                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4348
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Mary K. Edelmann,                       *
                                        *    [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: May 16, 2006
                                Filed: August 22, 2006
                                 ___________

Before LOKEN, Chief Judge, MELLOY, and COLLOTON, Circuit Judges.
                              ___________

PER CURIAM.

       Mary K. Edelmann pled guilty to one count of wire fraud, in violation of 18
U.S.C. § 1343, but before she was sentenced, she moved to withdraw her plea. The
district court1 denied her motion, and then sentenced her to 37 months’ imprisonment
and ordered her to pay $25,000 in restitution. She appeals, and we affirm.




      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
       An indictment returned on October 6, 2004, alleged that Edelmann had
committed wire fraud by using someone else’s personal identity information to open
a credit card account, and then using that new line of credit to transfer $25,000 into
an account bearing her name. The indictment also alleged that she had committed this
offense while on pre-trial release, in violation of 18 U.S.C. § 3147(1), following a
prior indictment for mail fraud and wire fraud.

       On November 9, 2004, Edelmann entered into a plea agreement pursuant to
which, among other things, she agreed to plead guilty to wire fraud in the instant case,
agreed to consolidate the two criminal cases for sentencing, stipulated that her
sentences in two cases would run consecutively, promised to drop complaints with the
Arkansas bar that she had initiated against a former attorney, stipulated to an offense
level under the United States Sentencing Guidelines, and waived her right to appeal
her conviction. The government agreed to dismiss the count alleging that her crime
was committed while on release. At a change-of-plea hearing held that same day, the
district court accepted Edelmann’s plea of guilty to the charge of wire fraud, and
dismissed the second count of the indictment.

       The two criminal cases were consolidated and set for sentencing before the
judge to whom the first case was assigned. But before the sentencing hearing, the
attorney who had represented Edelmann during her plea negotiations moved to
withdraw, and after the motion was granted, the sentencing was continued until May
27, 2005, so Edelmann’s new attorney could familiarize himself with the case. On
May 25, Edelmann moved to withdraw her plea, alleging that her judgment had been
impaired by medication, and that her attorney had labored under a conflict of interest
at the time of her plea hearing.

      The district court held several hearings to consider Edelmann’s motion.
Edelmann presented evidence that she had fallen from a horse and started taking
prescription pain medication 10 days before she pled guilty to wire fraud, and that she

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had been treated by a psychiatrist who prescribed Adderall and Lexapro. Edelmann
testified that she had little recollection of the proceedings. Edelmann’s niece also
testified that throughout the evening before the plea hearing, Edelmann was behaving
strangely. The attorney who represented Edelmann at the change-of-plea hearing,
Jerome Kearney, testified that he had discussed the plea agreement with Edelmann,
and had no doubt about Edelmann’s competency or understanding of the plea
proceedings at the time of the plea hearing.

       After the hearing, the district court denied Edelmann’s motion to withdraw the
plea. The court credited Kearney’s testimony that Edelmann had been competent, and
included its own observation that at the time of the plea hearing, Edelmann appeared
“alert and understood what was going on,” and a finding that she was “fully herself.”
(Order, R. Doc. 72, at 3-4). The court also recalled that Edelmann had been
questioned about her prescription medication, but stated that her medication “did not
affect her thinking.”2 The court concluded that she had not shown a credible reason
why she should be allowed to withdraw her plea.

      A presentence investigation report (“PSR”) was prepared. As specified by the
plea agreement, the PSR applied the 2002 sentencing guidelines and recommended
a base offense level of six, see USSG § 2B1.1(a), a four-level increase for the loss


      2
         In a pro se letter filed July 24, 2006, Edelmann disputes the accuracy of the
transcript reflecting her statement at the change-of-plea hearing that, “I’m taking some
prescription medication, but it’s not affecting my thinking.” (Change-of-Plea Hr’g Tr.
at 3). It is not our practice to consider pro se pleadings filed by parties represented by
counsel, United States v. Clark, 409 F.3d 1039, 1041 n.2 (8th Cir. 2005), and, in any
event, Edelmann has not invoked the procedures available to have a transcript
corrected by the district court when a party believes that it is inaccurate. See Fed. R.
App. P. 10(e)(1). We note, moreover, that a transcript of a hearing on Edelmann’s
motion to withdraw her guilty plea, as to which Edelmann has raised no objection,
reflects that she admitted stating at the change-of-plea hearing that the medication was
not affecting her thinking. (Tr. of Motions Hearing, Oct. 13, 2005, at 22).

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amount of $25,000, see id. § 2B1.1(b)(1)(C), and a two-level increase for using a
means of identification to obtain another means of identification. See id.
§ 2B1.1(b)(9)(C)(i). The PSR also recommended an adjustment for obstruction of
justice because Edelmann had absconded while on pre-trial release. See id. § 3C1.1.
Because Edelmann had attempted to withdraw her plea, the PSR did not recommend
an adjustment for acceptance of responsibility. Based on a total offense level of 14
and a criminal history category of VI, the PSR calculated the applicable advisory
guideline range to be 37 to 46 months’ imprisonment.

       At sentencing, the district court overruled Edelmann’s objection to the specific
offense characteristic for using a means of identification to acquire another means of
identification and her objection to the calculation of her criminal history, but sustained
her objection to the adjustment for obstruction of justice. These rulings resulted in a
total offense level of 12 and a guideline range of 30 to 37 months. Edelmann argued
that since she had already received a 92-month sentence for the fraud case with which
the instant case was consolidated, she already had been punished sufficiently for both
offenses, and that she should therefore receive either a concurrent sentence in the
instant case, or a shorter consecutive sentence. The court rejected her arguments and
imposed a consecutive sentence of 37 months’ imprisonment.

        Edelmann argues on appeal that the district court abused its discretion in
denying her motion to withdraw her plea. According to Edelmann, her recent use of
prescription medications rendered her plea “unknowing and unintelligent.” In
addition, she contends that her attorney was hindered by a conflict of interest, because
as part of her plea agreement, she agreed to dismiss her complaints against a former
attorney, Darrell Brown, and her new attorney might have had a self-interested desire
for her to dismiss the complaints. She also argues that her attorney was ineffective
because he failed to advise her that the offenses in her two cases would have been
“grouped” under the sentencing guidelines, see USSG § 3D1.1, and that her sentences
in the two cases would not have been consecutive, as stipulated in the plea agreement.

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        We see no abuse of discretion in the district court’s conclusion that none of
these contentions is a “fair and just reason” to permit Edelmann to withdraw her plea.
See Fed. R. Crim. P. 11(d)(2)(B). “A guilty plea is a solemn act not to be set aside
lightly,” and a defendant bears the burden of demonstrating that she should be
permitted to withdraw her plea. United States v. Embrey, 250 F.3d 1181, 1183 (8th
Cir. 2001). Edelmann relied solely on her own testimony and the testimony of her
niece to establish that her medications affected her understanding of the proceedings,
but the district court found that her assertions were “not credible.” (Order, R. Doc.
72, at 2). There was contrary evidence, moreover, from which the district court
reasonably could conclude that Edelmann was competent to plead guilty, not the least
of which was the district court’s own first-hand opportunity to examine Edelmann and
inquire about her state of mind before it accepted her plea. Attorney Kearney also
testified that he had spoken with Edelmann at length and believed she was competent,
and the district court credited his testimony. We give deference to the district court’s
credibility determinations, United States v. Picone, 773 F.2d 224, 226 (8th Cir. 1985)
(per curiam), and we conclude that the district court’s conclusion that Edelmann was
competent despite her medications was well supported by the record and not clearly
erroneous.

       Edelmann’s argument that her attorney labored under a conflict of interest is not
supported by the record. There is no allegation that Darrell Brown, the attorney who
arguably benefitted from the plea agreement, participated in any way in the plea
negotiations, or that attorney Kearney had any personal stake in the outcome of her
plea negotiations. Edelmann’s claim that attorney Kearney was ineffective should be
raised, if at all, in a motion for a writ of habeas corpus under 28 U.S.C. § 2255.
Embrey, 250 F.3d at 1184.

      Edelmann also challenges her sentence, arguing that the district court
erroneously calculated the applicable guideline range under the advisory guidelines.
According to Edelmann, the district court erred in applying the “means of

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identification” enhancement under USSG § 2B1.1(b)(9)(C)(i) (2002), and in
calculating her criminal history. We review findings of fact underlying the district
court’s calculation of the guidelines for clear error, and we review the court’s
application of the guidelines to the facts de novo. United States v. Scott, 448 F.3d
1040, 1043 (8th Cir. 2006).

       There is no merit to Edelmann’s contention that the district court erred in
applying an enhancement for using a means of identification to obtain another means
of identification. Edelmann agreed to the application of this specific offense
characteristic in her plea agreement, and she may not now challenge receiving
precisely “what [s]he bargained for.” United States v. Nguyen, 46 F.3d 781, 783 (8th
Cir. 1995). Even if she had not stipulated to the enhancement, the application notes
to the guidelines clearly encompass a situation like Edelmann’s, where another
individual’s name and Social Security number are unlawfully used to obtain credit.
USSG § 2B1.1, comment. (n.7(C)(ii)(I)); see also United States v. Williams, 355 F.3d
893, 899-900 (6th Cir. 2003). Edelmann argues that by adding her name to the
fraudulently opened account, she “severed” any connection to the victim, but we have
previously rejected this argument, reasoning that the use of a name other than the
victim’s on an unlawfully obtained account does not mitigate the harm caused by the
use of “someone’s identifying information to establish new credit.” United States v.
Oates, 427 F.3d 1086, 1090 (8th Cir. 2005).

       Edelmann also argues that her criminal history was miscalculated because three
of her prior convictions, for which she received a total of nine criminal history points,
were for related offenses not separated by intervening arrests. She argues that the
sentences for these convictions should have been treated as one sentence, because the
cases were related, see USSG § 4A1.2(a)(2), and that only three criminal history
points should have been assessed.




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        At sentencing, the district court considered “the FBI rap sheet, the old PSRs,
and state court documents,” and found that those records showed that each of the three
offenses was separated by an intervening arrest. Consequently, the court determined
that the cases were not “related,” and that the sentences should be counted separately.
See USSG § 4A1.2(a)(2) & comment. (n.3). Edelmann argues that the district court
failed to make a finding about the contested arrest dates, but the court did articulate
its belief that the cited documents “verify” that she had intervening arrests. (S. Tr. at
7). Although the presentence report was not evidence, the district court cited the FBI
criminal history printout, state court documents and prior presentence reports to
support its findings. Edelmann did not present any evidence, other than her memory,
to counter those documents. The district court did not clearly err in concluding that
the offenses listed in paragraphs 27, 28, and 30 of the presentence report were
separated by intervening arrests, and that the prior sentences were properly counted
separately in calculating the criminal history score.

      The judgment of the district court is affirmed.
                     ______________________________




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