U.S. v. Ramsdale, 95-3640

Decision Date06 July 1999
Docket NumberNo. 95-3640,95-3640
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Dale RAMSDALE, Charles Christoferson, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Thomas Keith, Asst. Fed. Pub. Defender, Pensacola, FL, Josephine Deyo, Asst. Fed. Pub. Defender, Tallahassee, FL, for Ramsdale.

Mark G. Hanson, Miami, FL, for Christoferson.

Pamela Moine and Nancy J. Hess, Asst.

Page 454345

U.S. Attys., Pensacola, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON and CARNES, Circuit Judge, and WATSON *, Senior Judge.

PER CURIAM:

For the second time, two defendants appeal their sentencing. We see no reversible errors and affirm.

Background

John Ramsdale and Charles Christoferson were convicted of conspiracy to manufacture methamphetamine. They appealed their sentences and convictions. We affirmed their convictions; but remanded the case for a determination of the kind of methamphetamine involved in the conspiracy. See United States v. Ramsdale, 61 F.3d 825, 827 (11th Cir.1995). We also asked for specific findings on the amount of methamphetamine used to sentence Christoferson. See id. at 832 n. 18.

On the morning of the first day's resentencing hearing, Leo Thomas, Christoferson's lawyer, explained he was required to be at a trial in about 30 minutes. After a discussion among the district court and the lawyers for Christoferson and Ramsdale--the significance of which underlies this appeal--it was decided that Thomas would leave that day's resentencing hearing to attend the trial.

A DEA chemist, a DEA agent, and the defense's expert chemist testified at the resentencing hearing. Their testimony was on the type of methamphetamine produced by the conspiracy using Phenylacetic Acid (PA) and on the amount of methamphetamine that could have been produced by Christoferson and Ramsdale from the PA.

Thomas left the hearing about halfway through the cross-examination of the DEA chemist by Ramsdale's attorney. He was absent during the testimony of the DEA Agent and of the defense's expert witness. Ramsdale's attorney cross-examined the government witnesses.

Thomas made arguments to the court on the second day of the resentencing hearing. At the end of the resentencing hearing, Christoferson--who personally was given no chance to address the district court--and Ramsdale received sentences of 360 months each: sentences no greater than they had received initially.

Discussion

Christoferson argues that he was denied his right to address the district court at sentencing and his Sixth Amendment right to counsel. Ramsdale and Christoferson both challenge the kind of methamphetamine used for their resentencing and the amount of methamphetamine.

Christoferson says he was denied his Sixth Amendment right to counsel because of his lawyer's absence at part of the resentencing hearing. Several events, however, prove to us that Christoferson, in fact, had a lawyer representing him at all times.

Before the hearing began, when the parties and the court first discussed Thomas's conflict, Ramsdale's lawyer said:

I don't know if it would help at all, I believe that the testimony that's going to be solicited will affect both the cases and perhaps that may be of some help to know that that would be the case, regardless of whether Mr. Thomas stays or not. I don't know if that's going to help his client, unless they waive a conflict of interest concern.

Later, Thomas said:

I'm proposing that the hearing take place in my absence, after which I can review the transcript and talk to my client and make a determination if there's anything else that needs to be done, if we need to bring any other witnesses. Maybe not. Probably not, but I don't know. The expert testimony is going to apply to both of us. I would think that would suffice.

Thomas added that his client was "agreeable" to the proposal. 1 If those statements were the only evidence of what the pertinent people understood about the arrangements for Thomas's absence, we might be unsure if Christoferson was represented. A later hearing, held at our direction, 2 however, clarified Christoferson's representation.

At the later hearing, the district court said to Thomas:

I think I can state with accuracy from my memory that at that particular [resentencing] hearing when you were not here, that Mr. Christoferson himself agreed and waived your appearance and relied upon [Ramsdale's attorney].

More important, Christoferson admitted under oath to having Ramsdale's attorney represent him at the resentencing hearing:

The Court: And you don't recall agreeing to have [Ramsdale's attorney] represent you at that hearing?

Christoferson: Yes, sir, I remember that.

The Court: Well, then you obviously had an attorney representing you, did you not?

Christoferson: Yes.

The Court: By your own agreement?

Christoferson: Right.

Thomas also added, under oath, that he did not see a difference between Christoferson's and Ramsdale's interests at the sentencing hearing.

Based on all this testimony, we think Ramsdale's attorney, the district court, Thomas, and Christoferson all believed that Ramsdale's attorney was acting as substitute counsel for Thomas.

For joint representation to deprive Christoferson of his Sixth Amendment right to effective assistance of counsel, an actual--not merely speculative--conflict of interest must exist. See United States v. Risi, 603 F.2d 1193, 1195 (5th Cir.1979). Christoferson does not suggest a conflict of interest existed between Ramsdale and him.

Our review of the record confirms that Ramsdale and Christoferson had no conflict of interest at the resentencing. The purpose of the hearing was to determine what kind of methamphetamine and how much methamphetamine to attribute to Christoferson and Ramsdale for sentencing. Christoferson's and Ramsdale's interests did not conflict: as coconspirators, they each were responsible for the kind and amount of drugs produced by the other. See United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993).

Because Christoferson had Ramsdale's attorney as substitute counsel and because no conflict of interest existed between Ramsdale and Christoferson, we think Christoferson had real representation at the resentencing hearing. So, we reject Christoferson's Sixth Amendment claim.

We also reject Christoferson's allocution claim. Under Federal Rule of Criminal Procedure 32(c)(3)(C), a defendant must be given the chance to address the sentencing court, before a sentence is imposed. When that opportunity is not given, but the defendant fails to object, we will remand only if we see "manifest injustice" as a result of the omission. See United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir.1998).

We see no manifest injustice as a result of the district court's failure to afford Christoferson a chance to allocute at his resentencing. See United States v. Tamayo, 80 F.3d 1514, 1522 (11th Cir.1996) (seeing no manifest injustice in district court's failure to allow defendant to speak at resentencing hearing). Christoferson does not suggest a manifest injustice. 3 So, another remand is not required.

Christoferson's allocution arguments based on United States v. Taylor, 11 F.3d 149 (11th Cir.1994) are not compelling. In Taylor, we remanded a case because the district court failed to allow the defendant to address the court at resentencing. Taylor is distinguishable because Taylor claimed that, at his original sentencing, he had no opportunity to allocute and because the district court, in Taylor, "set aside [the original sentencing package] in its entirety." Id. at 152. This case is more like Tamayo, in which we said not allowing the defendant to address the court was no reversible error: we relied mainly on the limited nature of the remand instructions. See Tamayo, 80 F.3d at 1518-20. As in Tamayo, our remand instructions were limited here. Furthermore, the district court and the parties understood the remand was a limited one: not every issue applicable to sentencing would be revisited. Christoferson, therefore, is not entitled to a remand based on his inability to address the district court at resentencing.

We do not need to spend much time writing about Ramsdale's and Christoferson's remaining claims. We think the original trial testimony (on the...

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