                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                       ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                               July 28, 2005
                       Nos. 04-10651 and 04-10721
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                    D. C. Docket Nos. 97-00581-CR-JAL
                                 and 00-00036-CR-JAL

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

ISMAEL F. ARNAIZ,

                                                        Defendant-Appellant.


                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                     _________________________

                             (July 28, 2005)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
          Ismael Arnaiz pleaded guilty to one count each of conspiracy to launder

money, in violation of 18 U.S.C. § 1956(h), mail fraud, in violation 18 U.S.C.

§ 1341, criminal contempt, in violation of 18 U.S.C. § 401(3), and failure to

appear, in violation of 18 U.S.C. § 3146(a)(1). He was sentenced to 151 months

imprisonment. On appeal, Arnaiz challenges both his convictions and his sentence.

          In June 1994, Arnaiz was arrested for a parole violation. He was released

after he agreed to cooperate with the government in its investigation of a multi-

million dollar Medicare fraud scheme, in which he and a co-defendant were the

primary perpetrators. Before offering any assistance to the government, Arnaiz,

through counsel, entered into a limited-use immunity agreement.

          In April 1996, prior to any charges being brought against him, Arnaiz,

represented by his attorney, entered into a written plea agreement, in which he

agreed to plead guilty to a later indictment that would charge him with one count

of mail fraud and one count of money laundering. Arnaiz also agreed to cooperate

fully with the government by appearing at grand jury proceedings, hearings, and

trials.

          After Arnaiz testified before a grand jury in accordance with his plea

agreement, an indictment was returned in July 1997 charging Arnaiz with one

count of conspiracy to launder money and two counts of mail fraud. In May 1998,



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pursuant to the pre-indictment plea agreement, Arnaiz pleaded guilty to the one

count of conspiracy to launder money and one count of mail fraud. In return for

the plea, the government dropped the other mail fraud count.

      Arnaiz failed to appear at his scheduled sentencing hearing, on account of

his having been hospitalized for high blood pressure. As a result, the district court

rescheduled the sentencing hearing. Arnaiz again failed to appear, but this time the

district court issued a warrant for his arrest and an indictment was returned for one

count of criminal contempt, in violation of 18 U.S.C. § 401(3), and one count of

failure to appear, in violation of 18 U.S.C. § 3146. After a prolonged search,

Arnaiz was apprehended in April 2003, and eventually pleaded guilty to both the

contempt and failure to appear charges. The court consolidated the sentencing of

the fraud and money laundering convictions from 1998 with the sentencing of the

contempt and failure to appear convictions from 2003.

      Arnaiz filed a motion to withdraw his guilty plea, a motion to dismiss the

indictment, and a motion for a downward departure based on time served in an

unrelated case. The district court denied all three motions and sentenced Arnaiz to

151 months imprisonment.

                                          I.

      Arnaiz’s first argument on appeal is that the district court erred by denying



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his motion to withdraw his guilty plea and his motion to dismiss the indictment.

The denial of motions to withdraw and motions to dismiss are reviewed for abuse

of discretion. See United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003);

United States v. Noriega, 117 F.3d 1206, 1211 (11th Cir. 1997).

      As for the motion to withdraw, Arnaiz argues that his trial attorney

improperly advised him to plead guilty to an indictment that was, Arnaiz says,

based entirely on his own immunized testimony. 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). Although this portion of the rule is to be liberally construed, “there is

no absolute right to withdraw a guilty plea prior to imposition of a sentence.”

United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1998). 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) whether judicial resources would be conserved; and (4)

whether the government would be prejudiced if the defendant were allowed to

withdraw his plea.” Id. at 471–72 (internal citations omitted).



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      In ruling on Arnaiz’s motion to withdraw his guilty plea, the district court

went through the Buckles factors. Specifically, the court found that Arnaiz own

testimony indicated that he had close assistance of counsel. At the plea colloquy,

Arnaiz stated that he had discussed the plea agreement, and charges against him, at

length with his attorney. He further assured the court that he was satisfied with his

representation and had not been forced to plead guilty. As for whether the plea

was knowing and voluntary, Arnaiz testified that he had read the plea agreement,

fully understood its terms before signing, understood his rights and that he was

waiving those rights by pleading guilty, and understood the charges against him

and what the government would have to prove. With regard to judicial resources,

the district court noted that, given the complicated nature of the Medicare fraud

and money laundering scheme, a trial would be lengthy and complex.

      Further, as for prejudice to the government, the district court observed that

Arnaiz did not seek to withdraw his guilty plea until five years after he pleaded

guilty to the mail fraud and money laundering charges. Reassembling the evidence

after five years would be difficult for the government and witnesses crucial to the

government’s case may have forgotten important details or have become

unavailable. The district court went on the find that Arnaiz’s trial counsel was not

ineffective for advising him to plead guilty because there was sufficient evidence,



                                          5
independent of Arnaiz’s immunized testimony, to support the indictment. On this

record, the district court committed no error in denying Arnaiz’s motion to

withdraw his guilty plea.1

       With regard to Arnaiz’s motion to dismiss the indictment, because he

voluntarily pleaded guilty with the advise of competent counsel, he has waived any

non-jurisdictional challenges to his indictment. See United States v. Broce, 488

U.S. 563, 569, 109 S. Ct. 757, 762 (1989).

                                                 II.

       Arnaiz next argues that the government breached the terms of the plea

agreement by failing to recommend a sentence at the low end of the guideline

range and, instead, urging the court to impose the highest permissible sentence.

Arnaiz failed to raise this contention before the district court.

       “Whether the government has breached a plea agreement is a question of law

that we review de novo. If, however, the district court affords a defendant an

opportunity to object after the imposition of sentence, and he fails to do so, any

objections to the sentence are barred absent manifest injustice.” United States v.

Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). The manifest injustice inquiry is



       1
         Arnaiz also argues that the district court abused its discretion in denying his request for
an evidentiary hearing. The district court had sufficient evidence on which to base its ruling and
did not abuse its discretion by refusing to hold an evidentiary hearing.

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equated with a review for plain error. Id.

       “Under plain-error review, the defendant has the burden to show that there is

(1) error (2) that is plain and (3) that affects substantial rights. If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Monroe, 353 F.3d

1346, 1349 (11th Cir. 2003) (internal citations and quotations omitted).

       Contrary to Arnaiz’s assertions, the government upheld its end of the plea

agreement at sentencing. As specified by the agreement, the government reiterated

its recommendation for an acceptance-of-responsibility reduction and filed a

substantial-assistance motion. Though the government did advise the district court

that it was free to reject its recommendations, such a statement is in accord with the

plea agreement. Nothing the government did was in violation of the terms of the

plea agreement. Though we find it unlikely that Arnaiz would prevail on any of

the latter three prongs of the plain error test, it is unnecessary to reach those issues

because he has not demonstrated that there was an error.

                                            III.

       Arnaiz third argument is that district court erred by denying his motion for a

downward departure pursuant to U.S.S.G. § 5K2.0. Arnaiz’s motion asked that the



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district court reduce his sentence by the amount of time that he contends he was

illegally detained in an unrelated case. “[A] district court’s discretionary refusal to

depart downward is not appealable, unless the refusal was based on an erroneous

belief that the court did not have the statutory authority to depart from the

guideline range.” United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th

Cir. 1998).

      There is nothing in the record to indicate that the district court was unaware

of its authority to depart downward. Thus, we lack jurisdiction to review the

district court’s denial of Arnaiz’s motion. See id.

                                          IV.

      In his fourth issue on appeal, Arnaiz argues that the district court erred

during sentencing by attributing $24 million worth of loss to his Medicare fraud

scheme. Though Arnaiz concedes that he stipulated in the pre-indictment plea

agreement that the loss resulting from his fraud crime exceeded $20 million, he

nevertheless argues that his agreement to that amount was based on the misguided

advice of his trial counsel. As a result, he says, he should not have been held

accountable for that amount. He argues that the evidence does not support the

district court’s conclusion that the loss exceeded $20 million.

      The district court’s fraud loss calculation is a factual determination



                                           8
reviewable only for clear error. United States v. Renick, 273 F.3d 1009, 1025

(11th Cir. 2001). “The guidelines do not require the government to make a fraud

loss determination with precision; the figure need only be a reasonable estimate

given the information available to the government.” Id. at 1025. If challenged, the

government has the burden of coming forward with “reliable and specific

evidence.” Id. (quotation omitted). Overall, it must demonstrate its loss

calculation by a preponderance of the evidence. Id. at 1027.

      Several factors support the loss calculation in this case. First, Arnaiz

knowingly and voluntarily admitted in his plea agreement and at the plea colloquy

that the amount of loss involved in the fraud scheme was “more than $20 million.”

Arnaiz also admitted that the fraud scheme was “very lucrative” and yielded

“millions of dollars,” and that during one six-month period alone he had billed

Medicare for between ten and twenty million dollars.

      Furthermore, the government presented witnesses and exhibits at sentencing

to support the loss calculation. Those exhibits included checks signed by Arnaiz.

The government’s auditor testified that, in addition to the checks, he had six other

boxes with similar evidence indicating that the loss amount involved in the fraud

scheme amounted to $24 million.

      On this evidence, the district court’s loss calculation of $24 million was not



                                          9
clearly erroneous.

                                               V.

       Arnaiz next argues that the district court erred by requiring him to pay $24

million in restitution because there was no evidence that he had the ability to pay it.

However, “[u]nder the [Mandatory Victims Restitution Act of 1996], an award of

restitution is no longer discretionary. The district court must order restitution in

the full amount of each victim’s losses without consideration of the defendant’s

economic circumstances.” United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.

1998). The MVRA applies to orders of restitution for defendants whose

conspiracies began before, but ended after, the MVRA’s effective date of April 24,

1996. United States v. Futrell, 209 F.3d 1286, 1290 (11th Cir. 2000).

       Arnaiz pleaded guilty to engaging in a conspiracy to launder money between

May of 1994 through July of 1997. Because his conduct ended after the effective

date of the MVRA, its provisions are applicable to him. That the district court did

not specify which of the two counts the restitution is for makes no difference. The

two counts, and the money involved in them, are interrelated. The district court

did not err in its order of restitution.2


       2
         Arnaiz also argues that, if restitution was warranted under the MVRA, the district court
erred by not advising him at the Rule 11 colloquy that he might be responsible for restitution.
He is mistaken. The district court specifically advised Arnaiz that restitution could be ordered.
Plea Colloquy Tr. at 21.

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                                            VI.

       Arnaiz’s final contention is that he was sentenced in violation of United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). He argues both Booker

constitutional error because he was sentenced based on facts that were neither

proven to a jury nor admitted by him, and Booker statutory error because he was

sentenced under a mandatory guidelines regime. Because Arnaiz failed to raise

this issue before the district court, our review is only for plain error. United States

v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, ___ S. Ct. ___, 2005

WL 483174 (June 20, 2005). “An appellate court may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights. If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quotations and citation omitted).

       As for his assertion of Booker constitutional error, there was no error at all

because Arnaiz admitted both in his plea agreement and at the plea colloquy all of

the facts the district court used in calculating his sentence.

       By sentencing Arnaiz under a mandatory guidelines scheme, however, the

district court committed a Booker statutory error that is plain. See United States v.



                                            11
Shelton, 400 F.3d 1325, 1330–31 (2005). Arnaiz, however, has failed to

demonstrate that his substantial rights have been affected by the error, as required

by the third prong of the plain error test, Rodriguez, 398 F.3d at 1299. To carry his

burden, Arnaiz had to demonstrate that “there is a reasonable probability of a

different result if the guidelines had been applied in an advisory instead of binding

fashion by the sentencing judge in this case.” Id. at 1301. Arnaiz has presented no

evidence showing a reasonable probability that the district court would have given

him a lesser sentence had he been sentenced under an advisory guidelines regime.

                                         VII.

       Based on the foregoing, Arnaiz’s appeal is dismissed as to his challenge of

the district court’s denial of his motion for a downward departure and affirmed in

all other respects.

       DISMISSED IN PART, AFFIRMED IN PART.




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