United States v. Horton

• Decision Date: 30 August 2012
• Docket Number: No. 11–4052.,11–4052.
• Citation: 693 F.3d 463
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Timothy Tyrone HORTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

693 F.3d 463

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy Tyrone HORTON, Defendant–Appellant.

No. 11–4052.

United States Court of Appeals,Fourth Circuit.

Argued: May 18, 2012.

Decided: Aug. 30, 2012.

ARGUED:Samuel A. Forehand, Law Office of Samuel A. Forehand, PA, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before AGEE, DAVIS, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded in part by published opinion. Judge AGEE wrote the opinion, in which Judge THACKER joined. Judge DAVIS wrote a separate opinion concurring in part and concurring in the judgment.

OPINION

AGEE, Circuit Judge:

Timothy Tyrone Horton appeals his conviction for possessing a firearm while a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and also appeals the district court's imposition of a sentence of life imprisonment. For the reasons set forth herein, we affirm Horton's conviction. We conclude, however, that the district court erred in applying the murder cross-reference provision in United States Sentencing Guidelines Manual (“USSG” or “Guidelines”) § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which error substantially increased Horton's advisory Guidelines range. Accordingly, we vacate Horton's sentence and remand for resentencing.

I. Background and Proceedings Below

The offense for which Horton was charged, and ultimately convicted by a jury, occurred on August 10, 2007.¹ On that date, Horton was at the home of his girlfriend, Timeca Bryant. The couple argued after Ms. Bryant learned Horton had a gun, which he told her he was holding for a friend. Horton left the home and, while outside, fired three shots, one of which hit Ms. Bryant's unoccupied vehicle. He fired the other two into the air. Ms. Bryant came out and obtained Horton's gun. She then returned to her home, taking the gun with her, and locked herself inside. Once inside, she called the police, and Horton left the premises. When police arrived, officers found three spent .22 casings, a bullet hole in Ms. Bryant's car, and retrieved from Ms. Bryant the gun—a .22 rifle with a sawed-off stock and sawed-off barrel. Investigation revealed that the gun had been stolen during a breaking and entering of an Exxon store in July 2006.

In February 2008, Horton contacted the police and said he wanted to speak with them about this incident, at which point he confessed to possession of the gun on August 10, 2007. He was arrested and charged in this case with violating 18 U.S.C. §§ 922(g)(1) and 924, being a felon in possession of a firearm.

Horton pled not guilty and proceeded to a trial by jury. The jury in his first trial was unable to reach a verdict and the court declared a mistrial. After a second trial, the jury found Horton guilty and he was sentenced by the district court to life imprisonment. Horton filed a timely motion for new trial, which the district court denied. He timely appealed from both the conviction and sentence, and from the denial of his motion for new trial.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II. Challenges to the Conviction

Horton raises two challenges to his conviction. First, he contends that the district court abused its discretion in denying his motion for substitution of counsel. Second, he argues that the district court abused its discretion in denying his motion for new trial predicated on what Horton describes as the Government's failure to disclose material impeachment evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons discussed below, we reject both of these challenges.

A. Motion to Substitute Counsel

We first address Horton's claim that the district court erred in denying his motion for substitute counsel. Clarke Speaks was appointed as Horton's counsel on March 25, 2008. On October 1, 2008, two months before his scheduled arraignment, Horton filed a pro se motion for substitute counsel, his first such motion. In the motion, Horton asserted that he was “not satisfied with Mr. Clark Speaks [sic] representation and believe[d] it [to] be in [his] best [i]nterest for a change of counsel....” (JA 87.) He offered no additional details in support of his motion.

The district court denied the motion without a hearing in an order filed October 7, 2008. In that order, the court “advised” Horton that, although “he has a Constitutional right to court-appointed counsel if he is unable to afford an attorney, he is not entitled to appointment of the attorney of his choice.” (JA 88 (citations omitted).) The order further informed Horton that he could “go forward with his court-appointed counsel, Mr. Speaks,” or he could “represent himself, with Mr. Speaks acting as back-up counsel to assist him with legal questions that may arise.” ( Id. at 89.) In its order, the district court also noted that Horton would be required prior to his arraignment on December 8, 2008, to advise the court under oath whether he wanted to continue with Speaks' representation or to represent himself with Speaks as back-up counsel. This inquiry never took place, although the court did ask general questions regarding Horton's satisfaction with this attorney, and Horton did not express any dissatisfaction. Neither Horton nor Speaks ever raised the issue with the court again and Speaks represented Horton at both trials.

On February 17, 2010, approximately three months after the jury verdict convicting Horton, Speaks moved to withdraw from representation. His motion included the statement that he and Horton, “[d]uring the course of the Attorney–Client Relationship ... have reached an impasse resulting from irreconcilable differences” and that this impasse was “prevent[ing] the communication necessary to prepare and implement an adequate defense.” (JA 587.) The court granted the motion without a hearing, and directed the Federal Public Defender to assign substitute counsel, which was done.

We review the denial of Horton's motion for substitute counsel for abuse of discretion. See United States v. Smith, 640 F.3d 580, 587–91 & n. 6 (4th Cir.2011). In cases where a district court has denied a request by a defendant to replace one court-appointed lawyer with another court-appointed lawyer, this Court considers three factors to determine whether the initial appointment “ceased to constitute Sixth Amendment assistance of counsel”: “(1) the timeliness of the motion; (2) the adequacy of the court's subsequent inquiry; and (3) ‘whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense.’ ” Id. at 588 (quoting United States v. Gallop, 838 F.2d 105, 108 (4th Cir.1988)).

Applying these factors here, it is clear that the motion was timely made, and the Government does not contend otherwise. Similarly, the Government does not contend-nor could it-that the district court made any inquiry into the reasons for Horton's dissatisfaction with his counsel. This fact distinguishes this case from Smith, in which there was at least some inquiry into the reasons for the dissatisfaction and we held there was no abuse of discretion. Here, because of the district court's complete failure to conduct any inquiry, this Court is essentially left with an incomplete record upon which to determine the third factor: the extent of the breakdown in communication and whether it was so great that it prevented an adequate defense. Accordingly, we will assume, without deciding, that the district court abused its discretion in denying Horton's motion without conducting any inquiry into the reasons for his dissatisfaction with counsel or any inquiry as to the extent of any breakdown in communication.

We nonetheless conclude that Horton is not entitled to a reversal of his conviction because the error was harmless and did not result in any prejudice to him. See, e.g.,Fed.R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); United States v. Young, 470 U.S. 1, 13 n. 10, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (in addressing claim of prosecutorial misstatements, “a reviewing court could reverse an otherwise proper conviction only after concluding that the error was not harmless.”); United States v. Wilks, 46 F.3d 640, 644 (7th Cir.1995) (“Even if ... the district court abused its discretion when it denied [the defendant's] request for new counsel, such an error [was] harmless” because defendant failed to show that counsel rendered constitutionally ineffective assistance and thus there was no Sixth Amendment violation).

In this case, there is clear evidence that Speaks provided an adequate defense at both trials. For example, he filed pre-trial motions in limine, he cross-examined government witnesses, and he strongly advocated for his client throughout both trial proceedings. Indeed, the first trial resulted in a hung jury, which is attributable in some part to Speaks' performance as an adequate advocate for Horton.

Notably, Horton does not identify—let alone show—any specific way in which his defense was hampered by any lack of communication with his counsel. In fact, on two different occasions after Horton's motion to substitute was denied, he appeared before the district court and was placed under oath. By his failure to assert otherwise in response to questions posed by the court, Horton indicated that he had “ample opportunity to discuss his case with his attorney,” that he had “discussed his case with his attorney,” and that he was “completely and fully satisfied with his attorney's...