                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                     FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                    June 9, 2006
                                 No. 05-14020                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                     D. C. Docket No. 05-00011-CR-T-26-EAJ

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus
TERESA SULLIVAN,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                   (June 9, 2006)


Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Teresa Sullivan pleaded guilty to filing a false individual income tax return

in violation of 26 U.S.C. § 7206(1) and causing false income tax returns to be filed
on behalf of other individuals in violation of 18 U.S.C. §§ 2 and 287. The week

before her sentencing, Sullivan filed a motion to withdraw her guilty plea. The

district court denied the motion after a full evidentiary hearing and sentenced

Sullivan to 46 months’ imprisonment.

      On appeal, Sullivan argues that the district court erred by not allowing her to

withdraw her plea because it was not knowing and voluntary. She also argues that

the district court improperly applied a role enhancement at sentencing by

considering the number of participants involved in the whole tax fraud scheme

instead of the number of participants involved in each count of the indictment. We

affirm.

                                          I.

      Sullivan contends that her plea was not entered knowingly and voluntarily

because she believed that the government’s agreement not to indict her daughters if

she pleaded guilty was actually a threat that her daughters would be indicted if she

did not plead guilty. Therefore, she argues that the district court erred when it

denied her motion to withdraw her plea.

      At the plea hearing, the district court asked Sullivan whether she had

received any inducement to plead guilty other than the fact that the government

agreed that her two daughters would not be charged. Sullivan indicated that this



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was the only inducement or promise that had been made in exchange for her guilty

plea. The court also specifically asked whether anyone had threatened Sullivan or

her family in any way. Sullivan indicated that no threats had been made and that

she was pleading guilty because it was what she wanted to do and not for any other

purpose.

      After Sullivan indicated that she wished to withdraw her guilty plea, the

district court held an evidentiary hearing. The only evidence Sullivan presented

that her plea was not knowing and voluntary was her own testimony that she felt

that the government had threatened to arrest her daughters if she did not plead

guilty. The district court found that Sullivan had “contrived” this theory after she

saw her presentence investigation report and realized that she would be facing

imprisonment.

      Federal Rule of Criminal Procedure 11 provides that “[a] defendant may

withdraw a plea of guilty . . . after the court accepts the plea, but before it imposes

sentence if . . .the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). When deciding whether to grant a

motion to withdraw a guilty plea, “the district court may consider the totality of the

circumstances surrounding the plea . . . includ[ing] (1) whether close assistance of

counsel was available; (2) whether the plea was knowing and voluntary; (3)



                                            3
whether judicial resources would be conserved; and (4) whether the government

would be prejudiced if the defendant were allowed to withdraw his plea.” United

States v. Buckles, 843 F.2d 469, 471–72 (11th Cir. 1988) (internal citations

omitted).

      We review the denial of a motion to withdraw a guilty plea for an abuse of

discretion, United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996), but “[t]he

good faith, credibility and weight of a defendant’s assertions in support of a motion

[to withdraw] are issues for the trial court to decide.” Buckles, 843 F.2d at 472.

      The district court did not abuse its discretion in denying Sullivan’s motion to

withdraw her plea. Sullivan does not challenge that she had the close assistance of

counsel at the plea hearing. The district court found that judicial resources would

be conserved by denying Sullivan’s motion because the court had been ready to try

the case at the time of the plea hearing. The district court credited the

government’s statements that it would be prejudiced if Sullivan’s motion was

granted because it would again have to round up witnesses who were difficult to

locate. Sullivan did not present any evidence or testimony at the hearing that

would contradict the district court’s findings.

      With respect to Sullivan’s contention that the plea was not entered

knowingly and voluntarily, the district court specifically found that Sullivan’s



                                           4
testimony regarding her belief that she was being threatened was contrived and not

credible. The credibility and good faith of Sullivan’s assertions supporting her

motion to withdraw is an issue for the district court to decide. We will not

overturn its findings on that issue, particularly when Sullivan presented no other

evidence to support her claim. Accordingly, the district court did not abuse its

discretion when it denied Sullivan’s motion to withdraw her guilty plea. We

affirm her convictions.

                                          II.

      Sullivan also appeals the district court’s application of an enhancement for

Sullivan’s role in the offense. The district court applied a four level enhancement

pursuant to United States Sentencing Guidelines § 3B1.1(a) because Sullivan was

the leader of a criminal activity that involved five or more participants. Sullivan

argues that the enhancement was improper because it was based on separate

offenses charged in separate counts of the indictment and that no singular offense

involved the requisite number of participants. We review the district court’s

determination of a defendant’s role in the offense for clear error. United States v.

DeVaron, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

      Section 3B1.1(a) provides a four level enhancement “[i]f the defendant was

an organizer or leader of a criminal activity that involved five or more participants



                                          5
or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (Nov. 2004). The commentary

to § 3B1.1 states that the defendant’s role in the offense should be determined on

the basis of all relevant conduct within the scope of § 1B1.3. U.S.S.G. ch. 3, pt. B,

introductory cmt. According to § 1B1.3(a)(2), relevant conduct includes all acts

that are part of the “same course of conduct or common scheme or plan as the

offense of conviction” if the offense is of a character for which § 3D1.2(d) would

require grouping of multiple counts. U.S.S.G. § 1B1.3(a)(2). Sullivan’s tax

offenses, which are covered by guidelines § 2T1.1, are explicitly listed as offenses

to which § 3D1.2(d). U.S.S.G. § 3D1.2(d) applies.

      The commentary to § 1B1.3 provides further support for considering

Sullivan’s entire scheme for purposes of sentencing:

      Subsection (a)(2) provides for consideration of a broader range of
      conduct with respect to one class of offenses, primarily certain
      property, tax, fraud and drug offenses for which the guidelines depend
      substantially on quantity, than with respect to other offenses such as
      assault, robbery and burglary. . . .

      In addition, the distinctions that the law makes as to what
      constitutes separate counts or offenses often turn on technical
      elements that are not especially meaningful for purposes of
      sentencing. Thus, in a mail fraud case, the scheme is an element
      of the offense and each mailing may be the basis for a separate
      count; in an embezzlement case, each taking may provide a
      basis for a separate count. Another consideration is that in a
      pattern of small thefts, for example, it is important to take into
      account the full range of related conduct. Relying on the entire
      range of conduct, regardless of the number of counts that are

                                       6
      alleged or on which a conviction is obtained, appears to be the
      most reasonable approach to writing workable guidelines for
      these offenses.

U.S.S.G. § 1B1.3 cmt. background.

      Sullivan was the leader and organizer of a scheme to file multiple false

income tax returns. She prepared fictitious W-2 forms and fabricated false

dependents for eleven other taxpayers. She frequently drove the individuals to

different tax return preparers so that her scheme would not be detected. Sullivan’s

scheme is precisely the type that should be considered collectively as relevant

conduct under § 1B1.3. Therefore, the district court did not err in considering all

of the participants for the purposes of applying a § 3B1.1(a) role enhancement,

regardless of the fact that each participant was the subject of a separate count.

      AFFIRMED.




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