Sealed Appellee v. Sealed Appellant

MODIFIED
United States Court of Appeals
for the Fifth Circuit

No. 20-10272
Summary Calendar

Sealed Appellee,

Plaintiff—Appellee,

versus

Sealed Appellant,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-641-1

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Appellant pleaded guilty, pursuant to a plea agreement, to conspiracy
to commit wire fraud in violation of 18 U.S.C. §§ 1343 & 1349, in connection
with a scheme involving the use of phone calls, emails, and wire transfers to

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 9, 2020

Lyle W. Cayce
Clerk

No. 20-10272
2
defraud the victim of hundreds of thousands of dollars. As part of his plea
agreement, Appellant generally waived his right to appeal his conviction and
sentence with the exception of, inter alia, a claim of ineffective assistance of
counsel. At sentencing, per the request of Appellant and his counsel, the
Government withdrew the substantial assistance motion it had filed under
U.S.S.G. § 5K1.1. Appellant was sentenced to 175 months in prison, and he
now appeals his conviction and sentence.
Appellant first argues his plea was not supported by a sufficient factual
basis. Plain error review applies because Appellant did not object to the
alleged error in the district court. See United States v. Trejo, 610 F.3d 308,
313 (5th Cir. 2010). Under this standard, Appellant must show a clear or
obvious error that affects his substantial rights. Id. at 319. If he meets his
burden, this court should remedy the error only if it “seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” Id.
(internal quotation marks and citation omitted). The essential elements of a
wire fraud conspiracy conviction under §§ 1343 & 1349 include, inter alia, the
use of interstate wire communications in furtherance of the scheme.
See United States v. Kuhrt, 788 F.3d 403, 413-14 (5th Cir. 2015); United States
v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999).
Appellant argues the factual basis is insufficient because the record
does not include specific facts showing that any of the wire communications
sent in furtherance of the scheme crossed state lines. The Government
argues it is not required to show an actual interstate wire communication and
that the factual basis is sufficient if it shows it was reasonably foreseeable that
the scheme could have involved the use of interstate wires. This argument is
without merit, as it is well-established in this circuit that proof of an interstate
transmission is required for a wire fraud conspiracy conviction. See Izydore,
167 F.3d at 219; Smith v. Ayres, 845 F.2d 1360, 1366 (5th Cir. 1988).
However, Count One of the indictment, which Appellant pleaded guilty to,

No. 20-10272
3
did state that many of the emails involved in the scheme traveled in interstate
commerce. Thus, Appellant has not shown any clear or obvious error. See
Trejo, 610 F.3d at 319. Even if he had done so, he has not met his burden of
demonstrating the alleged error affected his substantial rights. See United
States v. Nepal, 894 F.3d 204, 212 (5th Cir. 2018); United States v. London,
568 F.3d 553, 560 (5th Cir. 2009).
Appellant next argues the district court erred at sentencing by failing
to conduct a hearing under Faretta v. California, 422 U.S. 806 (1975), after
Appellant requested that the § 5K1.1 motion be withdrawn. The
Government asserts the instant argument is barred by the appeal waiver in
Appellant’s plea agreement. We need not resolve the waiver dispute because
Appellant’s claim is resolvable on the merits. See United States v. Story, 439
F.3d 226, 230 (5th Cir. 2006). Review is for plain error only, as Appellant
did not preserve his challenge. See United States v. Virgil, 444 F.3d 447, 456
(5th Cir. 2006); United States v. Phipps, 319 F.3d 177, 189 n.14 (5th Cir. 2003).
Appellant’s argument presupposes that, by addressing the district
court about his concerns with the § 5K1.1 motion, he was effectively allowed
to proceed pro se. His contention is without basis in fact. At sentencing,
after the district court asked him if he had any questions about the
presentence report, Appellant stated he wanted the Government to withdraw
its § 5K1.1 motion. The district court allowed Appellant to speak with his
attorney off the record, and Appellant’s attorney then stated that, pursuant
to Appellant’s request, he had asked the Government to withdraw the motion
and that the Government had agreed to withdraw it. Appellant has not
offered any authority in support of his assertion that he engaged in self-
representation by addressing the district court and answering its questions,
or that the district court erred by allowing Appellant’s counsel to follow his
client’s instructions. Accordingly, he has not shown any clear or obvious
error. See Trejo, 610 F.3d at 319.

No. 20-10272
4
Finally, for the first time on appeal, Appellant argues his counsel at
sentencing was ineffective because he did not object to Appellant’s
participation in the sentencing proceeding and did not object to the
withdrawal of the § 5K1.1 motion. Generally, an ineffective assistance of
counsel claim cannot be resolved on direct appeal if it was not first raised in
the district court since “no opportunity existed to develop the record on the
merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006) (internal quotation marks and citation omitted). This is not one
of those “rare cases” where the record allows this court to fairly evaluate the
merits of the claim. See United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992). We therefore decline to consider Appellant’s ineffective assistance of
counsel claim without prejudice to his right to seek collateral review.
The district court’s judgment is AFFIRMED.
1

1
On October 13, 2020, four days after our original opinion was issued, Appellant
filed an unopposed motion seeking a limited remand for the purpose of correcting a clerical
error in the amount of restitution he had been ordered to pay. That motion is GRANTED.