U.S. v. Jones

Decision Date05 June 2007
Docket NumberNo. 06-5551.,06-5551.
Citation489 F.3d 243
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Climmie JONES, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: David L. Cooper, The Law Office of David L. Cooper, Nashville, Tennessee, for Appellant. Paul M. O'Brien, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: David L. Cooper, The Law Office of David L. Cooper, Nashville, Tennessee, for Appellant. Paul M. O'Brien, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MOORE, COLE, and ROGERS, Circuit Judges.

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 21 U.S.C. § 846; nine counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); seven counts of distribution of cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860; one count of aiding and abetting distribution of cocaine base, in violation of 18 U.S.C. § 2; one count of aiding and abetting distribution of cocaine base within 1000 feet of a school, in violation of 18 U.S.C. § 2; one count of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Jones was sentenced to 262 months in prison, ten years of supervised release, and a $1,050 special assessment, and he appealed on numerous grounds. On November 6, 1998, we affirmed the judgment of the district court in part, reversed in part, and remanded the case to the district court for resentencing and in order to allow Jones to pursue a claim of selective prosecution. United States v. Jones (Jones I), 159 F.3d 969 (6th Cir.1998).

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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 163 L.Ed.2d 146 (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).

Jones asserts that during a status conference on November 9, 2005, he informed the district court that he wished to represent himself. The district court informed Jones that he could submit motions on his own behalf, but that counsel would be appointed for him and that he could resubmit his request to the district court if he later did not wish to be represented by counsel. On January 7, 2006, Jones sent to the district court a letter along with a number of motions making clear that he wished to represent himself. Thereafter, Jones filed numerous motions in the district court, introduced evidence during the sentencing hearing, and made arguments on his own behalf during the sentencing hearing, but continued to be represented by counsel as well. The district court never ruled on Jones's request to represent himself.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (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, 95 S.Ct. 2525. 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." 28 U.S.C. § 1654. Thus, we may safely say that a criminal defendant in federal court has a right to represent himself or herself at sentencing. See United States v. Shanklin, 193 Fed.Appx. 384, 387-88 (5th Cir. 2006) (unpublished opinion), cert. denied, ___ U.S. ___, 127 S.Ct. 1009, 166 L.Ed.2d 758 (2007); United States v. Estrada, 25 Fed.Appx. 814, 819 (10th Cir.) (unpublished order), cert. denied, 535 U.S. 1010, 122 S.Ct. 1590, 152 L.Ed.2d 507 (2002). But cf. United States v. Hyman, No. 96-4855, 1998 WL 200320, at *3 (4th Cir. Apr.27, 1998) (unpublished opinion) (concluding that once a defendant has proceeded to trial with counsel, the decision whether to grant the defendant's request to proceed pro se at sentencing lies within the discretion of the district court).

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, 95 S.Ct. 2525; see also United States v. Walsh, 742 F.2d 1006, 1006-07 (6th Cir.1984). In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (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, 104 S.Ct. 944. In proceedings outside the presence of a jury, the Court reasoned, only the first of these concerns is applicable. Id. at 179, 104 S.Ct. 944. In such proceedings, therefore, the defendant's right to self-representation is satisfied "if the pro se defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the pro se defendant are resolved in the defendant's favor whenever the matter is one that would normally be left to the discretion of counsel." Id. (footnote omitted). Because Jones's sentencing and all relevant pre-sentencing proceedings took place outside the presence of a jury, Jones's right to self-representation is limited accordingly.

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...

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