Case: 19-30407        Document: 00515527476             Page: 1      Date Filed: 08/14/2020




             United States Court of Appeals
                  for the Fifth Circuit                                       United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                                                               August 14, 2020
                                    No. 19-30407
                                                                                Lyle W. Cayce
                                  Summary Calendar
                                                                                     Clerk


 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Alvin Watts, III,

                                                               Defendant—Appellant.


                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                            USDC No. 3:16-CR-104-1


 Before Jolly, Elrod, and Graves, Circuit Judges.
 Per Curiam:*
         Alvin Watts, III, was convicted by a jury of conspiracy to possess,
 transport, and traffic in embezzled pre-retail medical products and stolen
 property, in violation of 18 U.S.C. §§ 371 & 2; trafficking in stolen and
 embezzled pre-retail medical products, in violation of 18 U.S.C. § 670(a)(3),


         *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
 not be published and is not precedent except under the limited circumstances set forth in
 5TH CIR. R. 47.5.4.
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                                  No. 19-30407


 (b)(1), (c)(2); transportation of stolen property, in violation of 18 U.S.C.
 § 2314; and receipt, possession, concealment, storage, and sale of stolen
 property, in violation of 18 U.S.C. § 2315, and sentenced within the advisory
 guidelines range to 108 months of imprisonment and a three-year term of
 supervised release. On appeal, Watts contends that: (1) the Government’s
 failure to correct allegedly false trial testimony regarding Broderick Landry’s
 and Francis Asiedu Debrah’s plea agreements constituted a violation of
 Napue v. Illinois, 360 U.S. 264 (1959); and (2) the district court erred by
 denying three objections to the presentence report (PSR) regarding the
 application of a 14-level increase for the amount of loss under U.S.S.G.
 § 2B1.1(b)(1)(H), a two-level increase for receipt of stolen property under §
 2B1.1(b)(4), and a two-level increase for obstruction of justice under
 U.S.S.G. § 3C1.1. Proceeding pro se, Watts also moves for reconsideration
 of a prior order denying his motion to proceed pro se.
        The Due Process Clause forbids the Government from knowingly
 using or failing to correct false testimony. See Napue, 360 U.S. at 269. To
 demonstrate a due process violation based on the Government’s failure to
 correct false testimony under Napue, Watts must demonstrate that: (1) the
 testimony was false, (2) the Government knew that the testimony was false,
 and (3) the testimony was material. United States v. Stanford, 823 F.3d 814,
 838-39 (5th Cir. 2016).
        Landry and Debrah were both asked what their understanding of the
 plea agreement was regarding promises made to them by the United States,
 and they both correctly responded that the Government agreed to drop some
 charges in return for their truthful testimony. While neither stated that the
 Government also promised that their testimony and statements would not be
 used against them if they cooperated and that the Government would inform
 the court of the extent and value of their cooperation at sentencing, their full
 plea agreements were introduced into evidence by the Government,



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                                    No. 19-30407


 including all of the Government’s agreements, and both witnesses agreed
 that these were their plea agreements. There is nothing to indicate that
 Landry’s and Debrah’s omissions were done “with the willful intent to
 provide false testimony, rather than as a result of confusion, mistake, or faulty
 memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). Moreover,
 “the Government can discharge its responsibility under Napue . . . to correct
 false evidence by providing defense counsel with the correct information at a
 time when recall of the prevaricating witnesses and further exploration of
 their testimony is still possible.” Beltran v. Cockrell, 294 F.3d 730, 736 (5th
 Cir. 2002). The Government corrected any errors by providing the full plea
 agreements, which included the full recitation of the promises made by the
 Government, to the defense before trial.
          Watts’s argument that the district court erred by overruling three of
 his objections to the PSR is likewise without merit. With respect to his first
 objection, we “must defer to a factual finding as to the amount of loss, but
 must consider de novo how the court calculated the loss, because that is an
 application of the guidelines, which is a question of law.” United States v.
 Lige, 635 F.3d 668, 671 (5th Cir. 2011) (internal quotation marks and citation
 omitted). There was no inconsistency between the district court’s ruling as
 to restitution and its ruling as to calculation of loss under § 2B1.1(b)(1)(H),
 and Watts fails to demonstrate any error as to the value or quantity of the
 drugs.
          As for his second objection, “[t]he district court’s determination that
 [Watts] was in the business of receiving and selling stolen property is a factual
 finding we review for clear error.” United States v. Simpson, 796 F.3d 548,
 554 (5th Cir. 2015). The district court, after consideration of the four non-
 exclusive factors set out in the commentary to the Guidelines, concluded that
 the enhancement should be applied. Watts fails to meaningfully dispute any




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 of the relevant facts, and the district court’s conclusion was not clear error.
 See id.
           Watts’s third objection is likewise without merit. A district court’s
 “factual findings, such as a finding of obstruction of justice, are reviewed for
 clear error.” United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.
 2008). Troy Taylor testified at trial that before the first trial setting in the
 case, Watts came to his home at night. Watts had found out that Taylor
 planned to testify against him and told Taylor “[t]ell me this ain’t true.”
 Watts promised Taylor that he would take care of Taylor’s family and
 finances if Taylor went to prison, which Taylor interpreted to mean that
 Watts would do so if Taylor opted not to testify and instead go to prison. The
 Guidelines and commentary “specifically allow for application of the
 enhancement to attempts by defendants to directly or indirectly threaten,
 intimidate, or influence a potential Government witness.” United States v.
 Searcy, 316 F.3d 550, 553 (5th Cir. 2002). While Watts argues that this was
 nothing more than a candid conversation between lifelong friends, it is not
 implausible that, as the district court found, that Watts’s comments to
 Taylor were an attempt to deter him from testifying at trial. Further, Landry
 and Taylor testified that Watts told them to lie to the police if they were
 pulled over while transporting the medication back to Louisiana, gave them
 a false alibi to use if they were stopped by the police, and gave Taylor a letter
 to give to his attorney which repeated this lie. This can form the basis for an
 obstruction of justice enhancement, see United States v. Milton, 147 F.3d 414,
 417-18 (5th Cir. 1998), and Watts does not address this basis for the
 obstruction of justice enhancement.
           Finally, we deny Watts’s motion for reconsideration. A judge of this
 court previously denied Watts’s motions to proceed pro se and defense
 counsel’s motion to withdraw as untimely because they were filed after
 defense counsel’s appellate brief. A defendant may not delay asserting his



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 right to proceed pro se on appeal until it interferes with the efficient
 administration of justice. United States v. Wagner, 158 F.3d 901, 902-03 (5th
 Cir. 1998). We have repeatedly, albeit in unpublished opinions, applied
 Wagner outside the context of motions to withdraw pursuant to Anders v.
 California, 386 U.S. 738 (1967), to deny motions to proceed pro se as
 untimely filed where they were filed after the merits brief. See, e.g., United
 States v. Schenck, 697 F. App’x 422, 424 (5th Cir. 2017) (applying Wagner to
 deny motion for appointment of substitute counsel as untimely because it was
 made after counsel filed a merits brief); United States v. Davis, 584 F. App’x
 274, 274 (5th Cir. 2014) (same); United States v. Sierra, 186 F. App’x 461,
 462 (5th Cir. 2006) (same). Although these opinions are not precedential,
 see 5TH CIR. R. 47.5.4, they are persuasive, see Ballard v. Burton, 444 F.3d
 391, 401 n.7 (5th Cir. 2006).
        Watts’s request was untimely because his motion to represent himself
 was not made until after his counsel filed an appellate brief. See Wagner, 158
 F.3d at 902-903. He does not cite any case in which counsel’s subsequent
 failure or refusal to file a reply brief altered this conclusion.
        AFFIRMED; MOTION DENIED.




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