United States v. Mancillas

• Decision Date: 23 January 2018
• Docket Number: No. 17-1254,17-1254
• Citation: 880 F.3d 297
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben MANCILLAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

880 F.3d 297

UNITED STATES of America, Plaintiff-Appellee,

v.Ruben MANCILLAS, Defendant-Appellant.

No. 17-1254

United States Court of Appeals, Seventh Circuit.

ARGUED DECEMBER 7, 2017

DECIDED JANUARY 23, 2018

Rehearing Denied March 21, 2018

Bob Wood, Attorney, [COR LD NTC US Attorney], OFFICE OF THE UNITED STATES ATTORNEY, Suite 2100, Ten W. Market Street, Indianapolis, IN 46204-3048, for Plaintiff-Appellee.

Peter W. Henderson, Attorney, [COR LD NTC Fed Public Defender], OFFICE OF THE FEDERAL PUBLIC DEFENDER, 300 W. Main Street, Urbana, IL 61801-0000, Thomas W. Patton, Attorney, [COR LD NTC Fed Public Defender], OFFICE OF THE FEDERAL PUBLIC DEFENDER, Suite 1500, 401 N. Main Street, Peoria, IL 61602-0000, for Defendant-Appellant.

Before Bauer, Manion, and Sykes, Circuit Judges.

Bauer, Circuit Judge.

A jury convicted Ruben Mancillas of two counts of possessing ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, he raises two challenges to his sentencing: (1) that he was denied the right to represent himself at sentencing; and (2) that the district court applied the wrong base offense level because the Indiana offense of strangulation is not a "crime of violence" for Sentencing Guidelines purposes. We hold that the Indiana offense of strangulation is a crime of violence for Sentencing Guidelines purposes, and thus, the district court did not err in calculating Mancillas’ base offense level. However, we remand for resentencing since the court summarily denied Mancillas’ clear and unequivocal request to represent himself at sentencing and failed to conduct a Faretta colloquy.

I. BACKGROUND

On August 4, 2015, Mancillas and his girlfriend engaged in a heated argument in their Indianapolis home. The argument drew the attention of Mancillas’ next-door neighbor, Donna Little, when she heard gunshots. When Little looked out her back door, she observed Mancillas outside wielding a gun, and promptly called the police.

When officers from the Indianapolis Metropolitan Police Department arrived, Mancillas ran into a wooded area behind his house. After the officers detained him, the officers discovered ammunition on Mancillas’ person, near the back-door of Mancillas’ house, and in a duffel bag belonging to Mancillas in the wooded area behind his house. No gun was ever recovered from the search.

Mancillas was indicted on January 20, 2016, with two counts of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Attorney Jeffrey Baldwin initially filed an appearance on behalf of Mancillas. However, Joseph Clearly of the Indiana Federal Community Defenders was appointed to represent Mancillas during his initial appearance. On May 23, 2016, Mancillas filed a pro se "Motion for Withdraw of Counsel," and shortly thereafter, without the district court’s intervention, Michael Donahoe of the Indiana Federal Community Defenders replaced Cleary as counsel.

Mancillas proceeded to trial with Donahoe as his attorney. After a two-day trial, the jury found Mancillas guilty of both counts.

On January 30, 2017, one day before Mancillas’ sentencing, the district court received a letter from Mancillas, dated January 18, 2017. In the letter, Mancillas asked the court to continue the sentencing, stating that they, meaning Mancillas and Donahoe, "were not prepared to proceed." Mancillas noted that there were "viable defenses" that were not presented at trial, and that he needed more time to "have all available documented material of facts to be presented by my defense counsel at my sentencing hearing."

At the beginning of the sentencing, the district court asked Mancillas if he had adequate time to read through the Pre-sentence Investigation Report (PSR) and go over it with Donahoe. Mancillas told the court he had not, and, referencing his letter, requested that the court continue the sentencing.

Mancillas sought to contest the PSR’s suggested application of a four-level enhancement to his base offense level for possessing ammunition in connection with the state felony offense of criminal recklessness, pursuant to U.S.S.G. § 2K2.1(b)(6)(B). See Ind. Code § 35-42-2-2(b)(1)(A) (2014). Mancillas disputed that he fired a gun in the incident, and he explained that in order to contest the enhancement, he wished to submit tape recordings of three phone calls, as well as to call a case agent to testify. Donahoe also objected to the application of this enhancement during the sentencing, but disagreed that playing the phone calls would assist in contesting the enhancement.

Mancillas then tied his request for a continuance to a request to proceed pro se:

So I won’t be able to—properly be able to defend myself today, and I’ve asked Mr. Donahoe to ask the Court to withdraw from the case. I feel he’s ineffective. He has been ineffective throughout the whole trial. He refused to call witnesses on my behalf. So he didn’t raise any viable issues.

Mancillas concluded by requesting that the court issue one final continuance in order to allow him "personally to be prepared for the sentencing hearing."

The court immediately decided Mancillas would not be allowed to proceed without Donahoe as counsel, stating, "In regards to relieving Mr. Donahoe of his representation, I am not going to do that, Mr. Mancillas." The court noted that Donahoe was Mancillas’ third lawyer, and reiterated that Donahoe would not be allowed to withdraw.

The court then asked Donahoe to opine on Mancillas’ request to continue the sentencing in order to play the phone calls, which resulted in a return to the issue of Mancillas’ request to represent himself:

Donahoe: I don’t think [the phone calls] help his case at all, and that’s not going to change. We could continue this for 30 days. It’s still not going to change.

So what he has expressed to me—and I don’t know if he still has this position or not—is that he wants to represent himself so that he can go down that path and play those calls for the Court.

The Court: I think I’ve hopefully indicated that I will not relieve Mr. Donahoe of his responsibilities. We will continue with this sentencing hearing today.

All right.

Mancillas: So Your Honor, you’re denying my request to proceed pro se?

The Court: I am.

Mancillas: And you’re also denying the continuance?

The Court: I am.

As the court continued with the sentencing, the prosecutor interjected to clarify the grounds for denying Mancillas’ requests to continue the sentencing and represent himself. The court noted that "in regards to the removal of Mr. Donahoe, this is Mr. Mancillas’ third lawyer....Mr. Donahoe’s been here for the trial. I think it would take another attorney way too long to get up to speed, have to review transcripts and such as that."

The sentencing proceeded that day, and the court imposed a 100-month sentence.

II. DISCUSSION

A. Mancillas’ Self-Representation Request

The Sixth Amendment implicitly entails a right to self-representation. Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant may proceed pro se as long as he can knowingly and intelligently waive his or her Sixth Amendment right to counsel. United States v. Clark , 774 F.3d 1108, 1112 (7th Cir. 2014).

In order to proceed pro se, a defendant must "clearly and unequivocally" raise the right to self-representation. See Faretta , 422 U.S. at 835, 95 S.Ct. 2525. Courts have required an unequivocal assertion of the right to self-representation in order to prevent a defendant from using an ambiguous waiver of the right to counsel as a tool to overturn his or her conviction. See United States v. Campbell , 659 F.3d 607, 612 (7th Cir. 2011), vacated on other grounds, sub. nom. Campbell v. United States, 568 U.S. 802, ––– S.Ct. ––––, 184 L.Ed.2d 1 (2012).

Moreover, a request to proceed pro se must be made in a timely fashion. United States v. Oakey , 853 F.2d 551, 553 (7th Cir. 1988). We have noted that "no case holds that an absolute right of self-representation exists after trial begins," United States v. Kosmel , 272 F.3d 501, 506 (7th Cir. 2001), and we have upheld the denial of requests to proceed pro se made in the middle of trial. See Oakey , 853 F.2d at 553–54 (finding no error in denial of "ambiguous" request to proceed pro se made prior to fourth day of trial).

However, we have also recognized that defendants can waive the right to counsel and proceed pro se post-trial and at sentencing. See United States v. Harrington , 814 F.3d 896, 900–01 (7th Cir. 2016) (finding a knowing and intelligent waiver of the right to counsel at sentencing).

Mancillas’ initial letter to the district court did not constitute a clear and unequivocal request for self-representation. In fact, the letter was framed as a request for a continuance, and contemplated that a continuance was necessary in order for his lawyer to present certain arguments Mancillas believed were necessary to contest a sentencing enhancement.

However, on the day of sentencing, Mancillas unequivocally raised the issue of self-representation, and his statements clearly indicated that he wished to proceed pro se. Mancillas told the court that he had "asked Mr. Donahoe ... to withdraw from the case," and that he needed a continuance in order to be "personally" prepared for the sentencing. Donahoe elaborated on Mancillas’ statements and said that Mancillas "wants to represent himself so that he can go down that path and play those calls for the Court."

More importantly, the district court clearly understood Mancillas’ statements as a request to proceed pro se: "In regards to relieving Mr. Donahoe of his representation, I am not going to do that, Mr. Mancillas." When Mancillas directly asked the court to confirm it was denying his "request to proceed pro se," the court did so, and then moved on with the sentencing.

All of these statements were more than sufficient to raise the issue of self-representation. At that point, the court should have performed a formal colloquy to address Mancillas’ request for...