United States v. Cothran

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-30743
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID LEE COTHRAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
August 8, 2002
Before DAVIS, SMITH, and BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
David Cothran pleaded guilty to one count
of mail fraud in violation of 18 U.S.C. §§ 1341
and 2. He attacks his conviction and sentence
on many grounds. Finding no error, we affirm.
I.
Cothran owned Capricorn Services, which
sold computers. The business fell on hard
times, and Cothran began defrauding his sup-
pliers. The government maintains that the
scope of his intentional fraud swept broadly;
Cothran states that his initial underpayments
and bad checks were accidental, and he began
defrauding his suppliers at a later date.
In 1996, Cothran paid two suppliers with
company checks drawn from closed accounts.
On November 5, 1996, he paid for a delivery
from Gateway Computers using a company
check for $14,022. On December 18 and 20,
he paid for deliveries from Micron Electronics

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2
with checks that totaled $10,281. When the
bank declined to honor the checks, vendors’
losses totaled $24,303.
In 1997, Cothran began ordering computers
and making only partial payments, failing to
pay for them altogether, paying with checks
drawn on a closed account, and eventually
forging vendor authorizations for delivery. On
March 5, 1997, he accepted a delivery from
Gateway Computers and wrote a check on a
closed account for $16,820. On March 28 and
May 14, 1997, he convinced EPS Technolo-
gies to ship him $33,799. worth of computer
equipment, for which he made only a partial
payment. On June 18 and July 29, 1997, he
convinced PC Connections to ship him
$45,088.75 worth of computer equipment, and
he made only partial payment. On July 3,
1997, Anson Computers, Inc., supplied him
with $10,670 of equipment, and Cothran never
paid. On July 29, he turned again to Gateway
Computers, who delivered equipment for a
cashier’s check in the amount of $5,796; after
receiving delivery, Cothran stopped payment
on the check.
In September or October 1997, Cothran
made a series of orders that, on their face, re-
quired him to deceive the vendor or carrier be-
fore taking delivery. The government alleges
that on September 12, 1997, Cothran began
actually forging the computer suppliers’
authorizations for him to pay by company
check. On September 12, 1997, a letter was
faxed from a company claiming to be Cyber-
Max Computer and authorizing United Parcel
Service (“UPS”) to accept payment by
company check. The government argues that
Cothran faxed the letter; Cothran claims that a
former employee, Ryan Anderson, sent the fax
and check.
Cybermax Computer delivered $46,533
worth of computer equipment in exchange for
a worthless check. Cothran admits that in Oc-
tober 1997, he faxed a forged authorization to
Federal Express on behalf of Midwest Micro,
which delivered $7,516.49 of computer
equipment, and Cothran tendered a check on
a closed account. In November 1997, Cothran
ordered $5,047 in equipment from Arlington
Computers, and the UPS delivery person
dropped off the computers without collecting
payment. Cothran did not ever tender the
money to Arlington Computers.
Cothran continued this pattern well into
1998. On January 14, 1998, Dell Computers
sent Cothran $29,253.12 worth of computers;
he disputed the price terms and failed to make
any payments. On March 31, 1998, Multi-
Tech delivered $15,007.80 in computer
equipment in exchange for a check drawn on
a closed account. On June 16, 1998, Federal
Express received a letter from a company
claiming to be Quantex Microsystems, Inc.,
and authorizing Cothran to pay by company
check. Quantex delivered $31,396 in
computer equipment and received a check on
a closed account in return. In June 1998, UPS
received a faxed letter purportedly from DTK
Computers, Inc., authorizing payment by com-
pany check. UPS delivered computer
equipment worth $11,060 in exchange for a
check drawn on a closed account.
II.
The grand jury returned a fourteen-count
superseding indictment charging Cothran with
mail fraud in violation of 18 U.S.C. § 1341
and 2. Cothran unsuccessfully moved to
dismiss counts 1-7 and 10-12 for failure to
state an offense against the United States. The
government then filed a bill of information
charging Cothran with one count of mail fraud.

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3
Cothran waived his right to indictment and
pleaded guilty to the bill of information,
whereupon the indictment was dismissed.
At sentencing, the court adopted the factual
findings and guideline application of the pre-
sentence report (“PSR”). The court classified
Cothran’s criminal history as category II and
calculated a total offense level of 13, yielding
a guideline range of 15-21 months’
imprisonment. The court sentenced Cothran
to 18 months’ imprisonment and a three-year
term of supervised release. As part of his
supervised release, the court forbade Cothran
from gambling and gave the probation office
permission to require substance abuse
treatment. The court also ordered Cothran to
pay $232,177.16 in restitution.
III.
Cothran argues that his indictment failed to
state an offense against the United States; he
did not voluntarily enter the plea bargain; his
counsel provided ineffective assistance; the
prosecution violated the Fifth Amendment’s
Double Jeopardy Clause; the prosecutor acted
vindictively and maliciously; and the United
States unlawfully seized evidence. We reject
each of these arguments in turn. Many are
waived.
A.
Cothran argues that many counts of the
indictment fail to state an offense against the
United States. Cothran, however, voluntarily
waived his right to an indictment when he
pleaded guilty and agreed to the bill of
information. Rule 7(b), FED. R. CRIM. P.,
permits the defendant to waive prosecution by
indictment, in open court, for an offense
punishable by a term of imprisonment of more
than one year. We repeatedly have upheld
defendants’ waivers of their right to
indictment.1
Relying on United States v. Meacham, 626
F.2d 503, 509-10 (5th Cir. 1980), Cothran
argues that the guilty plea does not waive his
right to challenge the sufficiency of the
indictment. We so held in Meacham, because
we classified as jurisdictional the requirement
that the indictment state an offense. Id. In
United States v. Cotton, 122 S. Ct. 1781, 1785
(2002), the Court held that defects in the in-
dictment are not jurisdictional. The Court ap-
plied plain error review because a defendant
had failed to challenge the sufficiency of the
indictment before or during trial. Id. at 1786.
Cotton demonstrates that standard waiver
principles apply to defects in the indictment.
Cothran’s guilty plea and waiver to the right of
indictment were knowing and voluntary, so he
waived any defects in the indictment.
B.
Cothran argues that he did not voluntarily
enter the plea bargain because his attorney im-
permissibly pressured him to accept the plea.
He did not attempt to withdraw his plea in the
district court and raises this argument for the
first time on appeal, so we review its
voluntariness for plain error. FED. R. CRIM. P.
52(b); United States v. Milton, 147 F.3d 414,
420 (5th Cir. 1998).
1 United States v. Gaudet, 81 F.3d 585, 590
(5th Cir. 1996) (holding that if defendant pleads
guilty to bill of information that supersedes the
indictment, his failure to understand indictment is
irrelevant); United States v. Moore, 37 F.3d 169,
173 (5th Cir. 1994) (“Defendant’s acquiescence in
the filing of their signed waiver amounted to a
waiver of indictment in open court.”); United
States v. Montgomery, 628 F.2d 414, 416 (5th Cir.
1980) (finding waiver voluntary).

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4
The defendant must enter the plea
agreement voluntarily. See Boykin v.
Alabama, 395 U.S. 238, 242-44 (1969). Rule
11(d), FED. R. CRIM. P., requires the court to
address the defendant in open court and
determine that the plea is voluntary and not the
result of unlawful force, threats, or promises.
The Supreme Court has defined a voluntary
plea:
A plea of guilty entered by one fully
aware of the direct consequences,
including the actual value of any
commitments made to him by the court,
prosecutor, or his own counsel, must
stand unless induced by threats (or
promises to discontinue improper
harassment), m isrepresentation
(including unfulfilled or unfulfillable
promises), or perhaps by promises that
are by their nature improper as having
no proper relationship to the
prosecutor’s business (e.g., bribes).
Brady v. United States, 397 U.S. 742, 755
(1970) (internal quotations omitted) (quoting
Shelton v. United States, 246 F.2d 571, 572
n.2 (5th Cir. 1972) (en banc), rev’d on other
grounds, 356 U.S. 26 (1958).
At the plea colloquy, Cothran stated that
his plea was free and voluntary and made with
the advice of counsel. He stated that he had
discussed the matters with his attorney, and he
said that he was satisfied with his attorney’s
advice. When the district court asked “Did
anybody lean on you, twist your arm, use un-
due persuasion to cause you to enter a plea of
guilty today?,” Cothran responded “no, sir.”
Reviewing courts give great weight to the
defendant’s statements at the plea colloquy.2
To counter his statements in open court,
Cothran alleges that the general mental strain
of the situation and his attorney’s heavy-
handed advice compromised voluntariness.
According to Cothran, on the day he was
scheduled to sign his plea agreement, he
changed his mind. The defense attorney in-
formed the United States and then warned
Cothran that “you have made it bad for
yourself”. The attorney had earlier told
Cothran that his own “opening statement will
convict you.” In response to his attorney’s
admonitions about the consequences of
pleading not guilty, Cothran reversed again
and decided to plead guilty.
A defense attorney should make informed
predictions about the consequences of either
pleading guilty or going to trial. We have held
that a defense lawyer’s stern warnings about
the client’s chances of success at trial, the po-
tential for prison time, and the lawyer’s
potential withdrawal do not compromise
voluntariness.3 Even if Cothran’s lawyer
2 Blackledge v. Allison, 431 U.S. 63, 73 (1977)
(“Solemn declarations in open court carry a strong
presumption of verity.”); United States v. Abreo,
30 F.3d 29, 31 (5th Cir. 1994) (placing great
weight on defendant’s statements at plea colloquy);
United States v. Madonado-Rodriguez, 64 F.3d
719, 733 (1st Cir. 1995) (giving credence to
finding, at plea colloquy, that defendant had not
been pressured rather than to defendant’s later,
self-serving statements).
3 Uresti v. Lynaugh, 821 F.2d 1099, 1101-02
(5th Cir. 1987) (finding plea voluntary where at-
torney warned client that he would be lucky to get
99 years if he went to trial and threatened to
withdraw if client pleaded not guilty); Jones v.
(continued...)

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5
warned that he would almost certainly lose at
trial and face a harsh sentence, these were
warnings, not threats. Cothran’s statements
during the plea colloquy should control.
Cothran also states that his counsel “told
[him] to sign [the] rule 11 package without
any consultation as to its content.” Cothran’s
position flatly contradicts the statements he
made at the plea colloquy. The court asked
Cothran whether he had consulted with his
lawyer about the plea, the bill of information,
and the constitutional rights that he was
waiving. Cothran responded that he had so
consulted with his lawyer. Once again, we
give the statements during the colloquy greater
weight than we give unsupported, after-the-
fact, self-serving revisions.
If, on the other hand, by the rather cryptic
statement in his appellate brief, Cothran means
that he did not have an opportunity to read the
plea or bill of information, then it is irrelevant.
We have held that a defendant’s after-the-fact
testimony that he did not read the plea is
irrelevant where the colloquy demonstrates
that he understood the plea. United States v.
Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
We reject Cothran’s arguments that he did not
enter the plea voluntarily.
Cothran also argues that his trial counsel
was constitutionally ineffective, both in
recommending a plea and in arguing his
sentence to the district court. Cothran states
that he sought to have his attorney removed.
Cothran’s counsel did move for removal in the
district court because of his client’s uncooper-
ativeness, but a transcript of that hearing was
not included in the record on appeal. We do
not know whether Cothran sought to have his
attorney removed for the same reasons that he
now claims his assistance to have been
ineffective.
We do not usually review claims of
ineffective assistance of counsel on direct
appeal, because the record is rarely sufficiently
developed to enable appellate review. United
States v. Jennings 891 F.2d 93, 95 (5th Cir.
1989). Where a defendant’s motion to remove
counsel does not raise the same grounds as
does the ineffective assistance claim, we will
not address the question on direct appeal.
United States v. Andrews, 22 F.3d 1328, 1345
(5th Cir. 1994). We therefore affirm the dis-
trict court’s assessment of Cothran’s plea as
voluntary, without prejudice to Cothran’s right
to raise an ineffective assistance of counsel
claim in a proceeding under 28 U.S.C. § 2255.
We do not mean to imply that such a claim
would have merit.
C.
Cothran argues that the federal prosecution
violates the Fifth Amendment’s Double
Jeopardy Clause. In April 2000, Cothran
pleaded guilty to attempted felony theft in
Louisiana state court and received a six-month
suspended sentence. In May 2000, the United
States indicted him for the same underlying
conduct.
Cothran’s guilty plea might not waive a
double jeopardy claim apparent from the rec-
ord and the face of the state and federal
indictments. A defendant who pleads guilty
may raise a double jeopardy claim on collateral
review if “the determination of that the second
indictment should not go forward should have
3(...continued)
Estelle, 584 F.2d 687, 689-90 (5th Cir. 1978)
(holding that defense counsel’s impatience and
stern demand for an answer were not enough to
make guilty plea involuntary).

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6
been made by the presiding judge at the time
the plea was entered on the basis of the
underlying record.” 4 This principle
presumably extends to direct review as well.
Cothran did not raise this argument in the
district court, so we review it only for plain
error. Milton, 147 F.3d at 420.
Two different sovereigns may prosecute a
person for a single act that violates their
respective laws. Heath v. Alabama, 474 U.S.
82, 88-89 (1985). Subsequent federal
prosecution might violate the Constitution
only if the “federal prosecution was a sham or
tool of the state prosecution.” United States
v. Moore, 958 F.2d 646, 650 (5th Cir. 1992).
The defendant bears the burden of proving that
one sovereign used another as a tool or sham.
United Sates v. Logan, 949 F.2d 1370, 1380
n.16 (5th Cir. 1991). Mere propinquity
between the state and federal prosecutions will
not satisfy the defendant’s burden. United
States v. Cooper, 949 F.2d 737, 751 (5th Cir.
1991).
Cothran alleges only that a single police
officer participated in both the state and
federal proceedings. He does not detail that
officer’s involvement and does not point to
specific portions of the record. Assuming the
truth of his allegations, they do not even begin
to satisfy his burden of proving that Louisiana
used the federal prosecution as a “tool or
sham.” Without more, a sovereign would not
sacrifice its independence by consulting
another state’s investigators and pooling
information.
D.
“A plea of guilty admits all the elements of
a formal criminal charge and waives all non-
jurisdictional defects in the proceedings
leading to conviction.”5 The plea waives
claims of governmental misconduct during the
investigation and improper motives for
prosecution. United States v. Owens, 996
F.2d 59, 60 (5th Cir. 1993). A guilty plea also
eliminates objections to searches and seizures
that violate the Fourth Amendment.6 We
therefore refuse to consider Cothran’s
arguments about the impropriety of the
investigation and search of his business.
IV.
Cothran argues that the district court
incorrectly calculated his criminal history
category, the amount of loss, and restitution.
He also avers that the district court erred by
failing to grant him a downward departure
based on family circumstances and by
attaching certain conditions to his supervised
4 United States v. Broce, 488 U.S. 563, 575
(1988); Taylor v. Whitley, 933 F.2d 325, 327
(“[A] defendant may assert in a collateral attack
that the face of the indictment or record against
him establishes that his convictions violate the
constitutional prohibitions against double
jeopardy.”).
5 United States v. Smallwood, 920 F.2d 1231,
1240 (5th Cir. 1991). See United States v. Bell,
966 F.2d 914, 915 (5th Cir. 1992) (collecting Fifth
Circuit cases).
6 United States v. Wise, 179 F.3d 184, 186 (5th
Cir. 1999) (“When the trial court denies a motion
to suppress and the defendant subsequently enters
an unconditional plea of guilty, the defendant has
waived the right to raise further objection to that
evidence.”); Franklin v. United States, 589 F.2d
192, 194-95 (5th Cir. 1979) (“Franklin’s claims
regarding Miranda warnings, coerced confessions,
perjury, and illegal searches and seizures are not
jurisdictional in nature and thus do not require our
consideration.”).

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7
release.7
We review de novo the application of the
sentencing guidelines, but we review factual
findings only for clear error. United States v.
Haas, 171 F.3d 259, 268 (5th Cir. 1999).
Cothran bears the burden of showing the in-
formation contained in the PSR “cannot be
relied on because it is materially untrue,
inaccurate, or unreliable.” United States v.
Londono, 285 F.3d 348, 354 (5th Cir. 2002)
(internal quotation and citation omitted). “In
general the PSR bears sufficient indicia of re-
liability to be considered as evidence by the
district court, especially when there is no evi-
dence in rebuttal.” Id. “Mere objections do
not suffice as competent rebuttal evidence.”
United States v. Lowder, 148 F.3d 548, 552
(5th Cir. 1998) (citation omitted).
A.
Cothran challenges the inclusion of two pri-
or offenses in the criminal history calculation.
The PSR recommended a single guideline
point for Cothran’s 1987 conviction in a Texas
court of unlawfully carrying a weapon.
Although the sentencing guidelines do not
augment a criminal defendant’s right to
collateral attack of past convictions,8 Cothran
now claims innocence.
Cothran states that he possessed a firearm
dealer’s license from the Bureau of Alcohol
Tobacco and Firearms. He claims that no lo-
cal or federal law makes it a crime to possess
a firearm with the proper authority in plain
view. He reasons that this makes the
conviction unconstitutional and permits him to
challenge it. Cothran, however, did not raise
this argument in his objections to the PSR. He
has not provided any record evidence that he
had a federal license to sell firearms in 1987.
He offers zero proof to counter the state
court’s finding of guilt. That finding is
enough, absent evidence that the conviction
was reversed, vacated, or ruled
constitutionally invalid.
Cothran also argues that his guilty plea to
possession of marihuana should not be
included in the sentence calculations because
the county court sentenced him to deferred
adjudication. We have held that U.S.S.G.
§ 4A1.1(c) includes Texas’s deferred
adjudications, because the defendant enters a
guilty plea prior to the deferral. United States
v. Gooden, 116 F.3d 721, 724 (5th Cir. 1997);
United States v. Stauder, 73 F.3d 56, 57 (5th
Cir. 1996). We reject Cothran’s challenges to
the criminal history calculations.
B.
Cothran challenges the finding that his
fraud and relevant conduct caused a loss of
over $120,000. The PSR concluded that every
unpaid debt described grew out of an
intentional scheme to defraud vendors. As a
result, the PSR calculated the loss as
7 Cothran generally asserts that the district
court violated FED. R. CRIM. P. 32, erred in
focusing on relevant conduct, did not make specific
findings about the PSR, and made erroneous fac-
tual conclusions. Although we construe pro
se briefs liberally, these arguments are so con-
clusional as to be incomprehensible, so we consider
them not adequately briefed and abandoned. Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). We
address Cothran’s more specific arguments infra.
8 United States Sentencing Commission,
(continued...)
8(...continued)
GUIDELINES MANUAL, § 4A1.2, comment. (n.6)
(Nov. 2000).

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8
$282,290.16 and recommended an eight-level
enhancement under U.S.S.G. § 2F1.1(b)(1).
The guidelines recommend a seven-level
enhancement for a loss greater than $120,000.
At sentencing, the court concluded that,
although some of Cothran’s challenges might
have merit, they would not reduce the loss
amount below $120,000. The sentence of
eighteen months is at the high end of the
guideline range for fraud that creates a loss
greater than $120,000.
In calculating the loss or harm caused by
fraudulent conduct, the sentencing court
should make a reasonable estimate given
available information. U.S.S.G. § 2F1.1,
comment. (n.9). The court often will base that
estimate on the fair market value of the item
stolen or destroyed. U.S.S.G. §2F1.1,
comment. (n.8); United States v. Izydore, 167
F.3d 213, 223 (5th Cir. 1999) We give the
district court wide latitude to determination
the amount of loss. United States v. Alford,
142 F.3d 825, 831 (5th Cir. 1998). The
determination of the amount of loss is a factual
finding reviewed for clear error. United States
v. Glinsey, 209 F.3d 386, 393 (5th Cir.), cert.
denied, 531 U.S. 919 (2000).
Relevant conduct includes all actions and
omissions caused by the defendant or
undertaken in the commission of a criminal
scheme. U.S.S.G. § 1B1.3. We review for
clear error the classification of behavior as
relevant conduct. United States v. Peterson,
101 F.3d 375, 385 (5th Cir. 1996).
The court included two broad classes of
transactions to find that the total loss amount
was greater than $120,000: (1) Cothran
forged a letters from the vendor and faxed the
letters to the carrier to alter delivery terms and
create total losses of $96,505.49; (2) Cothran
paid with company checks drawn on a closed
business account and caused losses of
$56,130.80.
Cothran challenges only one of the
transactions in the first category. He argues
that one of his employees, ordered the
computer equipment, faxed the false approval
to the carrier, and wrote the check for $46,533
on the closed account. Cothran’s brief does
not provide record citations, and we cannot
find a copy of the computer equipment order,
fax, or check in the record. The court also
noted that it would be difficult to determine
who had actually written the fax, because the
signer forged the signature of another. The
PSR and the court concluded that Cothran’s
admissions that he used this scheme on
separate occasions sufficed to show his
involvement with this fraud. We cannot say
that the court committed clear error by holding
Cothran responsible, given that he did not
present any evidence.9
Cothran challenges the inclusion of all of
the checks drawn on closed accounts. He
points to Williams v. United States, 458 U.S.
279, 284-85 (1982), holding that 18 U.S.C.
§ 1014 does not proscribe passing a bad check
issued by a federally insured bank. The Court
noted that the check itself is not a
representation about the balance in the
account, and the bad check does not defraud
9 Cothran argues that the losses suffered by
Quantex should not be included because the gov-
ernment had launched a sting operation and there
was no risk of actual loss. This argument is friv-
olous; the guidelines permit the court to look to
intended loss, USSG § 2F1.1, comment. (n.8);
United States v. Moser, 123 F.3d 813, 830 (5th
Cir. 1997), and Cothran admitted this loss in his
guilty plea and admission to the bill of information.

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9
the financial institution. Id. The Court
emphasized that the government had not
established the defendant’s intent or a scheme
to defraud the bank. Id. at 286-87.
The government, however, did not charge
Cothran under § 1014 for defrauding banks
but under §§ 1341 & 2 for using the mails to
defraud the computer vendors. To convict un-
der these statutes, the government must prove
(1) that the defendant used the mail (2) to ex-
ecute a scheme to defraud (3) with the specific
intent to defraud. United States v. Tencer,
107 F.3d 1120, 1125 (5th Cir. 1997).
The district court concluded that
intentionally writing checks on closed accounts
was part of the larger fraudulent scheme,
where there also was evidence that Cothran
falsified faxes from the vendors. That scheme
defrauded the vendors out of their computer
equipment. In this case, unlike in Williamson,
the district court reasonably inferred both a
larger scheme to defraud and an intent to
defraud based on the offenses of conviction
and relevant conduct.10 Where the
government has proven the defendant had a
specific intent to defraud and used bad checks
as part of a broader scheme, we have upheld
sentences based on the value of the kited or
bad checks. United States v. Frydenlund, 990
F.2d 822, 825-26 (5th Cir. 1993) (calculating
loss based on total amount of overdraft
because the guideline looks to the immediate,
out-of-pocket loss caused).
Finally, Cothran levies a broad charge at
both categories of loss by arguing that the
court should have offset the loss amounts by
his partial, later payment. Payment of
restitution after the discovery of a fraudulent
scheme cannot reduce the loss amount.
United States v. Akin, 62 F.3d 700, 702 (5th
Cir. 1995). The district court did not commit
clear error by finding that Cothran’s criminal
scheme created at least $120,000 in losses.
C.
Cothran argues that the court set a grossly
excessive amount of restitution, $232,177.16.
We review de novo the legality of a restitution
award. United States v. Norris, 217 F.3d 262,
271 (5th Cir. 2000). If the award is legally
permitted, we review it only for abuse of
discretion. Id.
Cothran argues that because he pleaded
guilty to only one count of mail fraud, and the
bill of information listed only a single
fraudulent transaction in June 1998, his
restitution should be limited to the
consequences of that transaction. The Victims
and Witness Protection Act of 1982
(“VWPA”) requires restitution to the victim or
victims. 18 U.S.C. § 3663A(a)(1),
(c)(1)(A)(ii). In the case of an identifiable
victim, the court shall “order restitution to
each victim in the full amount of each victim’s
losses.” 18 U.S.C. § 3664(f)(1)(A).
Cothran relies on Hughley v. United States,
495 U.S. 411, 420 (1990) (“Hughley I”),
which held that where the defendant pleads
guilty to only one count, the VWPA limits res-
titution to the damage caused by that single
count. Congress subsequently amended the
VWPA to provide that where a defendant
pleads guilty to an offense involving a scheme,
conspiracy, or pattern of criminal activity, the
10 We have upheld a conviction under 18 U.S.C.
§ 1344 for attempting to issue checks on a non-
existent account where the government proved a
larger scheme and specific intent to defraud.
United States v. Church, 888 F.2d 20, 23-24 (5th
Cir. 1989).

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10
court may award restitution to any person
directly harmed by the course of conduct. 18
U.S.C. § 3663(a)(2); United States v.
Hughley, 147 F.3d 423, 437 (5th Cir. 1998)
(“Hughley II”). We have reconciled Hughley
I and the congressional amendments by
holding that where a fraudulent scheme is an
element of the conviction, the court may
award restitution for “actions pursuant to that
scheme.” United States v. Stouffer, 986 F.2d
916, 928 (5th Cir. 1993).
The bill of information describes the actions
that Cothran took to defraud Quantex in June
1998. On June 16, 1998, he used the names
Charles Johnson and Ram Technology to order
twenty computers from Quantex, which agreed
to ship the computers by Federal Express, cash
on delivery, with payment to be tendered by
cashier’s check. Cothran transmitted a fax
purporting to be from Quantex that permitted
payment with a personal or company check; he
then tendered a check on a closed account.
The indictment had described this as count 13
and “part of the scheme and artifice to
defraud.”
Although we sometimes have struggled to
define the outer bounds of a particular
fraudulent scheme, we have focused on the
actions alleged in the indictment and their
temporal scope.11 In this case, count 13 of the
indictment and the bill of information identified
only the fraud of Quantex in June 1998. On
the other hand, count 13 contains language
suggesting that the Quantex fraud was part of
a larger scheme or pattern of fraudulent
activity.
Both the government and Cothran’s
interpretations are plausible, but based on the
indictment and bill of information alone, the
scheme was limited to the Quantex fraud in
June 1998. The defendant has no control over
the language that the government uses in the
indictment; the bill of information more
accurately reflects the scope of the agreement
between Cothran and the government. Coth-
ran also pleaded guilty to the bill of
information, not the indictment. The bill of
information, however, is not our only source
of information about the scope of the scheme.
The government points out that the plea
agreement provided that “the Court may order
[Cothran] to make restitution to the victims of
his scheme to defraud and to other computer
and delivery companies as set out in the
superseding indictment to whom the
Defendant is indebted . . . .” The plural word
“victims” and reference to “other computer
and delivery companies” make plain that this
agreement goes beyond Quantex and beyond
June 1998. We must decide whether the plea
11 Hughley II, 147 F.3d at 438 (explaining that
the restitution award should be limited to the tem-
poral scope of the count of conviction); Stouffer,
986 F.2d at 928-29 (explaining that where
indictment defined specific time period, scheme to
defraud included all losses caused during that time
period, even though defendants pleaded guilty only
to specific instances of fraud within that time
period); United States v. Pepper, 51 F.3d 469, 473
(5th Cir. 1995) (finding that district court could
(continued...)
11(...continued)
include all losses imposed during relevant time-
frame and by the methods described in the
indictment because they were part of a larger
scheme); United States v. Chaney, 964 F.2d 437,
453 (5th Cir. 1992) (ruling that an individual’s
conviction for conspiring to and making a false
entry on a questionnaire for bank officers was part
of a larger scheme to cause the bank to issue bad
loans and holding the defendant responsible for all
the loans).

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agreement affects our interpretation of the
scope of the scheme alleged in count 13 and
the bill of information.
In United States v. Arnold, 947 F.2d 1236,
1238 (5th Cir. 1991), we considered a plea
agreement when defining the scope of a
fraudulent scheme and amount of restitution.
Arnold was an easier case: The defendant did
not object in the district court to the
characterization of the scheme or the
restitution amount, further demonstrating the
parties’ mutual understanding. Id. Arnold’s
principle, however, extends to cover the
current case. Because Cothran’s plea
agreement contemplated a scheme that went
beyond the June 1998 fraud on Quantex to the
other frauds alleged in the indictment, we
interpret the conviction as part of this broader
scheme; under our precedent, the district court
could award restitution to all of the victims of
the broader scheme.
D.
Cothran argues that the court erroneously
imposed two additional conditions on his su-
pervised release. We usually review for an
abuse of discretion the conditions added to su-
pervised release. United States v. Mills, 959
F.2d 516, 519 (5th Cir. 1992). Cothran did
not object to these conditions in the district
court, however, so we review only for plain
error. Milton, 147 F.3d at 420. The district
court has the discretion to impose conditions
“reasonably related” to “the history and
characteristics of the defendant” or his general
rehabilitation. 18 U.S.C. § 3583(d); 18 U.S.C.
§ 3563(b); 18 U.S.C. § 3553(a); U.S.S.G.
§ 5D1.3(b).
Cothran argues that the court improperly
forbade him from gambling or visiting
gambling establishments while on supervised
release. The court, however, noted the many
cash withdrawals that Cothran made from ca-
sinos while in such dire financial straits that he
had to resort to fraud. The Seventh Circuit
has upheld a similar condition based on similar
facts. United States v. Brown, 136 F.3d 1176,
1186 (7th Cir. 1998). We agree with our
sister circuit: A district court does not abuse
its discretion, much less commit plain error, by
restricting a criminal defendant with a history
of excessive gambling from visiting casinos or
gambling during supervised release.
The district court also required Cothran to
receive “substance abuse treatment as directed
by the probation office.” The defendant must
refrain from drug use as a mandatory condition
of supervised release. U.S.S.G. § 5D1.3(a)(4);
18 U.S.C. § 3583(d). The court can require
participation in a substance abuse program if it
has reason to believe that the defendant abuses
controlled substances. U.S.S.G. §
5D1.3(d)(4); 18 U.S.C. § 3563(b)(9). In
1991, Cothran pleaded guilty to possession of
marihuana. In 1999, he was arrested and
charged with possession of suspected crack
cocaine, but the charges were dismissed. Al-
though Cothran denied drug use, the district
court had a reasonable basis to grant the
probation department the authority to order
him into drug treatment.
E.
Cothran appeals the refusal to grant a
downward departure based on his mother’s ill
health. We lack jurisdiction over the denial of
a downward departure unless the district court
mistakenly believed it lacked the authority to
depart. United States v. Yanez-Huerta, 207
F.3d 746, 748 (5th Cir.), cert. denied, 531
U.S. 981 (2000). The record must
demonstrate that the district court
misunderstood its authority. Id. The court in

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this case properly understood the scope of its
authority but declined to exercise its discretion
to depart. We therefore lack jurisdiction to
review its decision.
AFFIRMED.

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