444 F.3d 447 (5th Cir. 2006), 05-60214, United States v. Virgil

Docket Nº:05-60214.
Citation:444 F.3d 447
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert G. VIRGIL, Defendant-Appellant.
Case Date:March 28, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 447

444 F.3d 447 (5th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Robert G. VIRGIL, Defendant-Appellant.

No. 05-60214.

United States Court of Appeals, Fifth Circuit.

March 28, 2006

Page 448

Richard Terrell Starrett, Asst. U.S Atty., Jackson, MS, for U.S.

Julie Ann Epps, Canton, MS, for Virgil.

Appeal from the United States District Court for the Southern District of Mississippi

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

Page 449


Robert G. Virgil appeals his conviction and sentence for being a felon in possession of a firearm. We affirm his conviction and, due to a constitutional error, reverse and remand for resentencing.


In February 2002, Robert G. Virgil was arrested on state drug charges. During the course of his arrest, state police found numerous firearms in Virgil's possession. The state declined to prosecute and, instead, asked the federal government to pursue charges. In March 2004, a federal grand jury indicted Virgil on firearm possession charges stemming from the 2002 arrest. On April 6, 2004, local police executed a federal arrest warrant at Virgil's residence.

More than ten officers participated in the execution of the arrest warrant, essentially surrounding Virgil's residence. Chief Ellis Stewart, of the Hazlehurst, Mississippi, police department, went to the back of the residence before the officers in front knocked on the door. Chief Stewart heard noises coming from inside the rear of the residence and alerted the officers in front. The officers in front knocked on the door, and Virgil answered. The officers immediately arrested Virgil at the threshold of his residence. From that vantage point, the officers noticed a rifle-type weapon in the room.1 Aware of Chief Stewart's report of noises coming from the rear of the residence, the officers asked Virgil if anyone else was on the premises. Virgil responded that he did not know. The officers then made a protective sweep of the two-room residence to ensure nobody else was present. During the course of the protective sweep, the officers observed a shotgun leaning against the wall behind the front door where Virgil was arrested.2

In a pre-trial hearing, Virgil attempted to suppress the shotgun. At this hearing and during trial, Virgil was represented by counsel Omodare Jupiter. The district court found that the shotgun was in plain view during the protective sweep; therefore, the court refused to suppress the shotgun. The shotgun was admitted into evidence at trial. On November 15, 2004, a jury found Virgil guilty of the sole count of being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1).

Following trial, the district court set Virgil's sentencing hearing for February 18, 2005. Prior to the hearing, on February 7, the district judge received a handwritten letter from Virgil, requesting a new trial and obliquely expressing dissatisfaction with Jupiter's trial strategy.3 Virgil,

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along with Jupiter, appeared at the sentencing hearing on February 18 when, for the first time, Virgil refused Jupiter's assistance and requested new counsel be appointed. When the district court asked Virgil why he no longer wanted Jupiter as counsel, Virgil claimed that Jupiter had forced a defense witness to perjure himself on the stand and that Jupiter otherwise "didn't represent me right" by failing, among other things, to timely move for a new trial.

The district court, believing Virgil was "trying to manipulate the court," denied Virgil's request for new counsel and made Virgil choose between Jupiter's assistance or appearing pro se . Given the two alternatives, Virgil chose to represent himself. The district court asked Jupiter to stand by should Virgil change his mind. The district court then asked Virgil if he had read the Pre-Sentence Report ("PSR"); Virgil said that he had not. In light of the number and detail of previously filed objections to the PSR, the district court believed that Virgil "misrepresented to me that he has not read the presentence report." Nonetheless, the district court continued the hearing until March 4, 2005, in order to give Virgil additional time to review the PSR, Jupiter's objections, and the addendum to the PSR that Virgil had received the day before the sentencing hearing.

On March 4, 2005, Virgil and Jupiter appeared at the second sentencing hearing. Virgil again refused Jupiter's assistance, and Jupiter remained as stand-by counsel. Virgil repeated his request for the assistance of other counsel; several times during the sentencing hearing, Virgil complained that he was not an attorney or that he needed an attorney (that is, an attorney other than Jupiter). At one point, when Jupiter attempted to answer a question posed by the district court, Virgil interrupted: "I don't want Omodare Jupiter to do nothing." After reviewing the PSR and sustaining two of the objections Jupiter had filed on Virgil's behalf, the district court found that the applicable guideline range was 77 to 96 months. The district court then sentenced Virgil to a term of 96 months, three years probation, and fines.

Virgil brings this appeal, contesting the validity of the district court's decisions to deny suppression of the shotgun and to allow him to proceed pro se without proper warnings.


A. Motion to Suppress

(1) Standard of Review

In reviewing the denial of a motion to suppress, this court reviews the district court's findings off act for clear error and conclusions of law de novo. United States v. Lopez-Moreno , 420 F.3d 420, 429 (5th Cir. 2005), cert. denied , ---U.S.---, 126 S.Ct. 1449, 164 L.Ed.2d 146 (2006); United States v. Phillips , 382 F.3d 489, 494 (5th Cir. 2004). Findings of fact must be viewed in the light most favorable to the prevailing party below, here, the government. Lopez-Moreno , 420 F.3d at 429; Phillips , 382 F.3d at 494. The district court's determination that the factual circumstances provided reasonable suspicion

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is reviewed de novo. Lopez-Moreno , 420 F.3d at 430.

(2) Applicable Law

Police armed withan arrest warrant and probable cause to believe that a suspect is at his home have the right to enter the premises to arrest him. See Payton v. New York , 445 U.S. 573, 602–03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Route , 104 F.3d 59, 62 (5th Cir. 1997). Any arrest may be accompanied by a search "incident to the arrest" of the immediate vicinity, limited to areas in which weapons might be found, regardless of probable cause or reasonable suspicion. Maryland v. Buie , 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The immediate vicinity may include even closed closets and other spaces. Id. further, aside from the search incident to arrest, police may conduct a protective sweep of the relevant premises, provided the police possess a reasonable suspicion, based on specific and articulable facts, that another person may be on the premises and pose a danger to the police. Id. at 334–36, 110 S.Ct. 1093. Such a protective sweep "may be no more than 'a cursory inspection of those spaces where a person may be found' " and "may 'last[] no longer than is necessary to dispel the reasonable suspicion of danger' . . . [nor] longer than the police are justified in remaining on the premises." United States v. Gould , 364 F.3d 578, 587 (5th Cir.), cert. denied , 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004) (en banc) (quoting Buie , 494 U.S. at 1099, 110 S.Ct. 1093;). The protective sweep may even occur after the suspect is arrested. Buie , 494 U.S. at 334; Gould , 364 F.3d at 587.

Additionally, the plain view doctrine allows police to seize items without a search warrant. Such a warrantless seizure is permissible if: (1) the police lawfully entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was "immediately apparent;" and (4) the police had a lawful right of access to the item. United States v. Buchanan , 70 F.3d 818, 825–26 (5th Cir. 1995) (citing Horton v. California , 496 U.S. 128, 136–37 (1990)).

(3) Analysis

Virgil argues that the protective sweep was not supported by reasonable suspicion. Alternatively, Virgil argues that even a valid protective sweep...

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