                          Revised May 2, 2000

                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                             No. 98-60735


                      UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                    v.

                            CURTIS GLINSEY,

                                                   Defendant-Appellant.



        Appeal from the United States District Court for the
                   Northern District of Mississippi


                            April 10, 2000

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.

EDITH H. JONES, Circuit Judge:

            Curtis Glinsey (“Glinsey”), federal prisoner #10779-042,

appeals from the judgment and sentence entered by the district

court   after   Glinsey   pled   guilty   to   illegally   acquiring   and

redeeming food stamps as well as attempting to tamper with a

witness.    Having reviewed the record and briefs, this court finds

error only because Glinsey was misinformed by the district court at

his guilty plea hearing concerning the possibility and amount of

restitution that might be ordered.             We reduce the amount of
restitution to $1,000,000, and affirm the district court’s judgment

as modified.

                 I.   FACTUAL AND PROCEDURAL BACKGROUND

            According to the presentence report (“PSR”), federal

agents from the United States Department of Agriculture (“USDA”)

uncovered a possible conspiracy involving the unlawful acquisition

and redemption of food stamps by three businesses in Clarksdale,

Mississippi: New Eastgate Grocery, Roundyard Grocery, and One-Stop

Grocery.    Glinsey operated the New Eastgate Grocery and opened the

other two businesses under the names of individuals who had no

prior dealings with the food stamp program.            Derix Dugan (“Dugan”)

and Rodney Paden (“Paden”) reported that they were solicited and

paid by Glinsey to sign as the operators of Roundyard Grocery and

One-Stop Grocery, respectively. Glinsey also had each person apply

for a food-stamp license for his respective store.              In each case,

Glinsey either owned or leased the property on which the business

operated.     Dugan testified that Glinsey gave him money for the

purpose of illegally purchasing food stamps; Paden claimed that he

never worked at One-Stop and went there only to receive cash

payments from Glinsey for the use of Paden’s name on the business.1



      1
            The government’s investigation revealed that various steps were taken
to avoid detection.    For example, stores with a food-stamp license must be
recertified after approximately 10-12 months of operating under the license. In
order to pass recertification, a business would have to show that it had
purchased and then sold inventory equivalent to the amount of food stamps
redeemed. Thus, to avoid a recertification audit, Glinsey would simply shut down
one store and open another store under a new name.

                                       2
            In April 1997, USDA agents used undercover operatives to

make multiple controlled sales of food stamps to Glinsey and other

co-conspirators.      On April 8 and 9, Glinsey and Dugan made four

separate purchases of food stamps for discounted amounts of cash at

New Eastgate Grocery.        Other witnesses, who were cashiers at the

various stores, corroborated that Glinsey would purchase food

stamps illegally and then redeem the stamps through the various

businesses.2

            Sales tax and other records revealed that from June 1995

through    May   1997,    Glinsey   and       his   co-conspirators   illegally

redeemed approximately $1,506,128 in food stamps through the three

businesses. During this same period, the businesses reported gross

sales of only $239,810.94, for a difference of $1,266,317.06.                 For

sentencing purposes, Glinsey was determined to have purchased and

redeemed between $800,000 and $1.5 million in food stamps.

            As part of their investigation, USDA agents recruited

Dugan to testify against Glinsey.             After learning that Dugan would

assist the government, Glinsey attempted to have Dugan killed.                 He

offered Michael Ratliff (“Ratliff”) $10,000 to arrange the murder.

Ratliff    secretly      recorded   his       conversation   with   Glinsey   and

eventually made the tape available to the government.



      2
            One of the cashiers, Delandra Counsolor, stated that Glinsey told her
not to deal directly with food stamp recipients who came into the store to sell
their food stamps. She was directed to send the recipient to the back of the
store to meet with Glinsey personally. Another cashier, Mary Jenkins, testified
that very few food stamps were taken for eligible food items.

                                          3
             Shortly    before   trial,       Glinsey     pled     guilty      to   a

superseding indictment charging him with conspiracy to acquire and

redeem   food    stamps   unlawfully,       unlawful     acquisitions     of    food

stamps, and unlawful redemption of food stamps.                    As part of his

plea agreement, Glinsey also waived indictment on, and pled guilty

to, a one-count information charging him with attempted witness

tampering.

             Given his participation in the conspiracy, Glinsey’s base

offense level was 6 under U.S.S.G. § 2F1.1(a).                Eleven levels were

added because the amount of loss was between $800,000 and $1.5

million.      § 2F1.1(b)(1)(L).         Two levels were added since the

offense involved more than minimal planning. § 2F1.1(b)(2)(A).

Four more levels were added for Glinsey’s leadership role in the

criminal activity, which involved more than five participants or

was   otherwise    extensive.    §   3B1.1(a).         The    probation     officer

recommended that Glinsey’s offense level be increased by two for

his obstructive behavior and, in particular, his attempt to have

Dugan killed.      From the adjusted level of 25 for the food stamp

offenses,3      three   levels   were       subtracted       for   acceptance       of

responsibility.     Glinsey’s final offense level was 22, which, with

a category I criminal history, put the imprisonment range at 41 to

51 months.



      3
            Since the offense level for witness tampering was five levels lower
than that for the food stamp violations, the food stamp guidelines applied for
sentencing purposes. U.S.S.G. §§ 3D1.2(c), 3D1.3(a).

                                        4
              The district court denied Glinsey’s objections to the PSR

and sentenced him to 51 months on each count of conviction, with

the terms to run concurrently.              The district court also ordered

restitution in the amount of $1,266,317.06 pursuant to 18 U.S.C. §§

3563, 3583.      No fine was imposed.          Glinsey timely appealed the

effectiveness of his counsel, the imposition of restitution, the

manner   in    which   his   offense    level     was   calculated,   and   the

voluntariness of his plea.

                               II.     ANALYSIS

              Glinsey argues that he should be allowed to withdraw his

guilty plea for several reasons: (1) his counsel was ineffective,

(2) the district court violated Rule 11 by ordering restitution

without informing him that restitution was possible, (3) his

sentence was improperly enhanced since he was not a leader in a

conspiracy, and (4) his plea was involuntary. Although issues (1),

(2) and (4) overlap, we review each issue in turn.4

1.    Ineffective assistance of counsel

              Glinsey raises his ineffective assistance of counsel

claim for the first time on appeal.               Glinsey contends that his

attorneys were ineffective for two reasons: (1) failing to move to

suppress an audio tape implicating Glinsey in an attempt to have


      4
            We review questions of law de novo. United States v. Rico, 51 F.3d
495, 500 (5th Cir. 1995). The district court’s factual findings are reviewed for
clear error. United States v. Howard, 106 F.3d 70, 73 (5th Cir 1997). Since
Glinsey is proceeding on appeal pro se, this court must construe his claims
liberally rather than holding him to the standards expected of lawyers. See
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972).

                                        5
Dugan murdered, and (2) failing to investigate different methods of

calculating loss used in other food stamp cases.5

            A voluntary guilty plea waives all nonjurisdictional

defects in the proceedings against the defendant.               United State v.

Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991).                     This includes

claims of ineffective assistance of counsel except insofar as the

ineffectiveness     is   alleged   to       have   rendered   the    guilty   plea

involuntary.        Unsurprisingly,         Glinsey   asserts       exactly   this

connection between counsel’s alleged errors and his guilty plea.

And although we ordinarily review a claim of ineffective assistance

raised on direct appeal “only in rare cases where the record

allowed us to evaluate fairly the merits of the claim,” United

States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), this is such

a rare case, since the record clearly belies Glinsey’s claims.

            In order to establish ineffective assistance of counsel,

Glinsey must show that (1) his counsel’s performance was deficient

in that it fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced his defense.                  Strickland

v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 2065-68

(1984).    With respect to guilty pleas, the prejudice requirement

“focuses    on    whether    counsel’s        constitutionally        ineffective

performance affected the outcome of the plea process.”                   Hill v.


      5
            Glinsey also argues that his counsel was ineffective for not
informing the district court of a proposed amendment to the sentencing
guidelines. Since sentencing courts must apply the guidelines in effect at the
time of sentencing, 18 U.S.C. § 3553(a)(4)(A), Glinsey’s claim is without merit.

                                        6
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985).                           Thus,

Glinsey “must show that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.”                  Id.

       a.      Motion to suppress the audio tape

               Glinsey     avers    that     his    counsel   was     ineffective   for

failing to move to suppress the audio tape in which Glinsey was

caught trying to arrange the murder of Dugan.                       Glinsey contends

that the tape was inadmissible under Title III of the Omnibus Crime

and Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(2)(d),

since Ratliff made the tape for the purpose of extorting money.

               At the time Glinsey entered into the plea agreement, the

food       stamp   trial   was     roughly    two    weeks    away.      Although   the

attempted witness tampering had already occurred and Glinsey’s bond

had been revoked partly for that reason,6 no charge of attempted

witness tampering had yet been filed.                    Since a motion to suppress

the tape would have been premature as to a witness tampering

charge, and the tape was irrelevant to the food stamp crimes,

Glinsey’s counsel had no forum and no opportunity to move to

suppress.          Counsel was not ineffective for failing to move to

suppress.

               Furthermore, Glinsey does not show that he was prejudiced

by his attorney’s omission.             A transcript of the tape was offered

       6
            The court also based revocation of the bond on Glinsey’s possession
of a firearm.

                                             7
at the bond revocation hearing, where Ratliff (who had made the

tape) testified under oath to the events surrounding Glinsey’s

attempt     to    have   Dugan   murdered,   including   the   recorded

conversation. Glinsey does not claim, nor does the record support,

that his attorney was deficient in not objecting to this testimony.

The merely cumulative transcript of the tape recording was not

constitutionally prejudicial to Glinsey.

       b.   Failure to investigate loss calculation

            Glinsey also contends that his counsel was ineffective

for failing to investigate cases that would show that the district

court overstated its loss calculation. To establish his failure to

investigate claim, Glinsey must allege with specificity what the

investigation would have revealed and how it would have benefitted

him.    United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).

He must also show a reasonable probability that, but for counsel’s

unprofessional errors, the sentence would have been significantly

less harsh.      Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).

            Glinsey fails to make this showing for two reasons.

First, a district court’s loss determination under § 2F1.1(b)(1) is

a factual finding reviewed for clear error.          United States v.

Oates, 122 F.3d 222, 225 (5th Cir. 1997).        The loss calculation

need not be precise and will be affirmed so long as it reasonably

estimates the loss using reasonably available information.       See §

2F1.1, cmt. n.8. Accordingly, “the court can adopt facts contained



                                    8
in   a   PSR    without     inquiry,   if    those    facts    had   an   adequate

evidentiary basis and the defendant does not present rebuttal

evidence.”       United States v. Puig-Infante, 19 F.3d 929, 943 (5th

Cir. 1994).          If no relevant affidavits or other evidence is

submitted to rebut the information in the PSR, the district court

is free to adopt the PSR findings without further inquiry or

explanation.         United States v. Mir, 919 F.2d 940, 943 (5th Cir.

1990).    The defendant bears the burden of demonstrating that the

information in the PSR is materially untrue.                   United States v.

Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990).                 Glinsey has not

carried this burden.

               The district court calculated Glinsey’s loss based on the

total amount of food stamps redeemed ($1,506,128) less the reported

gross sales ($239,810.94), for a total of $1,266,317.06. Glinsey’s

offense level was increased by eleven because the loss was found to

be between $800,000 and $1.5 million. § 2F1.1(2)(A). Glinsey does

not dispute the finding that he illegally purchased and redeemed

over $1.2 million in food stamps.              At the hearing, his counsel

argued that the amount of money paid by Glinsey to purchase the

food stamps, typically 70-80 percent of the value of the stamps,

should have been subtracted from the face value of the food stamps

to arrive at the total loss.

               But   no   other   evidence   was     offered   to    support   this

contention.      The cases Glinsey cites do not show that the district



                                        9
court’s reliance on the actual amount of food stamps purchased and

redeemed is unreasonable.           This court has rejected the argument

that restitution is limited to the amount of profit made in the

illegal food stamp fraud scheme.             See United States v. Lewis, 104

F.3d       690   (5th   Cir.   1996).   Lewis    held   that   the   amount   of

restitution should be the full face value of the food stamps for

which the defendant illegally obtained cash redemptions from the

USDA.       Id. at 692-93.     As this is the amount used by the district

court, there was no error.

                 Second, the cases cited by Glinsey do not support his

assertion that the district court’s loss calculation was erroneous.

In fact, in two of the cases he cites, the courts determined the

loss based on the face value of the food stamps that were illegally

obtained and redeemed, which was the method used by the district

court in this case.7

                 Neither branch of Glinsey’s ineffectiveness claim is

sustainable.

2.     Appropriateness of ordering restitution

                 Glinsey argues that the district court erred in ordering

restitution since neither the plea agreement nor the rearraignment

colloquy mentioned the possibility of restitution, though he was

told he could face a fine of up to $1 million.



       7
            See United States v. Cheng, 96 F.3d 654, 656-57 (2d Cir. 1996);
United States v. Barnes, 117 F.3d 328, 334-35 (7th Cir. 1997).

                                        10
            Under 18 U.S.C. § 3663(a)(1)(A), a sentencing court may

order restitution if, as in the present case, a loss was sustained

by the victim as a result of an offense.              The court’s authority

exists   notwithstanding    the     lack   of   an   agreement   between       the

prosecution    and   defense   on    restitution.          Compare   18   U.S.C.

§ 3663(a)(3).

            To confirm the voluntariness of a guilty plea, Rule 11

requires, among other things, that the district court “address the

defendant personally in open court and inform the defendant ...,

when applicable, that the court may also order the defendant to

make restitution to any victim of the offense.”              Fed. R. Crim. P.

11(c)(1).     In reviewing whether the district court complied with

Rule 11, this court “conduct[s] a straightforward, two-question

‘harmless error’ analysis: (1) Did the sentencing court in fact

vary from the procedures required by Rule 11, and (2) if so, did

such variance affect substantial rights of the defendant?”                United

States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993)(en banc); see

also Fed. R. Crim. P. 11(h)           This court’s inquiry may include

reviewing   the   written   plea    agreement,       the   transcript     of   the

sentencing hearing, and the sentence actually imposed.               Johnson, 1

F.3d at 298. A “substantial right” is violated if “the defendant’s

knowledge and comprehension of the full and correct information




                                      11
would have been likely to affect his willingness to plead guilty.”

Id. at 302.8

            Glinsey was not informed of the possibility of paying

restitution in the plea agreement or at the rearraignment colloquy.

Thus, the district court unfortunately varied from the procedures

required by Rule 11.          However, this is only one prong of the

Johnson analysis. Glinsey must also show that the district court’s

variance affected his substantial rights.

            Toward this end, Glinsey relies on United States v. Corn

(a pre-Johnson case) to argue that the district court’s ordering

restitution without prior notice affected his substantial rights.

836 F.2d 889 (5th Cir. 1988).          In Corn, after pleading guilty to

contempt, the defendant was ordered to pay over $6 million in

restitution.      The defendant received no notice at the guilty plea

hearing that restitution might be ordered.          Id. at 895.    This court

reversed    the    district    court   because     “the   imposition     of   a

restitution order in so large an amount, without explicit prior

notice of the possibility of restitution, could scarcely be deemed

either harmless or not to affect the defendant’s substantial

rights.” Id. at 895.       On remand, the district court was instructed




      8
            Although Glinsey failed to raise his Rule 11 claim below, according
to our caselaw, we do not review it for plain error. See United States v. Reyna,
130 F.3d 104, 107 n.2 (5th Cir. 1997); United States v. Still, 102 F.3d 118, 122
n.9 (5th Cir. 1996), cert. denied, 522 U.S. 806, 118 S.Ct. 43 (1997).        But
compare United States v. Ulloa, 94 F.3d 949, 955 (5th Cir. 1996) (opinion of one
judge).

                                       12
to sentence the defendant without imposing restitution or to allow

the defendant to withdraw his guilty plea.9

            Unlike Corn, where the defendant knew only that he faced

some fine or other, Glinsey pled guilty after the court’s warning

that he could be fined up to $1 million.               But, in lieu of the

maximum fine, the district court imposed restitution in the amount

of $1,266,317.06.10      Thus, under Johnson, the question is whether

Glinsey’s knowing about the roughly $266,000 difference (between

the amount of the possible fine he was informed of and the

restitution actually ordered) would have affected his willingness

to plead guilty.

            Even assuming that the roughly $266,000 difference might

have affected his decision to plead guilty, the judgment need not

be vacated.    We may reduce the order of restitution to $1 million,

an amount that does not infringe his substantial rights.                Glinsey

is not prejudiced so long as his liability does not exceed the

maximum amount that the court informed him could be imposed as a

fine.      It is the amount of liability, rather than the label

‘restitution,’ that affects Glinsey’s substantial rights. “Whether

      9
            See also United States v. Showerman, 68 F.3d 1524, 1528 (2d Cir.
1995)(holding that the failure to mention the possibility of restitution at the
Rule 11 hearing is not harmless error even if the restitution imposed is less
than the maximum fine the defendant understood he might receive). The Second
Circuit’s analysis constitutes the minority position on this issue.
      10
            After ordering restitution, the district court stated that “[N]o fine
is being ordered due to the defendant’s inability to pay, and the -- or order
here concerning restitution.” A fair reading of this quote in context shows that
the district court felt Glinsey would not be able to pay a fine above and beyond
the restitution order. Thus, only restitution was ordered.

                                       13
the   amount   to    be   paid   is   classed   as   restitution    or    a   fine

ordinarily makes little difference in its bite, and warning of one

but not the other does not require collateral relief.”                     United

States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990).                     Although

Stumpf concerned collateral (as opposed to direct) relief, the

reasoning is the same in the present case.                Under the modified

judgment, Glinsey is obliged to pay no more than he was warned of

at the time of his guilty plea.          This modification reconciles the

court’s    failure    to    advise    Glinsey   of    restitution    with      its

offsetting warning of his exposure to a fine.

            In so holding, this court follows the approach adopted by

the First Circuit in United States v. Padin-Torres, 988 F.2d 280,

283-85 (1st Cir. 1993)(reducing the restitution order to the

maximum fine amount which the defendant was warned about at his

plea hearing).        This approach is also consistent with similar

decisions of six other circuits.11

            Moreover, Glinsey has not suggested why having to pay

restitution of $ 1 million as opposed to a fine of $1 million would

“affect his willingness to plead guilty.”             Johnson, 1 F.3d at 302.

Nor do we find any reason in the record.             Although restitution was

not mentioned in the plea agreement or at the hearing, Glinsey



      11
            See United States v. McCarty, 99 F.3d 383, 386 (11th Cir. 1996);
United States v. Gabriele, 24 F.3d 68, 70-71 (10th Cir. 1994); United States v.
Fox, 941 F.2d 480, 484 (7th Cir. 1991); United States v. Crawford, 169 F.3d 590,
592 (9th Cir. 1999); United States v. Miller, 900 F.2d 919, 921 (6th Cir. 1990);
United States v. Fentress, 792 F.2d 461, 465-66 (4th Cir. 1986).

                                        14
stipulated that he participated in a conspiracy exceeding $1

million, and he was aware that restitution might be imposed.                The

presentence report stated that “restitution may be ordered in this

case ... in the amount of $1,266,317.06 ...” and that “[i]n

accordance    with    the   provisions      of   U.S.S.G.    Section    5E1.1,

restitution shall be ordered.”             ¶¶ 100, 101.     Glinsey and his

attorney both certified that they had read the report, and neither

objected to the possibility of having to pay restitution.                    In

contrast, Glinsey vigorously challenged the amount of restitution.

These facts reinforce our conclusion that Glinsey’s having to pay

restitution in the amount of $1 million, instead of a fine, would

not have affected his willingness to plead guilty so long as his

total liability does not exceed the maximum fine that could have

been imposed.

            This court, therefore, modifies the restitution amount to

$1 million.

3.    Glinsey’s leadership role in the conspiracy

            Glinsey    contends    that    the   district   court   erred    in

adjusting his sentencing level upward for his leadership role in

the offense under U.S.S.G. § 3B1.1(a).12            Glinsey avers that the

evidence was insufficient to show that five participants were

involved or that the food stamp scheme was otherwise extensive.              In


      12
            Glinsey also argues that the district court erred in enhancing his
offense level for obstruction of justice and more than minimal planning. Glinsey
did not raise the objection below, so this court reviews for plain error. United
States v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992). None exists.

                                      15
particular, Glinsey challenges the district court’s finding that

the store cashiers, Jenkins and Counsolor, were participants.

              This   court     reviews        a    district      court’s   factual

determinations in sentencing under no less generous a standard than

that of clear error.         United States v. Ronning, 47 F.3d 710, 711

(5th Cir. 1995).        In determining whether the defendant had a

leadership (as opposed to a supervisory) role, the sentencing court

should consider the following factors:

              the exercise of decision making authority, the
              nature of participation in the commission of
              the offense, the recruitment of accomplices,
              the claimed right to a larger share of the
              fruits   of   the   crime,   the   degree   of
              participation in planning or organizing the
              offense, the nature and scope of the illegal
              activity, and the degree of control and
              authority exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4.         “A ‘participant’ is a person who is

criminally responsible for the commission of the offense, but need

not have been convicted.”         Id., cmt. n.1.13          All that is required

is that the person participate knowingly in some part of the

criminal enterprise.         United States v. Boutte, 13 F.3d 855, 860

(5th   Cir.    1994).     In    assessing         whether   an   organization   is

“otherwise extensive,” all persons involved during the course of

the entire offense are to be considered.”               U.S.S.G. § 3B1.1, cmt.

n.3. “Thus, a fraud that involved only three participants but used



      13
            “Offense” refers to the contours of the underlying scheme, which is
broader than the offense charged. United States v. Wilder, 15 F.3d 1292, 1299
(5th Cir. 1994).

                                         16
the unknowing services of many outsiders could be considered

extensive.”    Id.

            Even if Counsolor and Jenkins were not participants,

Glinsey still directed an “otherwise extensive” scheme to illegally

purchase and redeem food stamps.             Paden, Dugan, Counsolor, and

Jenkins all testified that Glinsey was the leader of the food stamp

operation and that he merely paid the others for the use of their

names or for their assistance.             As a result of this operation,

Glinsey kept most of the enormous profits for himself.            In light of

the record as a whole, Glinsey was involved in an “otherwise

extensive” scheme to defraud the government, and the district court

did not clearly err in adjusting Glinsey’s base level upward.14

4.    The voluntariness of Glinsey’s plea

            Glinsey contends that his guilty plea was not knowingly,

voluntarily, and intelligently entered because his plea agreement

did not state that restitution would be imposed; his counsel did

not investigate authorities dealing with loss calculation; and his

counsel failed to investigate a statutorily and factually supported

defense that would have prohibited the introduction of an illegally

obtained, inculpatory audio tape. As a result, Glinsey argues that

he should be allowed to withdraw his guilty plea.



      14
            This holding is consistent with Barnes, 117 F.3d at 336-38, in which
the Seventh Circuit upheld the leadership adjustment where the defendant had
organized and led an extensive food stamp scheme among his employees, exchanged
food stamps for cash with USDA undercover agents, and purchased food stamps with
his own money.

                                      17
            In general, “[t]here is no absolute right to withdraw a

guilty plea.”    United States v. Grant, 117 F.3d 788, 789 (5th Cir.

1997).     Prior to sentencing, “the court may permit the plea to be

withdrawn if the defendant shows any fair and just reason.”             Fed.

R. Crim. P. 32(e).       But “the standard for withdrawal of a guilty

plea after sentencing is considerably more stringent.          A defendant

seeking to withdraw a plea of guilty at the post-sentencing stage

is obligated to show ‘a fundamental defect which inherently results

in a complete miscarriage of justice’ or ‘an omission inconsistent

with the demands of fair procedure.’”          United States v. Hoskins,

910 F.2d 309, 311 (5th Cir. 1990)(quoting Hill v. United States,

368 U.S. 424, 428, 82 S.Ct. 468, 471 (1962)).

            The stringent test for overcoming a guilty plea after

sentencing is not satisfied here.          Glinsey has not asserted his

innocence and has delayed in moving to withdraw his plea.             He was

represented by counsel at every stage of the proceedings in the

district court.    The district court accepted his guilty pleas only

after addressing Glinsey personally in open court pursuant to Rule

11   and   determining   that   he   had   reviewed   the   plea   agreement

completely and was voluntarily entering his plea.              These facts

suggest that Glinsey is not even entitled to withdraw his plea




                                     18
under Rule 32(e) yet alone the additional standards for withdrawing

a plea post sentencing.15

            Glinsey faces an additional problem.           He claims that his

plea was involuntary because his counsel was ineffective and the

district court      failed   to   warn     him   that   restitution      might   be

imposed.     We have rejected these contentions and modified the

restitution order consistent with Glinsey’s understanding of his

monetary exposure.      The plea cannot have been involuntary because

of non-existent or immaterial errors.

            The   contemporaneous      court     record   shows   that    Glinsey

voluntarily, knowingly, and intelligently entered his guilty plea.

At some point, Glinsey changed his mind about his plea, but “a mere

change of mind is insufficient to permit the withdrawal of a guilty

plea before sentencing, much less after sentencing.” United States

v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990).16




      15
            Under the more lenient standard of Rule 32(e), the district court
considers seven factors: “(1) the defendant has asserted his innocence; (2)
withdrawal will prejudice the government; (3) the defendant delayed in filing his
withdrawal motion; (4) withdrawal would substantially inconvenience the Court;
(5) close assistance of counsel was available to the defendant; (6) the plea was
knowing and voluntary; and (7) withdrawal would waste judicial resources.”
United States v. Brewster, 137 F.3d 853, 857 (5th Cir. 1998)(citation omitted).
      16
            See United States v. Hyde, 520 U.S. 670, 677, 117 S.Ct. 1630, 1634
(1997): “Were withdrawal automatic in every case where the defendant decided to
alter his tactics and present his theory of the case to the jury, the guilty plea
would become a mere gesture, a temporary and meaningless formality reversible at
the defendant’s whim. In fact, however, a guilty plea is no such trifle, but a
‘grave and solemn act,’ which is ‘accepted only with care and discernment.’”
(citations omitted).

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                        III.   CONCLUSION

          For these reasons, Glinsey’s judgment of conviction is

affirmed, and his restitution award is modified to $1 million.

AFFIRMED AS MODIFIED.




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