                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4725


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.    W. Earl Britt,
Senior District Judge. (7:10-cr-00093-BR-1)


Submitted:   April 25, 2012                 Decided:   May 4, 2012


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Charlette Dufray Johnson, Appellant Pro Se. Kristine L. Fritz,
Jennifer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Charlette Dufray Johnson pled guilty to two counts of

violating 18 U.S.C. § 287 (2006), eight counts of violating 18

U.S.C. § 1343       (2006),    and    two       counts    of    violating     18   U.S.C.

§ 1028(a)(1)-(b) (2006), based on fraudulent claims for disaster

assistance submitted to the Federal Emergency Management Agency

(“FEMA”); wire fraud related to fraudulent claims submitted to

the Gulf Coast Claims Facility (“GCCF”); and identity theft.

She was sentenced to 121 months’ imprisonment and ordered to pay

restitution in the amount of $107,593.30.                        On appeal, Johnson,

proceeding    pro     se,     asserts       numerous        errors       regarding    her

convictions and sentence.            Finding no merit to Johnson’s attack

on her convictions, we affirm the convictions.                            We conclude,

however,    that    Johnson’s      sentence       is     procedurally      unreasonable

and that the restitution order is not supported by the offenses

of conviction.        We therefore vacate Johnson’s sentence and the

order of restitution, and remand for further proceedings.

            Johnson    pled     guilty      without        a    plea   agreement.       A

comprehensive      review     of     the    record       confirms      that     Johnson’s

guilty plea     was   knowing      and     voluntary       and    that    the    district

court complied with Federal Rule of Criminal Procedure 11 in

accepting    her    plea.     Johnson       argues       that    the   district      court

erred in denying her motion to withdraw her guilty plea.                             This



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court reviews a district court’s denial of a motion to withdraw

a   guilty     plea     for    abuse    of    discretion.          United    States     v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).                        “A defendant has

no absolute right to withdraw a guilty plea.”                       United States v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation

marks      omitted).         This   court    closely     scrutinizes     the    Rule    11

colloquy and if it is adequate, “a strong presumption that the

plea is final and binding” attaches.                     United States v. Lambey,

974 F.2d 1389, 1394 (4th Cir. 1992).                     Here, the district court

conducted the Rule 11 proceeding twice.                      Johnson was aided by

counsel and stated her satisfaction with counsel.                           Johnson has

not    asserted       that    her   plea     was   not   knowing    or   that    she    is

innocent.        Notably,       Johnson      never   indicated      at   the    Rule    11

hearing that she felt coerced or intimidated into entering her

plea.       Indeed, she repeatedly stated exactly the opposite.                        The

district court considered the applicable factors announced in

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).                              We

thus       conclude    that     the    district      court   did     not     abuse     its

discretion in denying Johnson’s motion to withdraw her plea.                            We

therefore affirm Johnson’s convictions. *


       *
       Johnson contends that the district court erred in denying
her motion to substitute counsel prior to sentencing.       This
court reviews a district court’s ruling on a motion to
substitute counsel for abuse of discretion.    United States v.
(Continued)

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              Turning to Johnson’s sentence, this court reviews for

reasonableness, using an abuse of discretion standard.                Gall v.

United States, 552 U.S. 38, 50 (2007).               We must first ensure

that   the    district    court    committed   no   significant     procedural

error.       United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009).    Johnson argues that the district court erred in applying

the    “vulnerable       victim”    enhancement     under   the     Sentencing

Guidelines and in ordering an excessive amount of restitution.

We find that these arguments are meritorious and thus conclude

that Johnson’s sentence was procedurally unreasonable.

              The relevant Guideline provision mandates that “[i]f

the defendant knew or should have known that a victim of the

offense was a vulnerable victim, increase [the offense level] by

2   levels.”      U.S.    Sentencing   Guidelines     Manual   § 3A1.1(b)(1)

(2010).      The commentary to § 3A1.1 defines a “vulnerable victim”

as “a person (A) who is a victim of the offense of conviction

and any conduct for which the defendant is accountable under

§ 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable

due to age, physical or mental condition, or who is otherwise

particularly susceptible to the criminal conduct.”                USSG § 3A1.1



Perez, 661 F.3d 189, 191 (4th Cir. 2011).   Our review of the
record leads us to conclude that the district court did not
abuse its discretion in denying the motion.



                                       4
cmt.     n.2.        The      presentence        investigation      report      (“PSR”)

recommended application of the enhancement because “[a]t least

three of the individuals for whom Johnson used their identifying

data are deemed victims.”              The district court merely noted that

“the vulnerable victims here are . . . her minor daughter, her

elderly mother, and one [individual] who was an elderly [sic]

and living in a rest home.”

             We conclude that the district court erred in failing

to make adequate factual findings to establish a basis for the

enhancement.          A     district   court      is    required    to     analyze   the

“vulnerable victim” enhancement using a two-prong approach:

       First, a sentencing court must determine that a victim
       was unusually vulnerable. Second, the court must then
       assess whether the defendant knew or should have known
       of such unusual vulnerability. . . . In other words,
       applying the vulnerable victim adjustment requires a
       fact-based explanation of why advanced age or some
       other   characteristic  made   one  or   more  victims
       unusually vulnerable to the offense conduct, and why
       the defendant knew or should have known of this
       unusual vulnerability.

United     States     v.    Llamas,    599   F.3d      381,   388   (4th     Cir.   2010)

(internal quotation marks and citations omitted).                             Here, the

district court failed to make explicit findings on the record as

to   the    victims,        their   unusual      vulnerability,        and    Johnson’s

knowledge       of   such    vulnerability.         See   id.   (“In     applying     the

vulnerable victim adjustment, the district court simply made a

generalized finding that [the defendant] should have known of


                                             5
his victims’ vulnerabilities.                 This finding, however, . . . does

not sufficiently support application of the adjustment.                              Indeed,

our precedent stresses the importance of an adequate explanation

for such sentencing decisions.”).                     Because the district court

did   not    adequately        explain    its       reasoning      for       applying    the

enhancement, Johnson’s sentence is not procedurally reasonable.

             The district court ordered Johnson to pay restitution

to FEMA in the amount of $85,341.30 and to the state of Florida,

Agency of Workforce Innovations, in the amount of $22,252.00

pursuant     to    18   U.S.C.    § 3663A         (2006),    the   Mandatory         Victims

Restitution Act (“MVRA”).               The MVRA mandates that the district

court,      when    sentencing      a    person          convicted      of     an    offense

involving fraud, order “the defendant [to] make restitution to

the victim of the offense.”              18 U.S.C. § 3663A(a)(1).                   The MVRA

requires district courts to make sufficient factual findings to

support an order of restitution, including findings as to the

defendant’s        resources     and    the       feasibility      of    the    manner    of

restitution.        See United States v. Davenport, 445 F.3d 366, 373

(4th Cir. 2006).

             Johnson      was     not     charged          with    or     convicted       of

unemployment fraud, nor did the district court make specific

factual      findings     related        to       such    conduct.           Johnson     was

nevertheless ordered to pay restitution to the victim of that



                                              6
alleged fraud (the Florida Agency for Workforce Innovations).

We conclude that these alleged acts of fraud cannot permissibly

serve as the basis for an order of restitution under § 3663A

because    Florida       was    not    “the       victim       of      the    offense      [of

conviction.]”      18 U.S.C. § 3663A(a)(1).

            The    district      court   also          imposed      restitution      in    the

amount of $85,341.30 based on fifteen fraudulent FEMA claims,

again without making explicit factual findings.                          The superseding

indictment, however, described only six fraudulent FEMA claims,

totaling $76,666.30.           Johnson pled guilty to only two of those

counts (totaling $53,666.30) and the remaining four counts were

dismissed.        We    conclude      that       the    district       court    improperly

imposed    restitution         for    conduct          that    was     not    included     in

Johnson’s offenses of conviction.                  See Llamas, 599 F.3d at 390-

91.    We therefore vacate the restitution order and remand for

further consideration.

            We conclude that the remainder of Johnson’s arguments

are    without     merit.             Accordingly,            we     affirm        Johnson’s

convictions, vacate her sentence and the order of restitution,

and remand for further proceedings.                      We deny Johnson’s motions

to    reconsider       the   order    denying          her    motion    for    a    stay    or

injunction pending appeal, and deny her motions and supplemental

motions to file a supplemental brief, to dismiss the superseding



                                             7
indictment, to unseal and release the grand jury transcript, and

for bail.    We also deny her motions to expedite.             We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   the    court   and

argument would not aid the decisional process.


                                                     AFFIRMED IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




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