U.S. v. Miller

Decision Date12 October 1990
Docket NumberNo. 89-6067,89-6067
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harold G. MILLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Michael Winck, David Dake (argued), Asst. U.S. Attys., Knoxville, Tenn., for plaintiff-appellee.

Ronald P. Smith (Argued), Knoxville, Tenn., for defendant-appellant.

Before MERRITT, Chief Judge; MARTIN and GUY, Circuit Judges.

RALPH B. GUY, Circuit Judge.

Defendant, Harold Miller, who pleaded guilty to conspiring to distribute 1.25 ounces of cocaine hydrochloride in violation of 21 U.S.C. Secs. 841 and 846, appeals the 60-month sentence imposed upon him under the Sentencing Guidelines. Specifically, the defendant argues that his waiver of the right to counsel was defective, and that statements he made to his probation officer should not have been used to establish the amount of cocaine that he distributed. In addition, the defendant challenges the district court's inclusion of drug sales outside the period of the conspiracy as relevant conduct, and further contends that the district court incorrectly enhanced his guideline sentence based upon the erroneous determination that he possessed a firearm during the commission of a drug offense. Finding no merit in any of these arguments, we affirm.

I.

An investigation of defendant Miller that began in March of 1988 resulted in three separate sales of cocaine hydrochloride by the defendant to an undercover informant. On each occasion, the informant wore a recording device, thereby generating a tape of each transaction. The investigation culminated in the arrest of defendant Miller on October 24, 1988. On the date of his arrest, the defendant, acting in a pro se capacity after being advised of his rights and waiving his right to counsel, arranged a plea agreement with the government that required the defendant to forgo his right to an indictment and plead guilty to conspiring to distribute 1.25 ounces of cocaine between March 1, 1988, and May 11, 1988. The defendant also consented to furnish truthful testimony for the government and serve as an undercover informant upon request. 1 In exchange, the government promised not to prosecute Miller further for cocaine distribution so long as he "abide[d] by the terms of th[e] agreement."

On March 17, 1989, the defendant appeared before the district court, signed a waiver of counsel form, and entered a guilty plea to a single-count information charging him with conspiring to distribute 1.25 ounces of cocaine hydrochloride "between March 1, 1988, and May 11, 1988[.]" Before accepting the defendant's plea, the district judge engaged in a colloquy with the defendant to ascertain whether the defendant understood his right to counsel and the perils of proceeding pro se. The district judge explained the charge, the potential penalties, and the fact that the Sentencing Guidelines would dictate the range of the resulting sentence. After the defendant expressed his desire to proceed in his own defense, the district court explicitly found "that the defendant has knowingly and voluntarily waived his right to counsel." The waiver of counsel form signed by the defendant at that point in the proceedings memorialized the defendant's stated intention.

Once the defendant had waived his right to counsel, the district court proceeded to advise the defendant of his rights and take his guilty plea. Defendant Miller personally acknowledged the various rights enumerated by the district court, signed a form waiving his right to have the case submitted to the grand jury, and formally adopted the government's explanation of the conduct supporting the charge. The plea proceeding ended with the following comments from the district court:

THE COURT: Mr. Winck will explain that to you and tell you where you need to go to see the probation officer. Now, that person is very helpful, Mr. Miller. He or she, as the case may be, is an officer of this Court and they'll be getting all the information from you concerning your past, what your problem was with this crime, and they'll submit that report to me and then I'll review that and use that, in part, in determining what sentence should be imposed. So be honest and candid with the probation officer, okay?

A. Yes, sir.

THE COURT: Because you will be working with that person for a long time and, as I say, those people can help you.

A: Yes, sir.

During a meeting with his probation officer, defendant Miller revealed that he had purchased approximately one ounce of cocaine per week between February 1987 and October 1988. The defendant further explained to his probation officer that he typically used half of the cocaine that he bought, and sold the other half to support his habit. Proceeding from this disclosure, the probation officer calculated that the defendant had sold 1,169.5 grams of cocaine over a 20-month period. Accordingly, the probation officer used the 1,169.5 gram figure, rather than the 35.5 gram (1.25 ounce) figure charged in the information, to establish the base offense level in the defendant's presentence report. The impact of the 1,169.5 gram figure as reflected in the presentence report was substantial. Application of the 1,169.5 gram figure resulted in a base offense level of 26, see U.S.S.G. Sec. 2D1.1(c)(9), which yielded a sentencing range of 63 to 78 months, see id. Ch. 5, Pt. A (Sentencing Table), whereas the 35.5 gram figure would have produced a base offense level of 14, see id. Sec. 2D1.1(c)(15), and a sentencing range of 15 to 21 months. See id. Ch. 5, Pt. A (Sentencing Table). Upon learning of the probation officer's proposed sentencing range, the defendant sought and obtained appointed counsel to prepare for the sentencing hearing.

After counsel was appointed, the defendant filed a motion to disallow the use of information revealed to the probation officer in the calculation of the appropriate guideline sentence. The district court denied the motion as well as the defendant's subsequent motion for reconsideration. On August 8, 1989, the district court conducted a sentencing hearing. At the outset of the hearing, the defendant indicated through counsel that he affirmatively "elected to go forward with the plea under the information." The government then presented evidence that defendant Miller had engaged in at least one sale of cocaine with a pistol readily accessible on a nearby table. The defendant admitted ownership and possession of various guns, but argued that no weapon was present when any sale of cocaine occurred. The district court, characterizing the defendant's weekly cocaine sales revealed to the probation officer as "relevant conduct," see U.S.S.G. Sec. 1B1.3, set the base offense level at 26. The court then added two points to the base offense level for possession of a weapon during the commission of the offense, see id. Sec. 2D1.1(b)(1), and deducted two points for the defendant's acceptance of responsibility. See id. Sec. 3E1.1. Arriving at a sentencing range of 63 to 78 months, the district court, sua sponte, departed downward to a 60-month sentence because there were "not any real aggravating factors in this case."

The defendant filed a timely notice of appeal; the government did not cross-appeal. 2 The defendant raises four assignments of error for our consideration. First, he alleges that the district court failed to obtain an effective waiver of his right to counsel. Second, he contends that his statements made to his probation officer cannot provide the basis for establishing his base offense level. Third, he asserts that the district court improperly characterized the information he provided to the probation officer as "relevant conduct" in setting his base offense level at 26. Finally, he argues that the district court erred in finding that he used a firearm in the course of committing the offense of conviction. We shall address these issues seriatim.

II.

The Supreme Court's decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), clearly established that the sixth amendment "grants to the accused personally the right to make his defense" through self-representation. Id. at 819, 95 S.Ct. at 2533. Self-representation, however, must be undertaken only upon a showing "that an accused was offered counsel but intelligently and understandingly rejected the offer." Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962); accord United States v. Grosshans, 821 F.2d 1247, 1250 (6th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 506, 98 L.Ed.2d 505 (1987); see also Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. We have recognized the difficulties that district courts face when confronted with defendants who wish to waive their right to counsel, see United States v. McDowell, 814 F.2d 245, 248-49 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987), and have "invoke[d] our supervisory powers to identify the nature of the inquiry to be made and the procedure to be followed ... in situations where an accused seeks to waive representation by counsel and proceed pro se." Id. at 250. Specifically, we adopted the "model inquiry ... set forth in 1 Bench Book for United States District Judges 1.02-2 (3d ed. 1986)[,]" McDowell, 814 F.2d at 250, mandated adherence to "the model inquiry or one covering the same substantive points," id., and required a finding on the record of informed insistence upon self-representation as preconditions to a valid waiver of the right to counsel. See id.

In this case, we find that the district court substantially complied with the model inquiry adopted in McDowell, 814 F.2d at 250, and that the defendant therefore effectively waived his right to counsel. See id. at 252 (Engel, J., concurring) ("[T]he rule today, based upon our supervisory powers, requires substantial compliance and not...

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