                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 23 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-5072
 v.
                                                  (D.C. No. 97-CR-114-K)
                                                        (N.D. Okla.)
 WILLIAM SCOTT SOURS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.




      On August 7, 1997, a grand jury indicted William Scott Sours on one count

of violating 18 U.S.C. § 2118(a) (robbery involving controlled substances) and 18

U.S.C. § 2118(c) (assault through use of dangerous weapon in violating

§ 2118(a)). On December 18, 1997, Sours pled guilty to the charge,



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
acknowledging inter alia that he had driven from Kansas City, Missouri, to Tulsa,

Oklahoma, robbed a pharmacy of over $500 worth of narcotics using a BB gun,

and returned to Missouri with the stolen drugs. After conducting a hearing

pursuant to Fed. R. Crim. P. 11, the district court accepted Sours’ plea. However,

on January 13, 1998, acting pro se, Sours moved to withdraw his guilty plea. 1 On

February 11, 1998, the district court conducted a hearing on the motion, at which

Sours was represented by counsel. Sours argued that he had a “fair and just

reason” for withdrawing his plea under Fed. R. Crim. P. 32(e) because he may

have an entrapment defense. 2 The district court denied the motion because Sours

had failed to introduce any evidence that either Charles Coffman or Barbara

Jett—two individuals who Sours alleged induced him to commit the robbery by

providing supplies and suggestions for the crime—was a government informant.

Subsequently, Sours moved for disclosure of the identity of an informant in his

case to determine whether the informant was either Coffman or Jett. The district

court denied the motion.

      At sentencing, the district court increased Sours’ base offense level by two-

points under U.S.S.G. § 2B3.1(b)(4)(B) because Sours’ offense involved the

      1
        Sours had an attorney who withdrew shortly after entry of the plea but
before his motion to withdraw his plea. Sours obtained another attorney after
filing the motion but before the hearing on the motion.
      2
       Rule 32(e) provides that “the court may permit the plea to be withdrawn if
the defendant shows any fair and just reason.” Fed. R. Civ. P. 32(e).

                                        -2-
physical restraint of two victims (the pharmacy employees) during the robbery.

The district court rejected Sours’ argument that robbery necessarily involves

restraint such that the adjustment would result in double-counting. The district

court also rejected Sours’ claim that 18 U.S.C. § 2118 exceeds Congress’

Commerce Clause power.

      Sours appeals, raising substantially the same claims as below. We affirm.

      First, Sours argues that the district court erred in refusing to allow him to

withdraw his guilty plea. Sours repeats his contention that he had a “fair and just

reason” to withdraw his plea under Fed. R. Civ. P. 32(e) because “he thought that

one or both of two individuals who induced him to commit the robbery may have

been informants and therefore entrapped him.” We reject this argument, finding

the district court within its discretion in denying Sours’ motion. See United

States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997) (“We . . . review the district

court’s denial of [a defendant’s Rule 32(e)] motion for abuse of discretion and

will not reverse absent a showing that the court acted ‘unjustly or unfairly.’”).

Under Rule 32(e),

      [t]he burden of demonstrating a fair and just reason rests with the
      defendant, based on the following considerations: (1) defendant's
      assertion of innocence; (2) resulting prejudice to the government; (3)
      defendant's delay in filing the withdrawal motion; (4) inconvenience
      to the court; (5) defendant's assistance of counsel; (6) knowledge and
      voluntariness of the plea; and (7) resulting waste of judicial
      resources.


                                         -3-
Graves, 106 F.3d at 343. Like the district court, we find fatal Sours’ failure to

proffer any evidence that either Coffman or Jett could have been government

informants, or that any government informant induced him to commit the robbery.

Without any evidence of government inducement, Sours would have no viable

defense of entrapment, and hence no reason, much less a fair and just reason, for

withdrawing his guilty plea. See United States v. Duran, 133 F.3d 1324, 1330

(10th Cir. 1998) (defendant must “present[] sufficient evidence to put the

affirmative defense of entrapment at issue,” including sufficient evidence that

defendant was “induced to commit the offense by government agents” (emphasis

added) (citations and quotations omitted)). Furthermore, we have reviewed the

district court’s analysis of the seven factors listed in Graves for making a Rule

32(e) determination, and find no “arbitrary, capricious, whimsical, or manifestly

unreasonable judgment” in the district court’s denial of Sours’ motion. See FDIC

v. Oldenbury, 34 F.3d 1529, 1555 (10th Cir. 1994) (quotations and citations

omitted) (defining abuse of discretion standard). We therefore affirm the district

court’s denial of Sours’ motion to withdraw his guilty plea.

      Second, Sours argues that the district court erred in refusing to order

disclosure of the identity of the informant in his case. We find no abuse of

discretion in the district court’s denial. See United States v. Martinez, 979 F.2d

1424, 1426 (10th Cir. 1992) (refusal to disclose identity of confidential informant


                                         -4-
reviewed for abuse of discretion). As an initial matter, we note that there is “no

fixed rule with respect to [whether] disclosure is justifiable. The problem is one

that calls for balancing the public interest in protecting the flow of information

against the individual’s right to prepare his defense.” Id. In this case, the

informant told the Kansas City Police that Sours was in possession of a large

amount of drugs, and the government averred it was unaware of any facts which

would support an entrapment defense. Additionally, the government informed the

district court that Sours had a history of hurting people and that he wished to

identify the informant for the purpose of exacting revenge. For his part, Sours

presented no reason for the disclosure other than mere speculation that the

informant may have been either Coffman or Jett. Because Sours had the burden

of demonstrating a need for disclosure, see id., and presented no evidence that the

informant did more than tip off the government, we cannot say that the public’s

interest in protecting the flow of information was outweighed by Sours’ bare

conjecture about his ability to raise an entrapment defense. Cf. id. (“At one

extreme [of the spectrum of disclosure cases] are the cases where the informant is

a mere tipster, and disclosure is not required. . . . Where the value of the

informer’s testimony remains speculative at best, we cannot say that the district

court erred by denying disclosure of the informer’s identity.”) Accordingly, we

affirm the district court’s denial of Sours’ motion to disclose the identity of the


                                         -5-
informant.

      Third, Sours claims that the district court erred in adding two points to

Sours’ criminal history level pursuant to U.S.S.G. § 4A1.1(d) for Sours’ status as

an escapee during the commission of the robbery. 3 Sours argues that the two-

point adjustment, “quite simply, is double counting,” because the district court

sentenced Sours to a consecutive sentence for the robbery pursuant to U.S.S.G.

§ 5G1.3(a), which requires that a sentence for an offense committed by an

escapee run consecutively to the undischarged term of imprisonment. Because

Sours did not object below to the PSR’s recommendation of the two-point

adjustment or the district court’s assignment of the two points at sentencing, we

review only for plain error. See United States v. Yarnell, 129 F.3d 1127 (10th

Cir. 1997). 4 After reviewing the record, we find no plain error in the district

court’s two-point adjustment pursuant to § 4A1.1(d). Cf. United States v.

Santana-Castellano, 74 F.3d 593, 599 (5th Cir. 1996) (affirming “the U.S.S.G. §

4A1.1(d) enhancement as well as the consecutive sentence pursuant to §

5G1.3(a)”).

      3
        U.S.S.G. § 4A1.1(d) provides for a two point increase in criminal history if
inter alia “the defendant committed the instant offense while under any criminal
justice sentence, including . . . escape status.”
      4
        We are not persuaded by Sours’ contention that he raised the objection at
the sentencing hearing in his mere request that the district court “have his time
[for the instant offense] run concurrently with the other things going on right
now.”

                                         -6-
      Fourth, Sours argues that the district court erred in adding two points to

Sours’ base offense level pursuant to U.S.S.G. § 2B3.1(b)(4)(B) for Sours’

physical restraint of the two pharmacy employees during the robbery by pointing

his BB gun and ordering the two victims to lie on the floor. 5 Sours argues that

the adjustment resulted in double-counting because “it is impossible to commit

the offense of conviction, [robbery of controlled substances involving assault by

use of a dangerous weapon], without restraining the victim.” 6 As did the district

court, we reject Sours’ claim under United States v. Fisher, 132 F.3d 1327 (10th

Cir. 1997). We do not believe that the physical restraint adjustment under

§ 2B3.1(b)(4)(B) would result in double-counting because “physical restraint is

not an element of the offense of robbery.” Id. at 1329. Moreover, we find no

force to Sours’ argument that an assault with a dangerous weapon under 18

U.S.C. § 2118(c) must involve restraint, as we can imagine situations where a

defendant in the course of a robbery assaults a victim with a dangerous weapon

without specifically attempting to hinder the victim’s movement. An example

would arise if Sours had pointed his BB gun at the employees and ordered them to

turn over their narcotics, but had not ordered them to lie still on the floor

      5
       U.S.S.G. § 2B3.1(b)(4)(B) provides for an increase of two points to the
base offense level if inter alia “any person was physically restrained to facilitate
commission of the offense.”

      Sours does not contend that he did not physically restrain the two
      6

pharmacy employees.

                                         -7-
afterwards. See id. at 1330 (“physical restraint occurs whenever a victim is

specifically prevented at gunpoint from moving, thereby facilitating the crime”

(emphasis added)). Accordingly, we reject Sours’ contention that the district

court’s two-point adjustment under § 2B3.1(b)(4)(B) for physical restraint

resulted in double-counting.

      Finally, Sours argues that 18 U.S.C. § 2118 exceeds Congress’ legislative

power under the Commerce Clause. He states that criminalizing the “robbing [of]

a drugstore with a BB gun . . . quite simply, is unconstitutional because the

Constitution makes no grant of power to Congress to outlaw such conduct.” We

reject this argument as meritless. Among other things, § 2118(a) criminalizes

robbery of controlled substances from persons registered with the DEA if “the

person who engaged in such taking or attempted such taking traveled in interstate

or foreign commerce or used any facility in interstate or foreign commerce to

facilitate such taking or attempt.” 7 In this case, Sours traveled interstate to rob


      7
       Specifically, § 2118(a) criminalizes robbery of a controlled substance from
a person registered with the DEA

      if (1) the replacement cost of the material or compound to the
      registrant was not less than $500, (2) the person who engaged in such
      taking or attempted such taking traveled in interstate or foreign
      commerce or used any facility in interstate or foreign commerce to
      facilitate such taking or attempt, or (3) another person was killed or
      suffered significant bodily injury as a result of such taking or
      attempt.
                                                                       (continued...)

                                         -8-
the pharmacy, and transported the stolen narcotics interstate. Consequently,

Sours’ conduct fell within the jurisdictional element of § 2118(a) assuring that his

particular conduct affected interstate commerce. Cf. United States v. Lopez, 514

U.S. 549, 561 (1995) (invalidating 18 U.S.C. § 922(q), the Gun-Free School

Zones Act, in part because it “contains no jurisdictional element which would

ensure, through case-by-case inquiry, that the firearm in question affects interstate

commerce”). Thus, we find § 2118(a), as applied to Sours, to be within

Congress’ legislative power under the Commerce Clause. Cf. United States v.

Wilson, 159 F.3d 280,286 (7th Cir. 1998) (upholding 18 U.S.C. § 922(g)(8)

because it “contains a jurisdictional element that brings it within Congress’ power

under the Commerce Clause). 8 We likewise find § 2118(c) constitutional in this

case, as it requires the commission of “any offense under subsection [2118(a)],”

and thereby incorporates the jurisdictional element of the § 2118(a) applicable to

Sours’ conduct. As a result, we reject Sours’ Commerce Clause challenge.

      The district court’s denial of Sours’ motion to withdraw his guilty plea, its


      (...continued)
      7

18 U.S.C. § 2118(a).
      8
        We recognize that Sours’ conduct also satisfies the monetary element of
§ 2118(a) criminalizing robbery of a controlled substance from a person
registered with the DEA if the amount robbed “was not less than $500” in value.
Since we find § 2118(a) within Congress’ commerce power as applied to Sours
because his conduct fell within the jurisdictional element of the statute, we need
not address whether the Commerce Clause permits Congress to criminalize
robbery of a controlled substance when only the monetary element is satisfied.

                                        -9-
denial of his request for disclosure of the informant’s identity, and its sentence

are all AFFIRMED.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                         - 10 -
