UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4605

JACKIE NATHANIEL JACKSON, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4606

JACKIE NATHANIEL JACKSON, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-93-252, CR-95-146)

Submitted: March 24, 1998

Decided: June 19, 1998

Before WILKINS, NIEMEYER, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

John Stuart Bruce, Acting Federal Public Defender, Greensboro,
North Carolina, for Appellant. Mark T. Calloway, United States
Attorney, Robert J. Higdon, Jr., Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In 1994, without benefit of a plea agreement, Jackie Nathaniel
Jackson, Jr., pled guilty to conspiracy to possess with intent to distrib-
ute and to distribute cocaine base, 21 U.S.C. § 846 (1994), and to aid-
ing and abetting the possession of cocaine base with intent to
distribute, 21 U.S.C. § 841(a)(1) (1994), 18 U.S.C. § 2 (1994). He
was released on bond after his guilty plea, but failed to appear for sen-
tencing. In 1995, authorities learned where Jackson was living and he
was arrested after a high-speed chase. He then entered into a plea
agreement and pled guilty to failure to appear, 18 U.S.C.A.
§ 3146(a)(1) (West Supp. 1997). Jackson was sentenced to a term of
200 months imprisonment for the drug offenses and to a consecutive
62-month term for failure to appear. He appeals his sentences and the
district court's denial of his motion to withdraw his guilty plea to the
drug offenses. Jackson seeks leave to file a pro se supplemental brief
challenging his sentence. We grant leave to file the supplemental brief
and affirm.

Just before he was sentenced, Jackson moved to withdraw his
guilty plea to the crack offenses. He alleged that his plea was not
knowing and voluntary because he had relied on his first attorney's
assurance that he would receive a sentence of ten years or less. In
response, the government submitted an affidavit from the attorney,

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who denied making such a promise. The attorney stated that he told
Jackson that he expected the guideline range to be 135 to 168 months
imprisonment, but that because of a prior drug conviction Jackson
was exposed to a sentence of twenty years to life. He also told Jack-
son that the government had agreed informally to withdraw the infor-
mation it had previously filed under 21 U.S.C. § 851 (1994) for the
sentence enhancement in return for his plea and to allow him to coop-
erate in the hope of receiving a substantial assistance departure under
USSG § 5K1.1, p.s.* or Fed. R. Crim. P. 35. The attorney further
stated that the case agent did not interview Jackson, but asked him to
write down the information he could offer. Jackson did so in a letter
to his attorney. He then absconded.

Before sentencing, the district court may permit a defendant to
withdraw his guilty plea if he shows a "fair and just reason" for with-
drawal. See Fed. R. Crim. P. 32(e). The district court denied Jack-
son's withdrawal motion, finding that none of the six factors to be
considered weighed in favor of allowing withdrawal of the guilty
plea. The factors are: (1) evidence that the plea was not knowing and
voluntary; (2) a credible assertion of innocence; (3) the length of
time between entry of the plea and the motion to withdraw;
(4) whether the defendant has had the assistance of competent coun-
sel; (5) whether withdrawal will prejudice the government; or
(6) prejudice the court. See United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991).

On appeal, Jackson argues first that his plea was not voluntary
because the cooperation provision of his plea agreement was not dis-
closed to the district court. This argument fails for several reasons.
When Jackson pled guilty to the drug charges, the government volun-
teered that it had agreed to withdraw the § 851 notice previously filed,
but Jackson informed the district court that he did not have a plea
agreement. Jackson cannot now claim a violation of Fed. R. Crim. P.
11(e)(2), which requires disclosure of a plea agreement. Moreover,
the district court informed Jackson that, if he was attempting to coop-
erate with the government, the government would have full discretion
to decide whether to move for a substantial assistance departure.
_________________________________________________________________

*U.S. Sentencing Guidelines Manual (1995).

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Second, Jackson contends that the government breached the sup-
posed plea agreement by not debriefing him before sentencing and
that this constituted a fair and just reason for withdrawing his plea.
Because this argument was not made in the district court, we review
it for plain error only. See United States v. Olano, 507 U.S. 725,
732-35 (1993) (appeals court may correct forfeited error if it is obvi-
ous, defendant has shown that it affected his substantial rights, and it
seriously affects fairness, integrity, or public reputation of judicial
proceedings). Jackson relies on United States v. Beltran-Ortiz, 91
F.3d 665 (4th Cir. 1996), and United States v. Ringling, 988 F.2d 504
(4th Cir. 1993), both cases in which the defendant had a formal plea
agreement. In Beltran-Ortiz, the government's subsequent failure to
debrief the defendant, as promised in the plea agreement, prejudiced
his efforts to qualify for a sentence under USSG§ 5C1.2, the safety
valve provision. In Ringling, the government could not keep its prom-
ise to inform the district court of the nature of the defendant's cooper-
ation because it failed to debrief him before sentencing. In Jackson's
case, by contrast, there was no written plea agreement and, even if
Jackson relied on a government promise to debrief him, his failure to
appear for sentencing was a breach his own implied promise to appear
for sentencing which relieved the government of any obligation it had
undertaken. See United States v. David, 58 F.3d 113, 115 (4th Cir.
1995).

Next, Jackson claims that the district court abused its discretion
when it denied his motion for an expert witness to examine the drugs
seized from his co-defendant. See United States v. Nichols, 21 F.3d
1016, 1017 (4th Cir. 1994). At sentencing, the government's expert
witness, a chemist, testified that she had determined that the substance
was cocaine base and that "crack" was simply the common name for
cocaine base. However, she could not say whether the substance in its
original form was lumpy or rock-like. Jackson asked to have the sub-
stance retested, arguing that the government had failed to prove that
the substance seized was crack. The district court decided that,
because Jackson had produced no evidence that the substance was
another form of cocaine base, further testing was unnecessary.

Jackson contends on appeal that further testing might have shown
that the substance was not crack within the meaning of the guideline,
i.e., "a form of cocaine base, usually prepared by processing cocaine

                     4
hydrochloride and sodium bicarbonate, and usually appearing in a
lumpy, rock-like form." USSG § 2D1.1(c) Note D. He relies on
United States v. James, 78 F.3d 851 (3d Cir. 1996), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3259 (U.S. Oct. 7, 1996) (No. 95-9224), and
United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994), two
cases in which there was some uncertainty about whether the sub-
stance in question was actually crack. The record here reveals no such
ambiguity. At the Rule 11 hearing Jackson said he understood that he
was subject to a ten-year mandatory minimum sentence if the amount
of "crack" involved in his offense was more than fifty grams. We
therefore find that the district court did not abuse its discretion when
it dispensed with further testing. In his pro se supplemental brief,
Jackson contends that the government failed to prove that the sub-
stance was crack. We are satisfied that the district court did not
clearly err in finding, by a preponderance of the evidence, that the
substance was crack. The government produced evidence that it was
crack and Jackson produced no evidence to the contrary.

The probation officer recommended that Jackson receive an adjust-
ment for obstruction of justice based on his failure to appear at sen-
tencing, see USSG § 2J1.6, comment. (n.3), as well as an adjustment
for reckless endangerment based on his reckless driving through a res-
idential area during the high-speed chase before his arrest. See USSG
§ 3C1.2. In his objections to the presentence report, Jackson denied
nearly striking a woman and child during the high-speed chase and
denied obstructing justice by failing to appear. He made no argument
at sentencing and the district court overruled his objections, incor-
rectly stating that Jackson had obstructed justice by his reckless driv-
ing. Jackson now contends that this amounted to double counting.

An adjustment for reckless endangerment is not given when the
defendant's offense level has been increased by an equal or greater
amount under another guideline for the same conduct. see USSG
§ 3C1.2, comment. (n.1). In Jackson's case, the adjustments were not
based on the same conduct despite the district court's misstatement.
Therefore, we find no error in the application of the guidelines.

Next, Jackson argues that the district court failed to make an ade-
quate finding of fact to resolve the disputed reckless endangerment
issue. The presentence report contained a description of the high-

                    5
speed chase. In response to Jackson's objection, the probation officer
reported that the information came from the Deputy U.S. Marshals
who were involved in the chase. At sentencing, Jackson produced no
contrary evidence and made no argument. He thereby failed to meet
his burden of showing that the information in the presentence report
was inaccurate. See United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990). Without such an affirmative showing, the district court
was free to resolve the issue by adopting the recommended findings
in the presentence report. Id.; see also United States v. McManus, 23
F.3d 878, 887 (4th Cir. 1994).

Jackson also contests the district court's refusal to grant him an
adjustment for acceptance of responsibility. The adjustment generally
is not intended for a defendant who has engaged in conduct which
results in an adjustment for obstruction of justice. See USSG § 3E1.1,
comment. (n.4). In an extraordinary case, a defendant who has
received an adjustment for obstruction of justice may also receive an
adjustment for acceptance of responsibility. Id. However, Jackson
made no effort to show that his was an extraordinary case, nor does
the record demonstrate that it was. Consequently, we find no clear
error.

Finally, Jackson contests the district court's decision to require him
to reimburse the government for attorney's fees paid to his court-
appointed counsel as a condition of supervised release. He objects
(1) that no funds were available for reimbursement, (2) that the court
lacked authority to order repayment as a condition of supervised
release, and (3) that the court erred in delegating the schedule for
repayment to the Bureau of Prisons and the Probation Office.

Under 18 U.S.C. § 3006A(f) (1994), the court must "[find] that
funds are available for payment from or on behalf of a person fur-
nished representation" before it orders repayment. The district court
need not make an explicit finding on the record that the defendant has
the ability to pay. The appeals court may uphold reimbursement
orders without a specific finding on the availability of funds if there
is sufficient evidence in the record to support the court's decision and
the defendant did not object to that evidence. See United States v.
Behnezhad, 907 F.2d 896, 900 (9th Cir. 1990); United States v.
Gurtunca, 836 F.2d 283, 288 (7th Cir. 1987). Here, the evidence is

                    6
minimally adequate to indicate that Jackson could repay the costs of
his representation during his period of supervised release. Although
he had little work experience, Jackson had completed the tenth grade
and was currently taking classes toward a GED. Moreover, in his plea
agreement, Jackson promised to reimburse the United States for the
cost of court-appointed counsel and agreed that the judgment order
should include such reimbursement. These facts sufficiently support
the finding required by § 3006A(f).

The district court had authority to make reimbursement a condition
of supervised release under 18 U.S.C. § 3583(d) (1994), which states
that a district court may impose conditions on supervised release if
they are reasonably related to the factors set forth in 18 U.S.C.
§ 3553(a)(1), (a)(2)(B)-(D) (1994). Subsection (a)(2)(B) lists "deter-
rence to criminal conduct" as an appropriate factor for consideration.
Requiring a defendant to reimburse the government for the cost of his
court-appointed attorney may deter him from committing another
crime. Because reimbursement is reasonably related to the goal of
deterrence, the district court had the authority to impose it as a condi-
tion of Jackson's supervised release.

The district court ordered the reimbursement to be payable in full
immediately on a schedule established by the Bureau of Prisons under
the Inmate Financial Responsibility Program and, if repayment is still
in progress when his supervised release commences, on a schedule
established by the Probation Office. Jackson maintains that the court
erred in delegating its responsibility to determine the amount and tim-
ing of his repayment. See United States v. Johnson, 48 F.3d 806, 809
(4th Cir. 1995) (holding that sentencing court may not delegate deci-
sions concerning amount and timing of restitution payments). Jackson
failed to object to the order in the district court; therefore, we review
it for plain error. See Olano, 507 U.S. at 732-35. Under a plain error
analysis, we find that, even if the district court erred in delegating the
responsibility for determining a repayment schedule to the Bureau of
Prisons and the Probation Office, the error did not affect Jackson's
substantial rights. While an error affecting a defendant's substantial
rights may not always be an error which prejudices him, generally it
is the kind of error which requires correction. See Olano, 507 U.S. at
735 (speculating that there may be a special category of forfeited
errors that can be corrected regardless of their affect on the outcome).

                     7
The defendant has the burden of demonstrating prejudice on appeal.
See id. at 734; Fed. R. Crim. P. 52(b). Jackson has not shown that the
order has prejudiced him. If he has difficulty meeting the scheduled
payments while on supervised release, he can petition the district
court for modification of the terms of his supervised release. See
§ 3583(e)(2) (1994) and Fed. R. Crim. P. 32.1(b). And, if the govern-
ment should seek to revoke his supervised release for non-payment,
he could assert lack of funds as a defense. See Gurtunca, 836 F.2d at
289. In sum, because the alleged error does not affect Jackson's sub-
stantial rights, we conclude that it does not constitute plain error.

Therefore, we affirm the order denying Jackson's motion to with-
draw his guilty plea and affirm the sentence. We grant Jackson's
request to file a pro se supplemental brief. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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