                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                       File Name: 09a0037p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 07-4108
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 STEPHANIE S. WOODS,
                                                  -
                                                 N
                  Appeal from the United States District Court
                   for the Southern District of Ohio at Dayton.
                 No. 06-00122—Walter H. Rice, District Judge.
                                    Argued: January 15, 2009
                             Decided and Filed: February 4, 2009
                 Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

                                       _________________

                                            COUNSEL
ARGUED: Anthony S. VanNoy, WRIGHT & VanNOY, Dayton, Ohio, for Appellant.
Brent G. Tabacchi, ASSISTANT UNITED STATES ATTORNEY, Dayton, Ohio, for
Appellee. ON BRIEF: Anthony S. VanNoy, WRIGHT & VanNOY, Dayton, Ohio, for
Appellant. Dwight K. Keller, ASSISTANT UNITED STATES ATTORNEY, Dayton, Ohio,
for Appellee.
                                       _________________

                                            OPINION
                                       _________________

       KENNEDY, Circuit Judge. Stephanie Woods pleaded guilty to conspiracy to
                              1
commit money laundering arising out of a mortgage fraud scheme and willful failure to
file income tax returns.2 The district court judge sentenced Woods to 30 months’


       1
           Pursuant to 18 U.S.C. § 1956(h) and 18 U.S.C. § 1957.
       2
           Pursuant to 26 U.S.C. § 7203.


                                                  1
No. 07-4108           United States v. Woods                                             Page 2


imprisonment on the money laundering count (Count One) and 12 months’
imprisonment for the tax counts (Counts Two through Six) to be served concurrently.
On appeal, Woods argues that: (1) she was entitled to an evidentiary hearing to
determine whether her plea agreement resulted from coercion or undue influence; and
(2) her sentence is unreasonable. For the following reasons, we affirm the judgment of
the district court.

                                      BACKGROUND

        From 2003 into 2005, Woods engaged in a mortgage fraud scheme, along with
other co-conspirators, in which, without the knowledge of the mortgage lender, she
provided down payments for persons purchasing homes in the Southern District of Ohio.
These monetary transactions involved criminally derived property originating from
previous acts of mortgage fraud, money laundering, and making false statements on
various HUD-1 settlement statements.3 In this way, Woods helped people purchase
homes who otherwise might not have received a mortgage from a lending institution, and
to return the favor, these people provided her with cash and non-cash compensation
under the table. Woods used the proceeds of this scheme to purchase two vehicles, a
2004 Infiniti sport utility vehicle and a 2003 Chevrolet pickup truck. The parties
stipulated in the plea agreement that the loss to the lending institutions amounted to
$399,000.

        From 1999 through 2003, Woods failed to file any personal income tax returns
with the Internal Revenue Service. In each of those five years, Woods received gross
income far in excess of $50,000.

        Woods conceded the accuracy of the facts detailed above. She acknowledged
that her plea was voluntary. However, on Thursday, August 9, 2007, before her
sentencing, set for Monday, August 13, Woods personally attempted to contact the
district court judge, via telephone, to discuss her plea. She states that she intended to tell


        3
        HUD-1 stands for Department of Housing & Urban Development Settlement Statements. A
HUD-1 settlement statement is a form that, upon the closing of a mortgage transaction, provides a
comprehensive list of incoming and outgoing funds.
No. 07-4108         United States v. Woods                                           Page 3


the judge that her attorney had coerced her into pleading guilty and that she did not agree
with the contents of the plea agreement. Woods was instructed by the judge’s secretary
to write a letter to the court to that effect, but the court never received any such letter,
nor does Woods allege that she sent such a letter.

        On the day of sentencing, Woods’s attorney reported that Woods wished to
withdraw her guilty plea on the money laundering count. The district court judge
indicated that he would talk with Woods to determine whether she wanted to withdraw
her plea, and that if she did, a motion would need to be filed. A number of conversations
then took place off the record. The attorneys at oral argument on appeal stated that the
district judge never spoke with Woods, but Woods’s attorney did speak further with her,
and she indicated her willingness to go forward with sentencing. Her attorney relayed
this information to the court. Woods does not allege that her attorney coerced her or lied
to the court at that time. No motion to withdraw Woods’s plea was ever filed, nor did
Woods object to the plea agreement at the sentencing hearing. Woods now appeals the
sentence that the district court judge proceeded to impose.

                                       ANALYSIS

I.      Withdrawal of Guilty Plea

        Rule 11(d) of the Federal Rules of Criminal Procedure allows a defendant to
withdraw a guilty plea “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.”
Typically, when a defendant wants to withdraw her guilty plea, she files a motion to
withdraw, through her attorney, and the district court judge decides whether to conduct
an evidentiary hearing to evaluate the merits of the defendant’s motion to withdraw. The
defendant is not entitled to an evidentiary hearing or the withdrawal of her plea as a
matter of right; both are within the wide discretion of the district court, which we review
for abuse of discretion. See, e.g., United States v. Triplett, 828 F.2d 1195, 1197-99 (6th
Cir. 1987).
No. 07-4108         United States v. Woods                                            Page 4


        Woods never requested an evidentiary hearing with respect to the withdrawal of
her plea. She never wrote a letter to the court as instructed, filed a motion with the court,
nor did she object in open court at her sentencing hearing. On the one hand, the record
does suggest a breakdown of the attorney-client relationship between Woods and her
counsel. Her counsel stated that he would discontinue his representation of Woods
following her sentencing. However, the record also discloses that, before the sentencing
hearing, the district court judge himself was solicitous of the possibility of an evidentiary
hearing if Woods did want to withdraw her plea by stating that he would “go out and talk
to her, [and] if she wants to withdraw her plea, then I have to hear from her.” He
continued to say that “if [Woods] wants to withdraw her plea, all or any part of it, then
[her counsel will] need to file a motion, [and] we’re going to have to set a hearing.” The
district court judge apparently did not speak with Woods, but the judge did not proceed
until Woods’s attorney indicated Woods’s willingness to go forward with sentencing.
Again, Woods does not allege that she was coerced by her attorney at that time.

        Woods never made a clear and unequivocal expression of her desire to withdraw
her plea; she merely expressed ambivalence with regard to her plea, by, on the one hand,
accepting the plea at the initial plea agreement hearing, indicating at sentencing through
her attorney that she would proceed with sentencing, and failing to object to her plea
agreement at sentencing, and, on the other hand, attempting to contact the court to
discuss her plea and indicating uneasiness with her plea agreement on the day of her
sentence. Therefore, in not holding an evidentiary hearing with regard to the withdrawal
of Woods’s plea agreement, the district court did not abuse its discretion.

II.     Sentence Reasonableness

A.      Amount of Loss

        The district court enhanced Woods’s guidelines calculation by twelve points
under U.S.S.G. § 2B1.1 for $399,000 in loss resulting from the mortgage fraud. The
parties stipulated to the $399,000 in loss as part of the plea agreement. Therefore,
Woods’s challenge to the use of that figure to enhance her sentence is unavailing. See
United States v. Newman, 148 F.3d 871, 876 (7th Cir. 1998). When arguing for the
No. 07-4108        United States v. Woods                                         Page 5


unreasonableness of the loss amount used in the enhancement, Woods points to
discussions the district court had with the attorneys regarding the amount of restitution
that the district court might order, not the amount of loss used for the purposes of a
sentencing enhancement under U.S.S.G. § 2B1.1. Restitution and amount of loss for the
purposes of U.S.S.G. § 2B1.1 are not the same. See United States v. Flowers, 55 F.3d
218, 221-22 (6th Cir. 1995). A challenge of the restitution figure here does not
constitute a challenge to Woods’s sentence because: (1) no restitution was ordered; and
(2) the amount of loss used to enhance Woods’s sentence can be a different figure. Here,
the parties stipulated to $399,000 as the amount of loss and therefore the enhancement
was reasonable.

       With respect to the tax loss, the district court suggested that it “may amount to
a half million dollars or more, not counting penalties and interest.” This corresponded
with a calculation made by IRS criminal agents, who estimated the tax loss at
$458,173.97 and recommended a base offense level of 20 pursuant to U.S.S.G. § 2T4.1.
But the amount the district court actually used on sentencing was $150,000, which
resulted in a base offense level of 16. Woods’s own accountant arrived at this figure,
which represented a number a third to a quarter of the amount estimated by the
government. The parties agreed to Woods’s accountant’s figure for the purposes of
sentencing. Thus, its use cannot be said to be unreasonable.

B.     Grouping

       U.S.S.G. § 3D1.2(c) provides for the grouping of counts “[w]hen one of the
counts embodies conduct that is treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of the counts.” The conduct relating
to Count One is completely different from the conduct relating to Counts Two through
Six. Underlying Count One is conduct amounting to fraudulent representations with
respect to mortgages, after which Woods used the proceeds to purchase vehicles. The
conduct underlying Counts Two through Six is the repeated failure to file income tax
returns with the IRS. The amount of loss with respect to Count One accounts for losses
that lending institutions took on defaults of mortgages that the respective institutions
No. 07-4108        United States v. Woods                                         Page 6


would not have made but for the down payments provided by Woods. The loss for the
purposes of Counts Two through Six measured revenue not received by the IRS that
Woods owed for income received over the five-year period. Indeed, to group the counts
would be to give in essence the same punishment to a person who committed money
laundering through mortgage fraud as a person who committed money laundering
through mortgage fraud and in addition did not pay taxes. See United States v. Martin,
363 F.3d 25, 42-43 (1st Cir. 2004) (refusing to group tax evasion counts with fraud
counts where “the fraud counts reflect Martin’s efforts to illegally divert funds through
a fraudulent scheme while the tax evasion counts reflect his failure to truthfully report
income”).

       For the foregoing reasons, we affirm the judgment of the district court.
