United States v. Dunbar

• Decision Date: 17 June 2013
• Docket Number: Nos. 11–3366,11–3374.,s. 11–3366
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Fabian DUNBAR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

718 F.3d 1268

UNITED STATES of America, Plaintiff–Appellee,

v.Fabian DUNBAR, Defendant–Appellant.

Nos. 11–3366, 11–3374.

United States Court of Appeals,Tenth Circuit.

June 17, 2013.

Jill M. Wichlens, Assistant Federal Public Defender, (Raymond P. Moore, Federal Public Defender, Veronica S. Rossman and O. Dean Sanderford, Assistant Federal Public Defenders, with her on the brief), Denver, CO, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Fabian Dunbar pleaded guilty in the United States District Court for the District of Kansas to distributing cocaine. The plea was conditioned on the district court's imposing a sentence of 48 months' imprisonment, as set forth in a plea agreement between Defendant and the government under Fed.R.Crim.P. 11(c)(1)(C). The agreement also stated that the parties would recommend a consecutive sentence of 12 months' imprisonment for Defendant's violating his supervised release from a 2006 sentence. The agreement did not include a waiver of Defendant's right to appeal.

The district court set the same time for hearings to sentence Defendant on the drug-distribution charge and to consider the petition charging him with violations of his supervised release. The court announced that it would begin with sentencing on the drug charge. But when it asked whether defense counsel had any objections to the presentence report (PSR), defense counsel responded that Defendant was dissatisfied with his performance and wanted new counsel. During the ensuing discussion of whether to replace defense counsel, Defendant submitted a pro se pleading that complained of counsel's performance in connection with his guilty plea and asserted that Defendant had “mental disabilities.” R., Vol. 1 at 75. After further discussion the court ruled that counsel should continue representing Defendant and sentenced Defendant to 48 months' imprisonment on the drug charge.

Next the court turned to the charges that Defendant had violated the terms of supervised release. It found that Defendant had committed the violations, but it declined to accept the parties' recommendation of a 12–month sentence and proposed three years. Defendant protested that his counsel had assured him that the recommended 12–month sentence was binding on the court, and asserted that he would have gone to trial on the drug-distribution charge if he had known that he could receive a sentence of more than 12 months' imprisonment for violating his supervised release. Defense counsel denied telling Defendant that the recommendation was binding, and the court sentenced Defendant to 36 months' imprisonment, to run consecutively to his 48–month sentence.

Defendant appeals both his distribution conviction and the revocation of supervised release. He raises four challenges: (1) that the district court conducted an inadequate inquiry into his request for new counsel and abused its discretion in denying his request; (2) that the district court abused its discretion in failing to construe his pro se pleading and various oral protests as motions to withdraw his plea; (3) that his plea was not knowing and voluntary because his counsel had given him inaccurate information; and (4) that his sentence on revocation of supervised release was procedurally and substantively unreasonable.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First, the district court conducted an adequate inquiry into Defendant's request for new counsel, and did not abuse its discretion in denying the request because defense counsel's explanation could persuade a reasonable jurist that counsel's performance had been satisfactory and that any failures of communication had been Defendant's fault. Second, the court did not err in declining to treat Defendant's pro se pleading and oral statements as motions to withdraw his plea because Defendant was represented by counsel who did not make a timely motion to permit withdrawal of the plea and Defendant's statements in any event were unclear or untimely. Third, Defendant did not raise in district court a challenge to the validity of his plea, and there is no plain error because the pertinent facts are not established in the record. And fourth, as to Defendant's sentence on violation of the terms of supervised release, he has failed to show plain error with respect to the procedural reasonableness of his sentence and his sentence was not substantively unreasonable.

I. BACKGROUNDA. Proceedings Before Plea to 2011 Drug Charge

In August 2006 Defendant pleaded guilty to the offense of possession of five grams or more of cocaine base with intent to distribute (the 2006 Conviction). See21 U.S.C. § 841(a)(1). He was eventually sentenced to 60 months' imprisonment, to be followed by a term of four years' supervised release. In November 2009 Defendant was transferred from a prison to a halfway house to complete his sentence. He was released from the halfway house and placed on supervised release in May 2010.

That December Defendant was indicted for being a felon in possession of a firearm. The government also filed a petition to revoke his supervised release, alleging his firearm offense, failure to report in person to the probation office, and failure to inform the probation office that he had left his job.

In a separate indictment filed the next month, Defendant was charged with conspiring between January 2009 and May 2010 to manufacture and distribute 50 grams or more of cocaine base. See id. § 841(a)(1), (b)(1)(A)(iii); id. § 846. Because Defendant had a prior felony drug conviction, he faced a statutory mandatory-minimum sentence of 10 years' imprisonment and a maximum sentence of life imprisonment. See id. § 841(b)(1)(B)(iii).

The district court held separate trials on the gun-possession and drug-conspiracy charges. A jury acquitted Defendant of the gun-possession charge. At the conspiracy trial the jury deadlocked, and the judge declared a mistrial.

B. Plea Agreement

Defendant then engaged in plea negotiations with the government. To encourage a guilty plea, the government stated that before any retrial it would file a superseding indictment charging Defendant with a drug offense that would carry a mandatory minimum sentence of 20 years' imprisonment. The parties reached an agreement, and on September 19, 2011, the government filed a superseding information accusing Defendant of distributing and possessing with intent to distribute an unspecified amount of cocaine base (carrying no mandatory minimum sentence, see id. § 841(b)(1)(C)), and Defendant filed a petition to enter a guilty plea to the information. Under the agreement the government would dismiss the conspiracy count in the indictment. Further, the parties agreed to a 48–month sentence under Fed.R.Crim.P. 11(c)(1)(C), recognizing that Defendant could withdraw his guilty plea if the district court did not agree to the stipulated sentence. SeeFed.R.Crim.P. 11(c)(5), (d)(2)(A). They also agreed to recommend a sentence of 12 months' imprisonment for Defendant's violation of his supervised release from his 2006 Conviction.¹

After conducting a plea colloquy the district court found that Defendant was competent to enter the plea, had entered the plea knowingly and voluntarily, and was guilty of the offense.

C. The Sentencing Hearing

The district court (although not the judge who had accepted the plea) set the same time for sentencing on the 2011 drug charge and the hearing on the petition to revoke Defendant's supervised release. Soon after the court announced that it would start with the sentencing, defense counsel stated that Defendant was dissatisfied with his representation and wanted new counsel appointed for him. He said that Defendant was “not listening at all,” R., Vol. 2, pt. 5 at 808, and explained:

[W]hen I come up to go over the original presentence investigation with him, I came up to meet with him, I had forgotten the actual physical document. I told him what was contained in it, I told him what the numbers were. As the Court can see from the presentence report, we didn't actually participate in it because of the 11(c)(1)(C) filing. I told him what the numbers were. Mr. Dunbar then immediately just left the interview room and would no longer talk.

I sent him a copy of the report. I also came back up to go over that with him and also after we had gotten the notice that we were doing the revocation, to go over the provision relative to the revocation, the standards on the revocation, and the general process of how that would work. At which point in time he wouldn't listen to anything and said, I'm just not listening anymore. I want to be done. I want to object to the PSR. I said what do you want to object to?

He was upset that the amounts—in this particular case, the numbers are essentially irrelevant, as I went over that with him, because of the 11(c)(1)(C). And he said, no, they still place me with too much amounts. And I tried to explain to him with different amounts it won't actually impact the numbers.

But he doesn't want to listen anymore, he doesn't believe I am advocating for him, and would like new counsel appointed. And, again, we just aren't communicating at all. Apparently, as Mr. Dunbar comes in today, he would still like new counsel.

Id. at 809–10. The court asked Defendant why he was worried about the drug amounts in the PSR when they would make no difference to his sentence if it accepted the plea agreement. But Defendant was not responsive. He said:

My point—like he come up—my objection to the PSI [sic] was [due] November 5th—November 7th. He come up [to the prison] on the 15th. And then he go—then he talk about he forgot [to bring the PSR] and he come up on Friday right before we go to court trying to go over it.

Somebody else had to...