United States of America v. Stewart Lynn Oehler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEWART LYNN OEHLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00015-LHT)
Submitted: October 14, 2008 Decided: October 16, 2008
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas R. Wilson, GREEN & WILSON, P.A., New Bern, North Carolina,
for Appellant. Gretchen C.F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Stewart Lynn Oehler appeals from his conviction for
conspiracy to manufacture and to possess with intent to distribute
methamphetamine. On appeal, Oehler asserts that the district court
erred by relying on the facts in the presentence report to satisfy
the factual basis for his guilty plea. According to Oehler, the
lack of a specific overt act during the conspiracy time frame
rendered the factual basis insufficient. We affirm.
Federal Rule of Criminal Procedure 11(b)(3) requires that
the district court satisfy itself that there is a factual basis for
the plea prior to entering judgment. However, because Oehler did
not move in district court to withdraw his guilty plea, his
challenge to the adequacy of the Rule 11 hearing is reviewed for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). A district court may find the factual basis for the
plea “from anything that appears on the record,” and the court may
defer its inquiry until sentencing. Id. at 531 (holding that court
may satisfy factual basis requirement by examining presentence
report).
Here, Oehler stipulated that a factual basis existed and
agreed that the evidence in the presentence report could be
accepted and established a factual basis for the plea. The
presentence report showed that, from 2001 until 2007, Oehler
assisted with several methamphetamine laboratories, teaching others

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how to manufacture methamphetamine. He also regularly manufactured
methamphetamine and distributed it to others in the organization.
This factual description, to which Oehler specifically agreed, was
sufficient to establish a factual basis for a conspiracy charge.
Oehler finds fault in the fact that some of the specific
overt acts alleged in the presentence report took place at an
unspecified time between 2001 and 2002. While the indictment
alleged that the conspiracy operated from “in or around January
2002," the conspiracy statute, 21 U.S.C. § 846 (2000), does not
require the Government to prove an overt act. United States v.
Burns, 990 F.2d 1426, 1432 (4th Cir. 1993). Moreover, although
some of the acts may have predated January 2002, the “in or around”
language in the indictment requires only proof of a date reasonably
near the specified date. United States v. Queen, 132 F.3d 991, 999
(4th Cir. 1997). We find that the district court did not plainly
err in determining that the presentence report contained sufficient
information supporting all the elements of the charge to which
Oehler pled guilty.
Accordingly, we affirm Oehler’s conviction. We dispense
with oral argument, because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED

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