VAMC. Some months later, Powell agreed to work with Scott to remove drugs from the VAMC and sell them to Scott's contact. This contact was only known to Powell as "Bill." In her statement, Powell indicated that once a month, sometimes twice a month, she would receive a written order, listing what drugs Bill needed, from Scott. Powell would remove those drugs, if available, and place them in a paper bag. Sometimes fellow pharmacy technician Chambers assisted Powell. Then a courier posing as a veteran would arrive at the prescription pickup area at the VAMC and take the bag of drugs; Scott would later retrieve the drugs from the courier, or from her locker where the courier had placed them, and take them to Bill. After meeting with Bill to hand over the drugs, Scott would split the proceeds with Powell and Chambers.

At arraignment on October 16, 2000, Powell entered a plea of not guilty. However, at rearraignment on December 8, 2000, pursuant to a written plea agreement, and with her appointed counsel Robert Fickman ("Fickman") present, Powell pleaded guilty to counts one and two. During Powell's rearraignment, the government laid out a statement of the facts that the government would be prepared to prove at trial. According to the government, this factual basis would be evidenced at trial by Powell's statement, the statements given by Scott and Chambers, and testimony by Eubanks and certain pharmacy employees. The government informed the court that evidence would show Powell assisted in removing drugs from the pharmacy on at least 31 occasions and that the average cost of drugs removed each time was approximately $6,153.27, resulting in a total loss to the government of approximately $190,751.37, based on Powell's conduct. Also, the government stated that at the time of sentencing, it would move to dismiss count three of the indictment.

During the plea colloquy, the district court advised Powell that she faced a maximum of five years in prison and a $250,000 fine for count one, and a maximum of ten years in prison and a $250,000 fine for count two. The district court also informed Powell that she would have to pay a special assessment of $100 for each count and that the court could impose a period of supervised release of up to three years following any term of imprisonment. The district court did not advise Powell that as a consequence of her guilty plea, the court was required to impose mandatory restitution on her pursuant to 18 U.S.C. § 3663A.¹

On July 19, 2001, Fickman was allowed to withdraw as counsel because Powell had terminated him. At that hearing, Powell orally moved to withdraw her guilty plea, but the district court did not allow withdrawal. Sentencing in the case was repeatedly continued. On May 20, 2002, Powell, under new counsel, filed a written motion to withdraw her guilty plea on various grounds, including her contention that the district court's failure to advise her about mandatory restitution violated Rule 11 and rendered her plea involuntary. The district court, without assigning reasons or conducting an evidentiary hearing, denied the motion on May 30, 2002.

The district court sentenced Powell on October 7, 2002, to a 366-day term of imprisonment for each of counts one and two, to run concurrently; a three-year term of supervised release for each of counts one and two, to run concurrently; a mandatory special assessment of $200; and mandatory restitution in the amount of $190,751.37 (liable jointly and severally with co-defendants Chambers and Carrillo, according to the judgment). At sentencing, the government moved and the district court agreed to and ordered dismissal of count three of the indictment. The judgment did not reflect that dismissal. Powell timely appealed.

DISCUSSION

Whether the district court committed harmful error in not informing Powell of the court's authority to impose mandatory restitution.

When a defendant objects at the district court level to the court's failure to comply with Rule 11 during the plea colloquy, this Court reviews the challenge pursuant to the harmless error standard. United States v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc); see also United States v. Vonn, 535 U.S. 55, 71-74, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that plain error review applies to Rule 11 objections raised for the first time on appeal and explaining that harmless error review applies to Rule 11 objections raised before appeal is taken). The two considerations in the harmless error analysis are: (1) whether the sentencing court in fact varied from the procedures required by Rule 11 and (2) whether such variance affected the "substantial rights" of the defendant. Johnson, 1 F.3d at 298. To determine whether an error affects substantial rights, i.e., is harmful, the focus is on "whether the defendant's knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty." Id. at 302.

Rule 11 requires the district court during the plea colloquy to inform the defendant about any mandatory minimum penalty and about the court's authority to order restitution.² Although Powell's plea agreement and PSR both discussed restitution,³ and the government during the plea colloquy discussed the amount of loss attributable to Powell ($190,751.37) and how it was calculated, the district court made no mention of restitution during the plea colloquy at her rearraignment. The government does not contest that the district court erred by varying from the procedure required by Rule 11.

This Court has previously found in United States v. Glinsey, 209 F.3d 386, 395 (5th Cir.2000), that a defendant's substantial rights are not infringed when the district court, contrary to Rule 11, fails to admonish him of the court's authority to order restitution as a penalty where the district court did inform him of the maximum possible fine. There, the district court imposed restitution in the amount of $1,266,317.06 pursuant to 18 U.S.C. § 3663, also known as the Victim and Witness Protection Act ("VWPA").⁴ Glinsey, 209 F.3d at 394-95. This particular amount of...