United States v. Kerr
2014 U.S. App. LEXIS 9099
2d Cir.2014Background
- Kerr, a Canadian, was arrested at the U.S.–Canada border after Customs found ~7,000 MDMA pills (2,068 grams) hidden in his vehicle; charged with possession with intent to distribute.
- Pretrial: Kerr cycled through multiple appointed attorneys, repeatedly pressed pro se theories (government perjury, destroyed evidence), and sought to subpoena irrelevant witnesses; court ordered a competency exam.
- FMC psychologists found Kerr competent to stand trial; court permitted self-representation with standby counsel (Wells). Trial began; after the government rested Kerr pled guilty mid-trial with Wells assisting during the plea colloquy.
- Post-plea Kerr filed multiple pro se motions seeking to withdraw his plea and to obtain new counsel; the district court denied the initial withdrawal motion and later denied requests for appointment of new counsel to pursue repeated withdrawal attempts.
- Probation held Kerr accountable for the full drug quantity; Guidelines range calculated at 121–151 months; district court sentenced Kerr to 121 months, rejecting his various sentencing arguments.
Issues
| Issue | Kerr's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether district court had to hold a competency hearing before sentencing given Kerr’s post-plea behavior | Post-plea "erratic" and "irrational" conduct and counsel’s concerns required renewed competency inquiry | Court relied on FMC report and its own observations that Kerr was competent; pre- and mid-trial behavior consistent | No abuse of discretion; no additional competency hearing required |
| Whether denial of appointment of counsel post-plea violated Sixth Amendment (to assist with withdrawing plea) | After proceeding pro se, Kerr requested counsel to help file a second motion to withdraw; denial deprived him of counsel at a critical stage | Kerr had previously waived counsel, made meritless/duplicative requests, and sought delay; district court within discretion to deny repeat request | Denial not an abuse of discretion—court properly exercised discretion to refuse post-waiver appointment |
| Whether Kerr should be held accountable only for the pills he knew about (4,000) rather than all ~7,000 | Kerr argued he did not know about the 3,000 pills in rear paneling and thus should not be sentenced on full quantity | Guidelines and precedent do not require proof that defendant knew total quantity to be held accountable | Held accountable for full 7,000 pills; no requirement that defendant knew the total amount |
| Whether Kerr was entitled to a U.S.S.G. § 3B1.2 minor-role reduction (courier) | Kerr claimed he was a onetime drug mule deserving a minor-role adjustment | Burden on defendant to prove minor role by preponderance; no evidence on relationship, importance to venture, or awareness | Denied; Kerr failed to meet burden for minor-role reduction |
| Whether the sentence was procedurally inadequate | Kerr argued the court failed to articulate basis for sentence and account for his arguments | District court adopted PSR, considered submissions, explained it imposed a low-end Guidelines sentence and that Kerr’s refusal to cooperate limited mitigation evidence | Sentence was procedurally reasonable and adequately explained |
Key Cases Cited
- Quintieri v. United States, 306 F.3d 1217 (2d Cir. 2002) (courts may rely on observations and psychiatric reports when assessing competency)
- Drope v. Missouri, 420 U.S. 162 (1975) (competency standard described; trial may not proceed if defendant cannot consult with counsel or understand proceedings)
- Zhou v. United States, 428 F.3d 361 (2d Cir. 2005) (use of psychiatric reports in reasonable-cause competency inquiry)
- Arenburg v. United States, 605 F.3d 164 (2d Cir. 2010) (obligation to remain vigilant for changed competency during proceedings)
- Wojtowicz v. United States, 550 F.2d 786 (2d Cir. 1977) (no per se requirement for a competency hearing after a prior evaluation found defendant competent)
- Faretta v. California, 422 U.S. 806 (1975) (right to self-representation requires knowing and intelligent waiver of counsel)
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness review of sentence; deferential abuse-of-discretion standard)
- de Velasquez v. United States, 28 F.3d 2 (2d Cir. 1994) (no Guidelines requirement that defendant know total drug quantity to be held accountable)
- Garcia v. United States, 920 F.2d 153 (2d Cir. 1990) (defendant bears burden to prove minor-role reduction; courier status not automatic)
- Cavera v. United States, 550 F.3d 180 (2d Cir. 2008) (procedural requirements for sentencing and the need for adequate explanation)