                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4996



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIAM ADRIAN DUNGEE,

                                            Defendant - Appellant.



                              No. 05-5080



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


MONTA OLANDER JORDAN,

                                            Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-05-17)


Submitted:   April 11, 2007                 Decided:   May 31, 2007


Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Acting Federal Public Defender, Frances H.
Pratt, Research and Writing Attorney, Alexandria, Virginia; Steven
P. Hanna, Richmond, Virginia, for Appellants. Chuck Rosenberg,
United States Attorney, Sara E. Flannery, Assistant United States
Attorney, Maciek J. Kepka, Third Year Intern, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            William Adrian Dungee and Monta Olander Jordan both pled

guilty to assault resulting in serious bodily injury in violation

of 18 U.S.C. §§ 113(b)(6), 2 (2000), a charge that resulted from

their participation, with another defendant, in an attack on a

fellow     inmate    at    the    Federal          Correctional     Institution        at

Petersburg, Virginia.         The official investigation of the incident

determined that Clarence Jefferson, who was an orderly in the

visiting room, had agreed to retrieve a package of marijuana left

in the visitors’ ladies’ room for another inmate, Chatyn Byrd. The

marijuana was found first by prison staff and replaced with a dummy

package.     This led Byrd to believe that Jefferson had stolen the

marijuana,    which      resulted     in    the    attack   on    Jefferson     in    the

exercise yard.       Prison authorities searched the yard immediately

following the attack and found Jefferson’s tooth and slivers from

the crutch used to beat him, but no other weapons.                  All the inmates

in   the   area   were    segregated        and    questioned,    first    by   prison

investigators, and soon afterward by an agent from the Federal

Bureau of Investigation (FBI).

            Dungee    seeks      to   appeal        the   restitution     order      that

requires him to pay $1611.86 to the Bureau of Prisons (BOP) for

medical expenses incurred on behalf of Jefferson pursuant to the

Mandatory Victims Restitution Act (MVRA), 18 U.S.C.A. § 3663A (West

2000 & Supp. 2006), and 18 U.S.C. § 3664 (2000).                     The government


                                           - 3 -
has moved to dismiss Dungee’s appeal based on the waiver of appeal

rights in his plea agreement.          As explained below, we deny the

motion to dismiss and affirm the restitution order. Jordan appeals

the district court’s denial of his motion to withdraw his guilty

plea and asserts additional claims in his pro se supplemental

brief.   We conclude that the district court did not abuse its

discretion in denying Jordan’s motion to withdraw his guilty plea

and that his pro se claims are without merit, and we affirm his

conviction and sentence.

           Because the waiver provision in Dungee’s plea agreement

made no explicit reference to restitution, and the record of the

guilty plea colloquy does not reveal any discussion of a waiver of

appellate rights concerning restitution, we will consider Dungee’s

challenge to the restitution order on the merits.              Dungee argues

that the district court erred (1) in ordering him to pay anything

more   than   a   nominal   amount    of     restitution,    see   18   U.S.C.

§ 3664(f)(3)(B); (2) in awarding restitution to the BOP because it

is not a victim as the term is defined in § 3663A; and (3) in

failing to make findings concerning his financial circumstances

before   determining    the   payment        schedule   as   required   under

§ 3664(f)(2).

           Dungee did not raise these objections in the district

court.   Therefore his claims are reviewed for plain error.               See

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).             Under


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the plain error standard, Dungee must show that: (1) there was

error; (2) the error was plain; and (3) the error affected his

substantial rights.        United States v. Olano, 507 U.S. 725, 732-34

(1993).    Even when these conditions are satisfied, this court may

exercise its discretion to notice the error only if the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.”        Id. at 736 (internal quotation marks

omitted).

            Dungee first contends that the BOP is not a “victim”

within the meaning of § 3663A.         Under the MVRA, the district court

may order a defendant to pay restitution to any victim of an

offense of conviction.         See 18 U.S.C.A. § 3663A(a)(1); United

States v. Newsome, 322 F.3d 328, 340 (4th Cir. 2003) (noting that

district    court    has   authority    to    order   restitution    for     “all

identifiable victims”). An individual is a victim under § 3663A if

he is “a person directly or proximately harmed as a result of the

commission of an offense for which restitution may be ordered

. . . .”     § 3663A(a)(2).      This includes third parties otherwise

responsible for the costs of assisting a principal victim.              United

States v. Johnson, 400 F.3d 187, 200-01 (4th Cir.) (citing United

States v. Cliatt, 338 F.3d 1089, 1091 (9th Cir. 2003)), cert.

denied, 126 S. Ct. 134 (2005).         Dungee attempts to distinguish his

case from Johnson on the ground that it involved payment to a

private    agency,   whereas   the     BOP   was   required   to   provide    for


                                     - 5 -
Jefferson’s medical care.        We cannot agree.      The medical expenses

incurred by the BOP for Jefferson’s care clearly fall within the

scope   of   expenses   incurred    by     third    parties    otherwise   held

responsible for the costs of recovery.             Johnson, 400 F.3d at 200;

see also 18 U.S.C. § 3664(j)(1) (providing that restitution is

applicable to those entities that “provide[] or [are] obligated to

provide the compensation” to make a victim whole).              Therefore, we

conclude that the district court did not plainly err in ordering

Dungee to make restitution to the BOP for Jefferson’s medical care.

             Dungee also asserts that the district court failed to

make findings concerning his ability to pay, as required under

§ 3664.      The MVRA provides that the restitution amount to each

victim shall be “in the full amount of each victim’s losses as

determined by the court and without consideration of the economic

circumstances of the defendant.”         18 U.S.C. § 3664(f)(1)(A).        The

MVRA    further   requires   that    the    court,     after   ordering    full

restitution, “specify in the restitution order the manner in which,

and the schedule according to which, the restitution is to be

paid,” taking into account “(A) the financial resources and other

assets of the defendant, including whether any of these assets are

jointly controlled; (B) projected earnings and other income of the

defendant; and (C) any financial obligations of the defendant[,]

including obligations to dependents.” 18 U.S.C. § 3664(f)(2). The

district     court   therefore    was    required     to   consider   Dungee’s


                                    - 6 -
financial    condition   under   the   MVRA   in   fashioning   a   payment

schedule.

            Dungee is correct that the district court erred in

failing to make the required findings linking the schedule of

restitution payments to his financial condition.            Nor did the

district court explicitly adopt the presentence report, which

discussed Dungee’s financial condition and inability to pay a fine.

See United States v. Karam, 201 F.3d 320, 330 (4th Cir. 2000)

(adoption of presentence report that contained sufficient facts to

support restitution order avoided plain error).          However, we are

not convinced that Dungee has demonstrated that the error affected

his substantial rights.      The amount of restitution ordered was

nominal, see § 3664(f)(3)(B), even though the district court did

not specifically identify the $25 monthly payments as a nominal

sum.   Moreover, Dungee has not shown that a different amount or

schedule of payments would have resulted if the district court had

articulated findings regarding his financial condition. See United

States v. Bollin, 264 F.3d 391, 420 (4th Cir. 2001).       Therefore, we

will uphold the restitution order as not plainly erroneous.

            Jordan pled guilty on July 19, 2005, the day before he

was scheduled to go to trial, and also the day the government filed

a superseding indictment which charged him with influencing a

prospective witness to provide false testimony and bribery of a

witness.    The district court offered Jordan the option of taking a


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day to think over his change of plea, but Jordan declined the

offer.   Jordan indicated that he was ready to enter his plea and to

stipulate that the government could prove that he had obstructed

justice.*    In his interview with the probation officer following

his guilty plea, Jordan stated that he took a knife away from

Jefferson during a fight between Jefferson and Dungee and hid the

knife in grass in the recreation yard.              He admitted hitting

Jefferson a few times because, he said, he was upset that Jefferson

had involved him in his argument with Dungee.

            Three months later, Jordan moved to withdraw his guilty

plea, claiming that his plea had not been knowing and voluntary

because he was hurried and under pressure when he entered it, and

because the district court failed to ask whether he understood that

he was waiving his right to collaterally attack his sentence.

Jordan also asserted his legal innocence, claiming that he had

acted in self-defense after Jefferson pulled a knife on him, and

that his claim was supported by a knife prison officials found

buried in the dirt, several weeks after the assault, in the same

area of the prison yard.         He complained that he had not been

provided with copies of the prison interviews of inmates Veney,

Goodman,    and   Robertson,   who   allegedly   witnessed   the     assault,




     *
      The evidence of obstruction consisted            of    tapes    of   two
recorded phone calls Jordan made from prison.

                                     - 8 -
although he did receive summaries of the FBI interviews of the same

inmates conducted shortly after the attack.

           At a hearing on the motion, a review of Jordan’s plea

agreement established that Jordan had not waived his right to

collaterally attack his conviction or sentence.             The government

also   questioned   Jordan   about   the    telephone    call   recorded   on

June 16, 2005, in which Jordan told a third party that “Munch”

(Dungee) would be called as a witness and that Dungee should say

that the victim had “a tool,” that is, a knife.          The district court

denied Jordan’s motion to withdraw his guilty plea, finding that

Jordan had not met his burden of showing a fair and just reason for

withdrawal under the six-factor test set out in United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991).               The court found no

credible evidence of Jordan’s legal innocence or that Jordan’s

guilty plea was not knowing and voluntary, that Jordan had been

appropriately advised at the Fed. R. Crim. P. 11 hearing about the

waiver of appellate rights in his plea agreement, and that the

three-month delay between entry of the plea and the motion to

withdraw was significant.

           We review the denial of Jordan’s motion to withdraw his

guilty plea for abuse of discretion.          United States v. Ubakanma,

215 F.3d 421, 424 (4th Cir. 2000).         The defendant bears the burden

of showing a “fair and just reason” for the withdrawal of his

guilty plea.   Fed. R. Crim. P. 11(d)(2)(B).        “[A] ‘fair and just’


                                 - 9 -
reason . . . is one that essentially challenges . . . the fairness

of the Rule 11 proceeding . . . .”       United States v. Lambey, 974

F.2d 1389, 1394 (4th Cir. 1992) (en banc).       Courts consider six

factors in determining whether to permit the withdrawal of a guilty

plea:

     (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.

Ubakanma, 215 F.3d at 424 (citing Moore, 931 F.2d at 248) (footnote

omitted).    An appropriately conducted Rule 11 proceeding, however,

“raise[s] a strong presumption that the plea is final and binding.”

Lambey, 974 F.2d at 1394.    Our review of the record discloses that

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

motion.

            In his pro se supplemental brief, Jordan asserts that the

government failed to disclose to him in discovery the summaries of

interviews conducted by prison authorities of Goodman, Veney, and

Robertson.    Jordan states that they would have been the principal

government witnesses against him had he gone to trial, and that the

interviews conducted by prison authorities would have provided him

with impeachment evidence to support his self-defense claim.




                                - 10 -
           When Jordan raised this issue at the hearing on his

motion to withdraw his guilty plea, his attorney informed the court

that the government had learned that interviews of Goodman, Veney,

and Robertson by prison authorities did not exist.                      Jordan has

attached to his pro se brief a letter from the BOP, apparently in

response to his post-sentencing request for interviews of the three

inmates under the Freedom of Information Act, which indicates that

three pages corresponding to his request had been located, but

would be withheld under 5 U.S.C. § 552(b)(6), (b)(7)(c), and

(b)(7)(F) (2000).      These sections exempt from disclosure certain

materials to avoid an unwarranted invasion of personal privacy or

the endangerment of an individual’s life or physical safety.

           Even if interview forms of some sort exist for the three

inmates, as it appears they do, Jordan has not demonstrated that

they actually contain any exculpatory or impeachment information

that would have been helpful to his defense.               This is particularly

true in light of the fact that he was provided with summaries of

the FBI agent’s interviews of the same inmates which were done a

short   time   after   prison    authorities       conducted      their    initial

interviews.     Therefore,      we   find     no   basis    for   his     claim   of

prosecutorial misconduct.

           Moreover, Jordan’s arguments going to the factual basis

for his conviction are also unavailing because his guilty plea to

the charges constitutes an admission to the material elements of


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the crime.     A knowing and voluntary guilty plea “conclusively

establishes the elements of the offense and the material facts

necessary to support the conviction,” and “constitutes a waiver of

all nonjurisdictional defects,” such as claims of actual innocence.

United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993); see

also Tollett v. Henderson, 411 U.S. 258, 267 (1973).

            Also in his pro se brief, Jordan claims error in the

district court’s decision not to award him an adjustment for

acceptance of responsibility.        The sentencing transcript is not

contained in the materials submitted on appeal.        However, at the

Rule   11   hearing,    Jordan   admitted   conduct   that   constituted

obstruction of justice.     If, as Jordan alleges, he did not receive

an   adjustment   for   acceptance   of   responsibility,    the   court’s

decision did not amount to clear error.

            We therefore deny the government’s motion to dismiss

Dungee’s appeal and affirm the judgment in Dungee’s case, including

the restitution order.     We affirm the district court’s decision to

deny Jordan’s motion to withdraw his guilty plea, and affirm

Jordan’s conviction and sentence.         We grant Jordan’s motion for

leave to file a pro se supplemental brief, but deny his motions for

new counsel and for leave to proceed pro se.      We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                                   AFFIRMED



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