UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CLIMMIE JONES, JR., Defendant-Appellant.
No. 06-5551
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 5, 2007
07a0209p.06
MOORE, COLE, and ROGERS, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 96-00017—Todd J. Campbell, Chief District Judge. Argued: April 26, 2007.
COUNSEL
OPINION
KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant Climmie Jones, Jr. (“Jones“), was convicted by a jury of twenty-one drug and firearms charges. After two prior appeals and remands for resentencing and other proceedings, Jones now appeals his latest sentence of 168 months in prison, six years of supervised release, and a $1,050 special assessment. Jones argues through counsel that the district court erred by applying the preponderance-of-the-evidence standard for judicial fact-finding during sentencing and that his sentence was procedurally and substantively unreasonable. Jones also argues pro se that he was denied the right to represent himself, that the district court erred in calculating the length of two of his twenty-one concurrent six-year terms of supervised release, that his sentence violated the Double Jeopardy Clause, that he was denied access to certain documents, and that he received ineffective assistance of counsel. Because the length of Jones‘s two terms of supervised release for his two firearms convictions exceeds the statutory maximum, and because eight of Jones‘s convictions subjected him to multiple punishments in violation of the Double Jeopardy Clause, we VACATE the judgment of the district court and REMAND for the limited purpose of entering an amended judgment that remedies these two errors.
I. BACKGROUND
In 1996, a federal jury convicted Jones of one count of conspiracy to distribute cocaine and cocaine base, in violation of
After discovery on remand, Jones moved to dismiss the indictment for selective prosecution and moved for a new trial. On July 13, 2000, before the district court ruled on Jones‘s motions, Jones was declared incompetent to proceed. On January 4, 2002, Jones was declared competent, and, on August 27, 2002, the district court denied his motion to dismiss the indictment and his motion for a new trial. Jones was resentenced, this time to 210 months in prison, six years of supervised release, and a $1,050 special assessment, and he again appealed on numerous grounds. On March 3, 2005, we affirmed the judgment of the district court in most respects, but vacated Jones‘s sentence and remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v. Jones (Jones II), 399 F.3d 640 (6th Cir. 2005). On October 3, 2005, the United States Supreme Court denied Jones‘s petition for certiorari. Jones v. United States, --- U.S. ---, 126 S. Ct. 148 (2005).
Jones made a number of motions in the district court on the second remand, both through counsel and pro se, the relevant details of which we discuss in greater detail below. On April 10, 2006, the district court held a third sentencing hearing, at which Jones was sentenced to 168 months in prison, six years of supervised release, and a $1,050 special assessment. The district court also issued an order entitled “Rule 32(c)(1) Findings and Determinations Regarding Objections to Presentence Investigation Report,” in which the district court addressed in greater detail a number of sentencing issues raised by Jones and the government. Jones timely appealed through counsel.1
II. ANALYSIS
A. Right to Self-Representation at Sentencing
Although the main focus of Jones‘s current appeal is on challenges to the district court‘s sentencing determination, we must first address two preliminary matters. Acting pro se, Jones first argues that he was denied his constitutional and statutory right to self-representation during pre-sentencing proceedings and at sentencing on the second remand. This court reviews de novo the legal question of the scope of the right to self-representation. United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004).
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that the Sixth Amendment guaranteed a criminal defendant the right to represent himself or herself at trial. Id. at 832. Criminal defendants in federal courts also have a statutory right to “plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”
The exact contours of the right to self-representation, however, depend on the nature of the proceeding. In Faretta, the Supreme Court noted that a trial court “may—even over objection by the accused—appoint a ‘standby counsel.‘” Faretta, 422 U.S. at 834 n.46; see also United States v. Walsh, 742 F.2d 1006, 1006-07 (6th Cir. 1984). In McKaskle v. Wiggins, 465 U.S. 168 (1984), the Court further defined the permissible role of standby counsel:
First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel‘s participation over the defendant‘s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.
Second, participation by standby counsel without the defendant‘s consent should not be allowed to destroy the jury‘s perception that the defendant is representing himself. The defendant‘s appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused‘s individual dignity and autonomy.
Id. at 178. In proceedings outside the presence of a jury, the Court reasoned, only the first of these concerns is applicable. Id. at 179. In such proceedings, therefore, the defendant‘s right to self-representation is satisfied
In the proceedings below, Jones was allowed to submit multiple motions to the district court, introduce evidence and make arguments at the sentencing hearing, and address the court on his own behalf. Jones‘s appointed counsel made other motions on Jones‘s behalf, but the record does not reveal any instances in which Jones and his counsel disagreed on strategy or Jones‘s counsel undermined Jones‘s arguments. Cf. id. at 180-81 (concluding that a defendant was not denied his right to self-representation even though counsel, outside the jury‘s presence, “made motions, dictated proposed strategies into the record, registered objections to the prosecution‘s testimony, urged the summoning of additional witnesses, and suggested questions that the defendant should have asked of witnesses“); Walsh, 742 F.2d at 1007 (concluding that a defendant was not denied his right to self-representation by the appointment of advisory counsel because “there seems to be no sign of conflict between counsel and defendant, and . . . the defendant does not argue that he was prevented from executing any strategy he chose“). Moreover, Jones did not object to any of the motions or arguments made by his counsel. See Wiggins, 465 U.S. at 182 (“Even when he insists that he is not waiving his Faretta rights, a pro se defendant‘s solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.“). In sum, we conclude that the record does not reveal any instances in which Jones was denied his right to self-representation at sentencing, despite the presence of counsel.
We observe, however, that the district court may have erred in this case by not ruling on Jones‘s request to represent himself. We have held that once a defendant has “clearly and unequivocally asserted his right to proceed pro se,” as Jones did, the district court must give the defendant particular warnings designed to ensure that the defendant‘s waiver of counsel is knowing and voluntary. Cromer, 389 F.3d at 679-80, 682. Thus, had Jones and his counsel conflicted on questions of strategy, for example, reversal may have been warranted: if the district court resolved the conflict in favor of counsel, Jones‘s right to self-representation would have been violated; and if the district court resolved the conflict in favor of Jones, we would likely conclude that he had represented himself without knowingly and voluntarily waiving the right to counsel. The circumstances of this case demonstrate that Jones was not denied his right to self-representation, but we note that similar errors by a district court may very well require reversal in different circumstances.
B. Request for Copies of Documents
Jones also argues pro se that the district court erred by refusing to allow him to copy certain documents from the record in order to help him prepare his sentencing arguments. It is difficult to determine the legal basis for Jones‘s argument and the appropriate standard of review, but Jones‘s claim fails even under de novo review. On July 11, 2005, Jones, acting pro se, filed a request for certain legal documents. On July 12, the district
C. Standard for Judicial Fact-Finding in Sentencing
We next turn to Jones‘s challenges to the district court‘s sentencing determination. Jones argues through counsel that the district court violated his due process rights by using a preponderance-of-the-evidence standard to determine that the quantity of cocaine base that he possessed and distributed was 18.3 grams. We have previously determined that “judicial fact-finding in sentencing proceedings using a preponderance of the evidence standard post-Booker does not violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by jury.” United States v. Gates, 461 F.3d 703, 708 (6th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 602 (2006); see also United States v. Barton, 455 F.3d 649, 657-58 (6th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 748 (2006); United States v. Green, 181 F. App‘x 506, 507-09 (6th Cir. 2006) (concluding that the district court did not violate the Due Process Clause by using a preponderance-of-the-evidence standard to determine the quantity of drugs for which a defendant was responsible). Accordingly, we conclude that the district court did not err by using a preponderance-of-the-evidence standard.
D. Reasonableness of Jones‘s Sentence
Jones also argues through counsel that his sentence was procedurally and substantively unreasonable. On appeal, we must determine whether a district court‘s sentencing determination was reasonable. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, 546 U.S. 1126 (2006). Reasonableness has both substantive and procedural components, and accordingly, we consider “not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” Id.; accord United States v. Davis, 458 F.3d 505, 510 (6th Cir. 2006); United States v. Richardson, 437 F.3d 550, 553-54 (6th Cir. 2006).
1. Procedural Reasonableness
“A sentence may be procedurally unreasonable if ‘the district judge fails to “consider” the applicable Guidelines
Jones asserts through counsel that “the district court erred when it failed to consider certain mitigating factors for purposes of sentencing under
Joint Appendix (“J.A.“) at 192 (4/10/06 Sentencing Hr‘g at 101); J.A. at 293-94 (Dist. Ct. Rule 32(c)(1) Order at 4-5). In its Rule 32(c)(1) Order, the district court explicitly linked this determination to a number of relevant
[I]n the opinion of the Court, I think Mr. Jones is a different man today than he was in 1995. I think he has undergone efforts towards rehabilitation. Seems to be turning his life around, and I am going to sentence Mr. Jones in the guideline range, but in the opinion of the Court, he should not be sentenced at the top of the range in that he is a different
man than he was when he has been here twice before, and I am going to sentence him at the low end of the guideline range that I have determined that‘s applicable.
J.A. at 192-93 (4/10/06 Sentencing Hr‘g at 101-02). The record reflects that the district court considered all of Jones‘s arguments, the applicable Guidelines range, and the relevant
2. Substantive Reasonableness
The thrust of Jones‘s reasonableness argument appears to be that, although the district court considered the appropriate factors, the district court gave too little weight to certain mitigating factors and thus sentenced Jones to more time in prison than was warranted—that is, that the sentence is substantively unreasonable. “[A] sentence may [be] substantively unreasonable where the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
Jones argues that the district court erred by not giving sufficient weight to six mitigating factors: 1) that Jones was subjected to racially discriminatory conduct by the police, see Jones I, 159 F.3d at 975-76 (describing in detail the “undeniably shameful” conduct of the police); 2) that distribution or possession of a particular amount of cocaine base carries the same Guidelines range as distribution or possession of one hundred times that amount of powder cocaine (often referred to as the 100:1 crack to cocaine ratio); 3) that Jones had been incarcerated in local jails for much of his prison term; 4) that Jones had demonstrated significant post-sentencing rehabilitation; 5) that Jones had a mental condition that required treatment; and 6) that similarly situated defendants had received lesser sentences. At least two of these factors do not lend significant
The remaining factors do lend some support for a reduced sentence. Jones testified that his incarceration in local jails for much of his imprisonment thus far offered fewer services and was “extremely more harsh” than it would have been in federal prison, J.A. at 178-80 (4/10/06 Sentencing Hr‘g at 46-48), indicating that a reduced sentence may “provide just punishment,”
The district court determined that Jones‘s history of violence and threats of violence counterbalanced Jones‘s mitigating evidence and militated in favor of a within-Guidelines sentence and that Jones‘s mitigating evidence justified a sentence at the bottom of the applicable Guideline range, but no lower. Although Jones‘s mitigating evidence might warrant a below-Guidelines sentence in some circumstances, we cannot say that the district court gave an unreasonably large amount of weight to Jones‘s significant history of violence or an unreasonably small amount of weight to Jones‘s mitigating arguments. Accordingly, we conclude that his sentence was substantively reasonable.
E. Length of Two Terms of Supervised Release
Acting pro se, Jones argues that the district court erred by sentencing him to two six-year terms of supervised release for his two firearms convictions, counts twenty and twenty-one of the superseding indictment. We review de novo the district court‘s interpretation of a federal statute and the Sentencing Guidelines. United States v. Palacios-Suarez, 418 F.3d 692, 694 (6th Cir. 2005).
The district court sentenced Jones to twenty-one separate six-year terms of supervised release, to run concurrently. Jones does not challenge nineteen of those terms, but argues that the maximum term of supervised release that he could receive for each of his two firearms convictions is three years. Jones was convicted of one count of possession of an unregistered firearm, in violation of
F. Double Jeopardy
Acting pro se, Jones also argues that his sentence violated the Double Jeopardy Clause of the Fifth Amendment because eight of his convictions for violating
Under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), if the same act constitutes a violation of two statutory provisions, the Double Jeopardy Clause prohibits punishing a defendant for both violations unless “each provision requires proof of an additional fact which the other does not.” Id. at 304. Title
The superseding indictment makes clear that eight of Jones‘s convictions for violating § 841(a)(1) were for the same acts as his eight convictions for violating § 860. In counts two, four, seven, nine, eleven, thirteen, fifteen, and eighteen, Jones was charged with possessing and distributing a particular quantity of drugs on a particular day, in violation of § 841(a)(1), and in counts three, five, eight, ten, twelve, fourteen, sixteen, and nineteen, Jones was charged with possessing and distributing the same quantity of drugs on the same day within 1000 feet of a school, in violation of § 860. The government is permitted to charge lesser-included offenses, but Jones could not constitutionally be convicted and sentenced under both § 841(a)(1) and § 860 for the same acts. See DeCarlo, 434 F.3d at 456. Even though Jones received concurrent sentences under § 841(a)(1) and § 860 for these charges, his convictions on counts two, four, seven, nine, eleven, thirteen, fifteen, and eighteen must be vacated because, as the Supreme Court has noted, the $50 special assessment5 on each conviction amounts to unconstitutional
G. Ineffective Assistance of Counsel
Finally, Jones argues pro se that he received ineffective assistance of trial counsel. In order to succeed on these claims, Jones must show that his counsel was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). We ordinarily will not rule on ineffective assistance of counsel claims raised on direct appeal because the record has not been sufficiently developed to review such claims, see United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004), but because Jones‘s ineffective assistance of counsel claims are predicated on three underlying claims resolved on the merits here, we can resolve Jones‘s ineffective assistance of counsel claims as well.
Jones argues that his counsel was ineffective for not raising three of the claims discussed above: that Jones was entitled to represent himself; that the district court erred by sentencing Jones to two six-year terms of supervised release for his two firearms convictions; and that Jones was subjected to multiple punishments in violation of the Double Jeopardy Clause. Because we are granting Jones relief on his supervised-release and double-jeopardy claims, his ineffective assistance of counsel claims predicated on these two claims are moot. See United States v. Milledge, 109 F.3d 312, 316 n.2 (6th Cir. 1997). Because we conclude that Jones was not denied the right to represent himself, it is clear that counsel was not constitutionally ineffective for failing to raise that claim. See Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir.), cert. denied, 528 U.S. 946 (1999). Accordingly, we conclude that Jones is not entitled to relief on the ineffective assistance of counsel claims that he has raised.
H. Remedy
As explained above, Jones is entitled to relief on two issues: 1) the length of his two terms of supervised release for his two firearms convictions must be reduced from six years to three years; and 2) his convictions on counts two, four, seven, nine, eleven, thirteen, fifteen, and eighteen must be vacated, as must the corresponding terms of imprisonment, terms of supervised release, and special assessments. Because these amendments to the district court‘s judgment are ministerial in nature, we believe that a limited remand is appropriate to permit the district court to conform the judgment to make these two specific corrections. See
Because the length of Jones‘s two terms of supervised release for his two firearms convictions exceeds the statutory maximum, and because eight of Jones‘s convictions subjected him to multiple punishments in violation of the Double Jeopardy Clause, we VACATE the judgment of the district court and REMAND for the limited purpose of entering an amended judgment that remedies these two errors.