           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 28, 2009

                                       No. 06-31130                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MONICA D. TATUM MCWILLIAMS

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 05-CR-30044-1


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Monica D. Tatum McWilliams (“McWilliams”) alleges six points
of error arising from her 2006 trial, conviction, and sentencing. McWilliams was
convicted of forty-seven counts related to a fraudulent scheme to obtain federal
money for a daycare center she ran from 1998 through 2004, held responsible for
$617,057.17 in actual losses, and sentenced to eighty-seven months of
imprisonment.       She contends that: (1) trial counsel provided ineffective
assistance; (2) the district court erred in denying five pre-trial motions; (3) the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 06-31130

Government’s closing statement and rebuttal contained improper argument; (4)
the district court incorrectly calculated the loss amount; (5) she was erroneously
held responsible for obstruction of justice; and (6) the sentence was
unreasonable. The Government claims that the appeal should be dismissed
under Fifth Circuit Local Rule 42.3. We deny the Government’s motion to
dismiss and AFFIRM McWilliams’s conviction and sentence.
       Initially, we decline to dismiss McWilliams’s appeal for want of
prosecution under Fifth Circuit Local Rule 42.3.1.1. McWilliams filed a timely
notice of appeal, but her case was dismissed due to her purported failure to order
transcripts or make financial arrangements with the court reporter. Her counsel
was advised to order the record and make arrangements, but he was not advised
to file that order with the district clerk. Within thirty days, McWilliams
submitted evidence that she had timely ordered a transcript (although she did
not timely file the transcript order with the district clerk) such that she was not
substantively in default at the time of the dismissal. However, her appeal was
not reinstated until she filed a motion with this court twelve months later. Due
to McWilliams’s timely notice of appeal, this case does not implicate our holding
in United States v. Plascencia, 537 F.3d 385, 389-90 (5th Cir. 2008). We see no
undue prejudice for the Government by our discretionary reinstatement of this
appeal; we deny the Government’s motion to dismiss.
       McWilliams dedicated the majority of her presentation at oral argument
to a direct claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 687 (1984).1 McWilliams suggests that the brief time
between trial counsel’s entry of appearance and trial, his statements in a motion
to continue the trial date, his tactical decisions during trial, and the comments


       1
         In her appellate brief, McWilliams conceded that her allegations of ineffective
assistance of counsel “fall squarely within the category of claims that are properly reserved for
collateral attack, where testimony can be taken and supporting facts developed.”

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of the district court regarding counsel’s conduct constitute per se evidence of
ineffective assistance of counsel such that her ineffective assistance claim
should be addressed in this direct appeal. We disagree that the time is right.
Given the relatively undeveloped record before this court on this question, we
decline to address McWilliams’s ineffective assistance claim on direct appeal.
See United States v. Maria-Martinez, 143 F.3d 914, 916 (5th Cir. 1998); United
States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).
       McWilliams next challenges five pretrial rulings by the district court.2
Having carefully considered the district court’s determinations in light of the
record before us, we conclude that the district court did not abuse its discretion
in making these rulings.
       McWilliams also claims as plain error two statements by the prosecutor
during closing argument and rebuttal. See United States v. Mares, 402 F.3d 511,
515 (5th Cir. 2005) (holding that plain error standard applies to prosecution
remarks made without contemporaneous objection). The prosecutor said, “I
guess now the government, federal government, state government, we’re all
involved in this conspiracy now to get [McWilliams],” and “[w]e’re all just here
to get her . . . . of course, the way this conspiracy would have to work, the state
would have to be involved. The U.S. Government would have to be involved.”
It is impermissible for a prosecutor to bolster witnesses or invoke her personal
status as the government’s attorney or the sanction of the government itself as


       2
         All of the district court’s challenged pretrial rulings are reviewed under an abuse of
discretion standard. See United States v. Butler, 429 F.3d 140, 148 (5th Cir. 2005) (“We review
a district court’s discovery rulings for an abuse of discretion.”); United States v. Arditti, 955
F.2d 331, 345 (5th Cir. 1992) (reviewing grant of motion to quash subpoena for abuse of
discretion); United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir. 1980) (applying
abuse-of-discretion standard to denial of motion for bill of particulars); United States v. Ross,
511 F.2d 757, 762 (5th Cir. 1975) (reviewing district court’s Rule 16 ruling for abuse of
discretion). The court will order a new trial based on discovery violations only when the
complaining party demonstrates prejudice to his substantial rights. United States v. Webster,
162 F.3d 308, 336 (5th Cir. 1998).

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a basis for convicting a criminal defendant. United States v. Gracia, 522 F.3d
597, 601-02 (5th Cir. 2008); United States v. Goff, 847 F.2d 149, 164 (5th Cir.
1988) (finding error where prosecutor suggested that, for a not guilty verdict,
“the jury would have to believe that several governmental agencies and even
perhaps federal judges had engaged in a malevolent and illegal conspiracy to
convict them.”).
      McWilliams raised this governmental conspiracy by her testimony and the
testimony elicited from others; thus, she “opened the door” to the prosecutor’s
argument at trial, mitigating these otherwise improper statements. United
States v. Ramirez-Velasquez, 322 F.3d 868, 874 (5th Cir. 2003). In any case,
given the significant evidence of McWilliams’s guilt, the relatively fleeting
nature of the prosecutor’s comments, and the defense’s opening of this door, we
conclude that the prosecutor’s comments did not constitute plain error. See
United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999).
      Finally, McWilliams challenges the district court’s sentence, claiming that
the loss amount was improperly calculated, she should not have been held
responsible for obstruction of justice under the Sentencing Guidelines, and the
resulting term of imprisonment was substantively unreasonable. We find no
clear error in the district court’s loss finding, and conclude that the district court
made a reasonable estimate of the actual loss given the available information.
See United States v. Edwards, 303 F.3d 606, 645 (5th Cir. 2002); see also U.S.
SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.3(C) (2005). The application
of an enhancement under section 3C1.1 of the Sentencing Guidelines for
McWilliams’s obstruction of justice was not clearly erroneous.                   This
determination was plausible in light of the record as a whole, particularly given
the district court’s finding that McWilliams committed six instances of perjury
during her trial testimony. See United States v. Juarez-Duarte, 513 F.3d 204,
208-09 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008); U.S. SENTENCING

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GUIDELINES MANUAL § 3C1.1 & cmt. n.6. The resulting sentence was within a
properly-calculated Guidelines range, and, although it was certainly greater
than her co-defendant who timely pled and cooperated with the government,
McWilliams’s sentence did not constitute an abuse of discretion. See Gall v.
United States, 128 S. Ct. 586, 591 (2007); Rita v. United States, 551 U.S. 338,
127 S. Ct. 2456, 2459 (2007). The record is sufficiently clear that the district
court gave due consideration to the trial testimony and factors set forth in 18
U.S.C. § 3553(a), and McWilliams has failed to demonstrate that the ultimate
sentence was unreasonable when viewed against the totality of these factors.
See Gall, 128 S. Ct. at 594, 597.
      Accordingly, McWilliams’s conviction and sentence are AFFIRMED.




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