United States v. Gentry
| Decision Date | 28 October 2019 |
| Docket Number | No. 17-10165,17-10165 |
| Citation | 941 F.3d 767 |
| Parties | UNITED STATES of America, Plaintiff—Appellee v. Billy Fred GENTRY, Jr., also known as Fred Gentry ; Nicole Cynthia Herrera, also known as "Nikki Single"; Billy Ray Skaggs; Charles Ben Bounds, also known as Pretty Boy ; Trae Short, also known as "Twig"; Kevin Kyle Killough, also known as Kilo; Michael Clay Heaslet, Defendants—Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Emily Baker Falconer, Assistant U.S. Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
Michael Ray Harris, Dallas, TX, for Defendant-Appellant Billy Fred Gentry, Jr.
Camille M. Knight, Burleson, Pate & Gibson, L.L.P., Dallas, TX, for Defendant-Appellant Nicole Cynthia Herrera.
Doyle Raymond Bunch, III, Esq., Burleson, Pate & Gibson, L.L.P, Dallas, TX, for Defendant-Appellant Billy Ray Skaggs.
Shane John Stolarczyk, Esq., Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant Charles Ben Bounds.
Frank Dounell Able, Hurst, TX, for Defendant-Appellant Trae Short.
Derek D. Brown, Law Office of Derek Brown, Fort Worth, TX, for Defendant-Appellant Kevin Kyle Killough.
Peter Christian Smythe, Smythe, P.C., Fort Worth, TX, for Defendant-Appellant Michael Clay Heaslet.
Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
This case involves a direct criminal appeal by seven defendants from a jury trial that resulted in each defendant's conviction on a single count: conspiracy to possess with intent to distribute 50 grams or more of methamphetamine ("meth"). The defendants—Charles Ben Bounds, aka "Pretty Boy" ("Bounds"), Nicole Cynthia Herrera, aka "Nikki Single" ("Herrera"), Michael Clay Heaslet ("Heaslet"), Billy Ray Skaggs ("Skaggs"), Kevin Kyle Killough, aka "Kilo" ("Killough"), Billy Fred Gentry, Jr., aka Fred Gentry ("Gentry"), and Trae Short aka "Twig" ("Short")—each appeal a distinct set of issues ranging from pretrial rulings to sentencing decisions. We hold that the district court erred in calculating the quantity of drugs attributable to Killough at sentencing. We AFFIRM on all other issues. We therefore VACATE Killough's sentence and REMAND to the district court for resentencing.
Following the government's third superseding indictment, a grand jury in the Northern District of Texas returned a true bill charging all seven defendants with one count: violation of 21 U.S.C. § 846, conspiracy to possess with intent to distribute meth. Although not all of the defendants were members of the Aryan Brotherhood of Texas, trial evidence connected the conspiracy to that group.
The case proceeded to a jury trial, which was held over four days from August 29 through September 1, 2016. Various cooperating witnesses testified about their own roles in the conspiracy as well as the defendants' roles. The government also introduced testimony from local law enforcement officers and case agents from the Drug Enforcement Administration ("DEA") and the Department of Homeland Security ("Homeland Security"). The jury found all seven defendants guilty of the single count in the indictment.
Thereafter, the district court sentenced each defendant separately, as follows:
Each defendant filed a timely notice of appeal.
Bounds argues that the district court erred in denying his motions to substitute counsel and his attorney's motions to withdraw because: (1) his attorney had an irreconcilable conflict of interest, and (2) there had been a complete breakdown in communication. Bounds asserts both that these errors violated his Sixth Amendment rights and amounted to an abuse of discretion. Bounds also appeals the district court's application of a two-level obstruction-of-justice sentence enhancement under U.S.S.G. § 3C1.1. We AFFIRM.
The district court appointed Mark Danielson ("Danielson") to represent Bounds on April 12, 2016. On June 13, Bounds filed a pro se motion entitled, "Motion Amicus Curiae Adversary," which alleged that his counsel was ineffective. The district court issued a written order requiring Danielson to meet with Bounds and attempt to resolve their differences. The order advised, "Often what appear to be irreconcilable differences between a defendant and appointed counsel ... are nothing more than misunderstandings that can readily be resolved by frank and open discussions."
One day after Danielson and Bounds met, Bounds filed another motion entitled, "Defendants Motion to Dismiss Counsel." This motion complained that Danielson was filing motions without Bounds's permission, expressed Bounds's desire to obtain a full copy of his discovery, and stated that Bounds could not come to an understanding with Danielson. The district court set a hearing for July 1. At the hearing, the district court asked Bounds if it was still his desire to discharge Danielson, and Bounds said no. Bounds said he had changed his mind and the disagreement was based on a misunderstanding. Danielson agreed that he and Bounds could continue to work together.
About a month later, on July 25, Danielson filed a motion to withdraw. The motion explained that "[a]t the most recent attorney-client conference on July 15, 2016 the defendant refused to discuss trial preparation issues with counsel, instead resuming his complaints and accusing counsel of being dishonest with him." According to the motion, Bounds told Danielson that Bounds would "again complain to the judge about [Danielson's] representation and ask for new counsel," and then Bounds "stormed out of the conference room." The motion concluded, "Based on the foregoing, counsel believes that the attorney-client relationship is irreparably damaged and that he has no remaining option but to request to be relieved of further representation of the defendant."
The district court set a hearing on the motion for July 29, with trial set to begin on August 22. At the hearing, Mr. Bounds described his conflict with Danielson:
During counsel's appointment, my requests for discovery [have] continuously been denied, and, therefore, counsel's performance is deficient in this respect. Therefore, I respectfully request that the Court orders counsel to provide me with discovery in my case and all documents that are non-work product or trial material, and a continuance to allow me to review my case before I decide to accept a plea or reject a plea.
Danielson responded that he had shown Mr. Bounds copies of all the pertinent reports, but he could not give Bounds copies to keep in the jail. Ultimately, the district court concluded that the trial date was "too close" to "change an attorney." The district court admonished Bounds that Danielson was The district court also explained that "sometimes lawyers have to make judgments because of the time elements and do what they think is best for their client."
After the hearing, Bounds sent Danielson a series of emails detailing continued distrust and requesting that Danielson take various legal actions including "file a motion to [sever]" and a "motion of discovery." Danielson responded at some length, explaining his reasons for not filing the motions and clarifying that while the decisions of whether to plead guilty and testify belonged to Bounds, "other tactical decisions are for your lawyer to make."
On August 26, three days before trial was scheduled to begin, Danielson filed an "Ex-Parte Notice of Actual Conflict of Interest and Second Motion to Withdraw." The motion stated that "every conversation" Danielson had had with Bounds "included at least one outburst by Mr. Bounds complaining about [Danielson's] representation" and that Bounds had recently sent a "profanity-laced email" demanding a certain course of action. Danielson also explained that he had recently received notice from the Office of Disciplinary Counsel of the State Bar of Texas that Bounds had filed a formal grievance against him. The grievance had been dismissed, but that dismissal was appealable. Danielson explained that he felt he was now "essentially representing two parties who are involved in a legal conflict with one another: Mr. Bounds and myself."
On August 29, the morning trial began, the district court held a hearing on Danielson's second motion to withdraw. The district court denied Danielson's motion to withdraw, finding "no genuine or actual conflict" between Danielson and Bounds. The district court found, instead, that there was "a false, contrived conflict created by Bounds with the desired intent to disrupt the judicial process in this case."1 Trial proceeded without incident between Danielson and Bounds.
At sentencing, Danielson objected to a two-level sentence enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based on the conduct described above. The district court overruled Danielson's objection, stating that he had no reason to change his previous factual finding that Bounds had attempted to "obstruct the orderly procedures in this courtroom" and "interfere with the fair administration of justice." The district court ultimately sentenced Bounds to 360 months, at the bottom of the 360-to-480-months United States Sentencing Guidelines ("Guidelines") range.
"In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Sixth Amendment claims receive de novo review. United States v. Simpson , 645 F.3d 300, 307 ...
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