                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                      REVISED JANUARY 6, 2004               December 17, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                   Clerk



                             No. 02-21211



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                versus

                            MAGGIE POWELL,

                                                 Defendant-Appellant.


            Appeal from the United States District Court
             for the Southern District of Texas, Houston

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



                                        2
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

                                    3
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

                                          4
$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


     1
         Section 3663A provides:

     (b) The order of restitution shall require that such
     defendant–
        (1) in the case of an offense resulting in damage to or
        loss or destruction of property of a victim of the
        offense . . .
           (B) . . . pay an amount equal to–
                (i) the greater of–
                     (I) the value of the property on the
                     date of the damage, loss, or
                     destruction; or
                     (II) the value of the property on the
                     date of sentencing, less
                (ii) the value (as of the date the property
                is returned) of any part of the property that
                is returned.

18 U.S.C. § 3663A(b)(1)(B).     “This section shall apply in all
sentencing proceedings for convictions of, or plea agreements
relating to charges for, any offense . . . that is . . . an offense
against property under this title.” Id. § 3663A(c)(1)(A). Here,
Powell was subject to MVRA because she pleaded guilty to offenses
that are considered “offense[s] against property under this title”
– that is, conspiracy to steal and theft of and aiding and abetting
theft of government property (the VAMC’s drugs) under 18 U.S.C. §§
371, 641, and 642.

                                    5
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.

                                    6
1993) (en banc); see also United States v. Vonn, 535 U.S. 55, 71-74

(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


     2
         Rule 11, at the time of Powell’s plea, stated in part:

     (c) Advice to Defendant. Before accepting a plea of guilty
     or nolo contendere, the court must address the defendant
     personally in open court and inform the defendant of, and
     determine that the defendant understands, the following:
        (1) the nature of the charge to which the plea is
        offered, the mandatory minimum penalty provided by law,
        if any, and the maximum possible penalty provided by
        law, including the effect of any special parole or
        supervised release term, . . . and, when applicable,
        that the court may order the defendant to make
        restitution to any victim of the offense.

Fed. R. Crim. P. 11(c)(1) (2000) (now located at Rule 11(b)(1))

                                     7
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



(emphasis added).
       3
        Powell’s plea agreement stated that “[t]he defendant agrees
that any fine or restitution imposed by the Court will be due and
payable immediately.” Powell’s PSR specifically noted that she
would be held accountable for the entire calculated wholesale loss
of $2,901,903 and would be subject under the MVRA and under § 5E1.1
of the U.S. Sentencing Guidelines to restitution in the amount of
$1,318,284 for the VAMC’s actual loss.      Powell objected to the
amount of the loss calculation in the PSR and to her being held
accountable for the entire amount of such calculated loss. Powell
also objected to the amount and the imposition of restitution due
to her inability to pay. Also, Powell referred to the amount of
$190,751.37, the amount noted by the government during the plea
colloquy as being attributable to Powell’s conduct, as “the correct
provable basis for the loss calculation” to be attributed to
Powell.

                                        8
(“VWPA”).4     Glinsey, 209 F.3d at 394-95.               This particular amount of

loss was calculated using the amount of illegally acquired food

stamps    Glinsey    and     his     co-conspirators             allegedly   redeemed

($1,506,128)     minus     the    total    gross         sales   reported    by   their

businesses ($239,810.94).          Id. at 391.            Because Glinsey had been

warned about a maximum possible fine of $1 million, we reduced the

amount    of   restitution       ordered       to   $1    million   to   prevent   any

infringement of his substantial rights, i.e., harmful error.                        Id.

at 395.

     Here, Powell claims that the district court varied from the

required Rule 11 procedures because the court failed to advise her

at rearraignment that she would be subject to mandatory restitution

under the MVRA.     She claims this variance affected her substantial


     4
       Section 3663 provides:      “The court, when sentencing a
defendant convicted of an offense under this title . . . may order,
in addition to or, in the case of a misdemeanor, in lieu of any
other penalty authorized by law, that the defendant make
restitution to any victim of such offense.”              18 U.S.C.
§ 3663(a)(1)(A). Section 3663 also states:

     (b) The order may require that such defendant–
          (1) in the case of an offense resulting in damage to or
          loss or destruction of property of a victim of the
          offense . . .
               (B) . . . pay an amount equal to the greater of–
                    (i) the value of the property on the date of
                    the damage, loss, or destruction, or
                    (ii) the value of the property on the date of
                    sentencing,
                    less the value (as of the date the property
                    is returned) of any part of the property that
                    is returned.

Id. § 3663(b)(1)(B).

                                           9
rights.    While Powell acknowledges the holding of Glinsey, she

argues that because the restitution there was discretionary, not

mandatory, her case is distinguishable.        In other words, because

the restitution was mandatory here, the underlying assumption that

there is no difference between restitution and a fine is no longer

valid.    Thus, Powell contends the effect of a mandatory penalty

versus a discretionary penalty on a defendant’s willingness to

plead is substantial.        The government argues Powell’s case is

entirely covered by Glinsey and therefore the Rule 11 error was

harmless. That is, because the district court did warn Powell that

she faced fines up to $500,000, the omission of any mention of

restitution (which was ultimately over $300,000 lower than the

total possible fines) could not have affected Powell’s substantial

rights – her willingness to plead guilty.

      This Court in Glinsey seemed to base its decision on the

amount of financial exposure of which the defendant had notice, so

the   proper   course   to   avoid   infringement   of   the   defendant’s

substantial rights is for the district court to set liability no

higher than the defendant’s level of notice.        “Whether the amount

to be paid is classed as restitution or a fine ordinarily makes

little difference in its bite, and warning of one but not the other

does not require collateral relief.”         Glinsey, 209 F.3d at 395

(quoting United States v. Stumpf, 900 F.2d 842, 845 (5th Cir.

1990)).   It is the amount of financial liability, not the label


                                     10
“fine” or “restitution,” that affects a defendant’s substantial

rights.    See id. Thus, a defendant warned in the plea colloquy

about the possibility of having to pay $500,000 in fines, who

otherwise voluntarily pleads guilty, would not have her rights

substantially affected by being ordered to pay back mandatory

restitution in a much lower amount.            During her plea colloquy,

Powell was made well aware of the maximum amount of liability in

fines she faced, and her ordered restitution did not come close to

exceeding that amount.      Therefore, we find the district court’s

Rule 11 error was not harmful under the facts of this case.

     In doing so, we acknowledge that the restitution in Glinsey

was ordered pursuant to 18 U.S.C. § 3663, which authorizes courts

to impose discretionary restitution, and not pursuant to the MVRA,

which since its adoption as part of the Antiterrorism and Effective

Death Penalty Act in 1996 requires courts to impose mandatory

restitution for certain crimes.          18 U.S.C. § 3663A note; see also

United States v. Mancillas, 172 F.3d 341, 342 n.6 (5th Cir. 1999).

We also acknowledge that unlike 18 U.S.C. § 3663(a)(1)(B)(I), which

provides   that   “[t]he   court,   in    determining   whether   to   order

restitution under this section, shall consider . . . the financial

resources of the defendant, the financial needs and earning ability

of the defendant and the defendant’s dependents, and such other

factors as the court deems appropriate,” the MVRA requires the

district court to order the full amount of restitution, without


                                    11
regard for the defendant’s economic circumstances and ability to

pay.       United States v. Myers, 198 F.3d 160, 168-69 (5th Cir. 1999)

(explaining that under the MVRA the district court can only take a

defendant’s financial situation into account when setting the

schedule       of   payments,   not   when   deciding   whether   to   order

restitution); see also 18 U.S.C. § 3664(f)(1)(A) (“In each order of

restitution, the court shall order restitution to each victim in

the full amount of each victim's losses as determined by the court

and without consideration of the economic circumstances of the

defendant.”).5

       Because pleading guilty to certain crimes will result in an

order of mandatory restitution and because the district court

cannot consider the pleading defendant’s financial situation and

must order payback of the full amount, it is extremely critical

that the sentencing judge give as full a disclosure as possible at

the time of the plea colloquy regarding the court’s authority to

order mandatory restitution and the probable quantum thereof.             To

fully comply with Rule 11, the district judge should not only

advise the defendant as to the maximum amount of statutory fine

that could be levied as to each count, but also as to the fact

that, as to each count where the MVRA would apply, the court is

required to impose an amount of mandatory restitution to be paid to



       5
       Section 3664 outlines the proper procedure for issuing and
enforcing restitution ordered pursuant to the VWPA and the MVRA.

                                       12
the victim or victims which suffered loss as a result of the

defendant’s conduct.   So long as the total of (1) fines actually

assessed by the district court and (2) restitution actually awarded

to victims does not exceed the total dollar amount that the court

used in notifying the defendant of the consequences of his plea, we

believe the holding in Glinsey should apply.      But failure of the

district court to notify the defendant as to the quantum of

mandatory restitution under the MVRA could be harmful error when

the quantum of that restitution exceeds the liability amount used

by the court in notifying the defendant as to the consequences of

his guilty plea.

Whether the district court abused its discretion in denying
Powell’s motion to withdraw her guilty plea without giving reasons
and in not holding an evidentiary hearing.

     A district court’s denial of a motion to withdraw a guilty

plea is reviewed for abuse of discretion.          United States v.

Lampazianie, 251 F.3d 519, 523 (5th Cir. 2001) (citation omitted);

see also United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998)

(“[A] district court abuses its discretion if it bases its decision

on an error of law or a clearly erroneous assessment of the

evidence.”).   A defendant does not have an absolute right to

withdraw her guilty plea.    United States v. Brewster, 137 F.3d 853,

857 (5th Cir. 1998).        However, a district court may, in its

discretion, permit withdrawal before sentencing if the defendant

can show a “fair and just reason.”       Id. (citing former Fed. R.


                                  13
Crim. P. 32(e), now located at Rule 11(d)(2)).

     The defendant bears the burden of establishing a fair and just

reason for withdrawing his plea.               Id. at 858.            This Circuit

considers seven factors when deciding whether the defendant has met

this standard:      whether (1) the defendant asserted his innocence,

(2) withdrawal would cause the government to suffer prejudice,

(3) the defendant delayed in filing the motion, (4) withdrawal

would substantially inconvenience the court, (5) close assistance

of counsel was available, (6) the original plea was knowing and

voluntary, and (7) withdrawal would waste judicial resources.

United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).                   The

district court’s decision to permit or deny the motion is based on

the totality of the circumstances.              Brewster, 137 F.3d at 858

(citation omitted). And the district court is not required to make

findings as to each of the Carr factors.             Id. (citing United States

v. Badger, 925 F.2d 101, 104 (5th Cir. 1991)).

     Although      defendants    are   not    entitled      to   an    evidentiary

hearing,    a    hearing   is   required     “when    the   defendant      alleges

sufficient facts which, if proven, would justify relief.”                   United

States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984) (citation

omitted).       However, a district court’s decision not to hold an

evidentiary hearing is reviewed for abuse of discretion.                       See

United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983).

Plus, any errors made in failing to hold evidentiary hearings are

                                       14
subject to the harmless error standard.          Mergist, 738 F.2d at 648.

     Powell relies heavily on United States v. Pressley, 602 F.2d

709, 711 (5th Cir. 1979), to argue that the summary denial of her

motion to withdraw her guilty plea renders this Court unable to

determine    whether   the   district     court     exercised    appropriate

discretion and requires remand so the district court can state its

reasons.    Alternatively, Powell claims the district court abused

its discretion by not holding an evidentiary hearing because

Powell’s motion was very detailed and not conclusory as to how each

Carr factor weighed in her favor.          The government responds that

the district court implicitly adopted the detailed reasons for

denial set forth in its response to Powell’s motion.               In other

words, as it was not required to make specific findings, the

district court evaluated the Carr factors and found they weighed

against withdrawal of Powell’s plea.            The government also argues

that no evidentiary hearing was warranted because Powell did not

present    any   factual   issues   in    her    motion   that   would   have

necessitated an evidentiary hearing.

     We find Powell’s case easily distinguishable from Pressley.

In Pressley, which was decided prior to Carr, this Court remanded

where the district court seemed inclined initially to grant but

then simply denied the motion to withdraw Pressley’s guilty plea

after a psychiatric evaluation found him competent at the time of

his plea.    602 F.2d at 710.       In doing so, we noted specifically


                                     15
that factors (such as those later outlined in Carr) should be

considered by the district court when deciding a motion to withdraw

a guilty plea.        Id. at 711.    There, however, the district court

merely denied the motion after it satisfied itself that Pressley

was competent to understand the plea proceedings.            Id.   There is no

indication that Pressley or the prosecution had put forth any

arguments   as   to    Carr-like    factors   for   the   district    court   to

consider.   Here, the district court determined in its discretion,

based on the totality of the Carr factors as fully briefed by both

Powell and the government, that Powell did not meet her burden of

establishing a fair and just reason to justify withdrawal.               Under

Brewster, the district court could have made but was not required

to make specific findings in denying Powell’s motion.                Therefore,

the district court did not abuse its discretion in denying Powell’s

motion to withdraw her guilty plea without giving reasons.

     As for the district court’s refusal to hold an evidentiary

hearing, while Powell’s motion did allege numerous reasons why her

plea should be withdrawn, first, even if they were all true the

totality of the Carr factors did not clearly tip in Powell’s favor

to justify relief.      Thus, there is no error of law.        Also, we find

no indication that the district court made any clear errors in

assessing the evidence pertaining to Powell’s plea. Therefore, the

district court did not abuse its discretion in denying Powell an

evidentiary hearing.


                                      16
Whether the case should be remanded for correction of Powell’s
judgment under Rule 36 because it does not reflect dismissal of the
health care fraud charge.

     Fed. R. Crim. P. 36 allows a court “at any time” to correct

clerical errors in the judgment “[a]fter giving any notice it

considers appropriate.”    Both Powell and the government agree that

this Court has reviewed clerical errors in the judgment for the

first time on appeal and properly remanded for correction of those

errors. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir.

2001).

     Here, there is no question that the government, pursuant to

the plea agreement, moved at Powell’s sentencing to dismiss count

three of the indictment.        The district court duly granted the

motion. However, the judgment does not reflect that such count has

been dismissed.    Therefore,     a   simple   remand    to   correct   such

clerical error is proper.

                               CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court erred in not informing Powell

of its authority to impose mandatory restitution; however, such

error was harmless.   We also conclude the district court did not

abuse its   discretion    by   deciding   to   deny   Powell’s   motion   to

withdraw her plea without stating reasons, and by deciding not to

hold an evidentiary hearing on such motion.           Therefore, we AFFIRM


                                   17
the decision of the district court below; but we also REMAND to the

district court with an instruction to correct the judgment to

reflect dismissal of count three against Powell.

AFFIRMED and REMANDED with instruction.




G:\opin\02-21211.opn.wpd        18
