                                        NOT PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                  _____________
                   No. 18-3104
                  _____________




         UNITED STATES OF AMERICA
                         v.
               ARMAND JOSEPH,
                                         Appellant


   On Appeal from the United States District Court
             for the District of New Jersey
       (District Court No.: 2-13-cr-00627-001)
 District Court Judge: Honorable Susan D. Wigenton



    Submitted under Third Circuit L.A.R. 34.1(a)
                 on July 9, 2019


         (Opinion filed: September 6, 2019)


Before: McKEE, ROTH and RENDELL, Circuit Judges
                                      O P I N I O N*



RENDELL, Circuit Judge:

       Armand Joseph, appellant, pled guilty to conspiracy to commit theft of

government property by fraud and was sentenced to 24 months’ imprisonment. On

appeal, he urges that: (1) the District Court erred in denying his application to withdraw

his guilty plea; and (2) his sentence is procedurally and substantively unreasonable

because the District Court refused to grant him a four-level minimal role guidelines

reduction and failed to properly consider the § 3553(a) factors. We will affirm the

District Court’s sentence.

                                             I

       Armand Joseph was a clerk at ABC Check Cashing (“ABC”), when an

unidentified man came into the ABC with fraudulent federal income tax refund checks.

Joseph agreed to cash 34 checks without verifying that the presenter was the payee in

exchange for payments of roughly $100 a check. To hide what he had done, Joseph

recorded the transactions under the accounts of valid ABC customers. Joseph was

eventually charged with conspiracy to commit theft of government property by fraud.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
       Joseph eventually entered into a plea agreement, in exchange for certain factual

stipulations: that (1) Joseph cashed nearly 250,000 dollars of federal income tax refund

checks, (2) Joseph gave the money from the checks to an individual who was not the

legal beneficiary of the checks in exchange for at least 100 dollars per check, and (3)

Joseph was a minimal participant in the scheme. The agreement also contained a section

acknowledging that the sentencing court has the discretion to disregard the stipulations in

the agreement if they differ from its own factual findings. Following the plea, the

government recommended a sentence of 24 months’ imprisonment.

       In response to the government’s sentence recommendation, Joseph moved for an

order allowing him to withdraw his guilty plea and proceed to trial. He claimed that he

was innocent and that he had only pled guilty because the government led him to believe

he would not serve any time in jail. The District Court denied the motion, stating that

Joseph had previously asserted his guilt several times under oath. The Court further

concluded that his apprehensions over the government’s sentence recommendation is not

a sufficient reason to withdraw his plea. The District Court also concluded that allowing

the case to go to trial would prejudice the government because years had passed since the

offense and the ABC closed during that time.

       The Probation Office prepared an initial Presentence Investigation Report (“PSR”)

that incorrectly calculated Joseph’s base offense level as eighteen. Before the sentencing

date, the Probation Office revised the PSR to correctly calculate Joseph’s base offense

level as sixteen. The revised PSR recommended that Joseph not receive any mitigating


                                             3
role reduction. The PSR recommended an advisory guidelines range of 24 to 30 months’

imprisonment.

       At sentencing, Joseph argued that he was entitled to a four-level minimal role

reduction. Joseph argued that he had an insignificant role in the crime and that the parties

had stipulated that his role in the crime was minimal. The District Court stated that

Joseph was only entitled to a two-level minor role reduction because a four-level

reduction is used for people who are “duped into being a part of a scheme” and have “no

idea what has happened.” App. 78-79. The District Court concluded that a two-level

minor role reduction was proper because Joseph assisted in the crime but was not so

involved as to necessitate no deduction. The District Court sentenced Joseph to 24

months’ imprisonment in accordance with the calculated Guidelines. This appeal

followed.

                                             II

       Joseph appeals both the District Court’s denial of his motion to withdraw his plea

and the sentence the District Court imposed. The District Court had jurisdiction pursuant

to 18 U.S.C. § 3231. We have jurisdiction over the challenge to the conviction pursuant

to 18 U.S.C. § 1291. We have jurisdiction over the challenge to the sentence under 18

U.S.C. § 3742(a). We review the denial of the motion to his withdraw guilty pleas under

an abuse of discretion standard. United States v. Siddons, 660 F.3d 699, 703 (3d Cir.

2011). We review the District Court’s sentencing decision under an abuse of discretion

standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).

                                             4
                                             A

       To sustain a motion to withdraw a guilty plea, a district court examines “(1)

whether the defendant asserts his innocence, (2) the strength of the defendant’s reasons

for withdrawing the plea, and (3) whether the government would be prejudiced by the

withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). Change of mind

or fear of punishment are not adequate reasons to withdraw a plea. Id. The burden of

proof is on the defendant to show that a motion to withdraw a guilty plea is proper. Id.

Joseph argues that the District Court abused its discretion in denying his motion.

       Joseph first argues that he has maintained innocence throughout the proceedings

because he lacked the requisite mens rea to be guilty of conspiracy to defraud the

government. He points to his refusal to label his actions as “fraud” as proof of this.

Joseph admitted under oath, however, that he cashed the checks with full knowledge that

they did not belong to the person cashing them. He further admitted that he knew both

that the checks were payable by the United States Department of the Treasury and that

what he was doing was unlawful. At no point does Joseph attempt to reconcile these

admissions with his claim of innocence. Joseph’s refusal to label his actions as “fraud”

does not change the fact that he admitted to knowingly defrauding the government.

       Joseph also argues that he provided a strong reason warranting withdrawing his

plea. He claims that the government failed to live up to its promise when it recommended

24 months’ imprisonment. However, the plea agreement never made any representations

about the government’s recommended sentence. The agreement explicitly stated that the

                                              5
District Court has the sole discretion to impose the sentence. Furthermore, Joseph’s fear

of punishment after the government made its recommendation is not an acceptable reason

to withdraw his guilty plea. Id.

       Joseph finally argues that the government would not be prejudiced by his plea

withdrawal. He argues that the government would not have trouble marshalling the small

number of witnesses or the evidence needed to conduct a trial. The government need not

prove prejudice when the defense has failed to establish sufficient grounds for

withdrawing a guilty plea. See United States v. Martinez, 785 F.2d 111, 116 (3d Cir.

1986). Even so, the District Court did not abuse its discretion when it concluded that the

government would be prejudiced because the events occurred ten-years ago and ABC has

since closed. Thus, the District Court did not err when it denied Joseph’s motion to

withdraw his guilty plea.

                                             B

       When reviewing sentencing decisions, we first examine whether the District Court

committed any significant procedural errors. Significant procedural errors include

“failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence[.]”

Tomko, 562 F.3d at 567 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If there

are no significant procedural errors, we then consider the substantive reasonableness of

the sentence in light of the “totality of the circumstances.” Tomko, 562 F.3d at 567.

                                             6
Joseph argues that the District Court erred by improperly calculating the Guidelines and

by failing to adequately consider the § 3553(a) factors. He argues that this procedural

error led the District Court to impose a substantively unreasonable sentence.

       Joseph claims that the District Court rejected the stipulated four-level minimal role

reduction because it misinterpreted U.S.S.G. § 3B1.2 and failed to apply the factors

enumerated therein. He relies mainly on the Court’s comment that a four-level minimal

role is “almost as if somebody has no idea what has happened” and has essentially “been

duped into being a part of a scheme.” App. 78. But, Joseph’s complaints here are ill-

founded, as the context of these remarks suggest the District Court properly applied the

guidelines in its calculation. First, following the remark on “duped” defendants, the

District Court stated, “Mr. Joseph went to the extent of putting the names of [other

customers] on these checks . . . to basically avoid detection or any questions, so it wasn’t

quite as innocent as . . . him not having any idea.” App. 78-9. Second, the District Court

properly examined the degree to which the defendant understood the scope of the plan,

his autonomy to make decisions, what his actual role was, and the degree to which he

benefitted from the scam.

       Even so, the District Court also deviated from the PSR’s recommendation not to

provide any role reduction. App. 79 (“[T]he presentence report really accurately

calculates him, that he shouldn’t be given any benefit. But because I know that there was

a negotiated plea . . . the fair assessment of what Mr. Joseph did would qualify for a

minor role adjustment.”). As a result, the District court properly considered Joseph’s


                                             7
involvement in the conspiracy and did not abuse its discretion when it imposed a two-

level minor role reduction.

       Joseph further argues that the District Court abused its discretion by not adhering

to the stipulations agreed upon in the plea agreement.1 But a “sentencing court is not

bound by factual stipulations in a plea agreement and has discretion to make factual

findings[.]” United States v. Maurer, 639 F.3d 72, 81 (3d Cir. 2011) (quoting United

States v. Ketcham, 80 F.3d 789, 792 n.6 (3d Cir. 1996)). And the plea agreement here,

states that the agreement “cannot and does not bind the sentencing judge, who may make

independent factual findings and may reject any or all of the stipulations entered into by

the parties.” Appellee Br. 4. The District Court was therefore within its discretion to

reject the stipulated facts and grant Joseph a minor participant reduction based on its own

independent findings.

       Joseph’s argument that the District Court failed to consider the § 3553(a) factors is

also erroneous. His argument appears to be tethered to the claim that the District Court

did not appropriately consider the history of the defendant and the nature of his crime.

However, the Court did consider Joseph’s history carefully and considered additional

facts that the defense failed to acknowledge, such as the fact that Joseph deliberately tried


1
  Joseph also argues that the government breached the plea agreement by defending on
appeal the District Court’s rejection of the minimal role reduction. The agreement clearly
states “[i]f the sentencing court rejects a stipulation, both parties reserve the right to argue
on appeal . . . that the sentencing court was within its discretion and authority to do so.”
Supp. App. 3. Even so, the government can defend a District Court’s denial of a
stipulated sentencing adjustment on appeal. See United States v. Griswold, 57 F.3d 291,
298-99 (3d Cir. 1995).
                                               8
to conceal his wrongdoing. App. 78-9. (“It clearly indicates that Mr. Joseph went to the

extent of putting the names of the people on these checks o[f] prior customers of the

check cashing business to basically avoid any detection[.]”). After considering both

Joseph’s history and the nature of the crime, the Court described at length the specific

societal and individual needs met by the sentence. App. 79-84 (“I then turn to the 3553(a)

factors, try to determine what sentence will be sufficient but not greater than necessary to

reflect the seriousness [of the crime], to promote respect for the law[, and] provide just

punishment for what occurred.”). The record shows that the District Court carefully

considered all of the § 3553(a) factors when sentencing Joseph. Thus, Joseph’s claims

relating to the procedural reasonableness of his sentence fail.2

                                              III

         For the aforementioned reasons, we will affirm the sentencing order of the District

Court.




2
 Because Joseph’s argument about the substantive reasonableness of the sentence relied
entirely on a finding that the District Court procedurally erred in calculating the
Guidelines and erred in considering the § 3553(a) factors, the sentence imposed was also
substantively reasonable.
                                              9
