US v. Wayne Thompson

Filing 920091130

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5225

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNE D. THOMPSON, a/k/a Buck Naked, a/k/a Wayne Donnell Thompson, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:08-cr-00309-RLW-1)

Submitted:

August 31, 2009

Decided:

November 30, 2009

Before MOTZ and Circuit Judge.

KING,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Mark Diamond, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Angela Mastandrea-Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Wayne D. Thompson appeals his conviction after a jury trial of one count of possession with intent to distribute

cocaine base within 1000 feet of a public school, in violation of 21 U.S.C. §§ 841(a), 860 (2006), and his 300-month sentence. We affirm. On appeal, Thompson first argues that his waiver of counsel and election to proceed and pro that se the the was involuntary, court of

unknowing, compounded

and its

unintelligent, error by

district

denying

Thompson

assistance

stand-by counsel.

The Sixth Amendment guarantees not only the

right to be represented by counsel but also the right to selfrepresentation. (1975). Faretta v. California, 422 U.S. 806, 819

The decision to represent oneself must be knowing and Id. at 835. Courts must entertain every

intelligent.

reasonable presumption against waiver of counsel. Williams, 430 U.S. 387, 404 (1977). the waiver v. was voluntary, 838 knowing, F.2d 105,

Brewer v.

The record must show that and intelligent. (4th Cir. United 1988).

States

Gallop,

110

Determination of a waiver of the right to counsel is a question of law to be reviewed de novo. United States v. Singleton, 107

F.3d 1091, 1097 n.3 (4th Cir. 1997). While a trial court must determine if a waiver of

counsel is knowing and intelligent, no particular interrogation 2

of the defendant is required, so long as the court warns the defendant of the dangers of self-representation so that "`his choice is made with his eyes open.'" F.2d 888, 890 (4th Cir. 1978) United States v. King, 582 omitted); see also

(citations

Singleton, 107 F.3d at 1097-98 (court must consider record as a whole, including the defendant's background, capabilities, and understanding of the dangers and disadvantages of self-

representation).

"The determination of whether there has been

an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances

surrounding that case, including the background, experience, and conduct of the accused." (1938). Our review of the record leads us to conclude that the district court did not err in granting Thompson's request to waive counsel and proceed pro se. limiting stand-by counsel's Nor did the court err in during the trial. Johnson v. Zerbst, 304 U.S. 458, 464

participation

Although a district court may allow "hybrid" representation in which the attorney and defendant both participate actively in the trial, declining to permit this type of representation does not violate a defendant's constitutional rights. Wiggins, 465 U.S. 168, 183 (1984). Thompson next argues that the evidence was McKaskle v.

insufficient to establish that his crime occurred within 1000 3

feet of a school.

A defendant challenging the sufficiency of United States v. Beidler, "[A]n appellate court's

the evidence faces a heavy burden. 110 F.3d 1064, 1067 (4th Cir. 1997).

reversal of a conviction on grounds of insufficient evidence should be confined to cases where the prosecution's failure is clear." United States v. Jones, 735 F.2d 785, 791 (4th Cir.

1984) (internal quotation marks omitted). A jury's verdict must be upheld on appeal if there is substantial evidence in the record to support it. United States, 315 U.S. 60, 80 (1942). Glasser v.

In determining whether

the evidence in the record is substantial, this court views the evidence in the light most favorable to the government, and

inquires whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a

conclusion of a defendant's guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). court In does evaluating not review jury the the sufficiency credibility all of of the the evidence, witnesses in this and the

assumes

that

the

resolved

contradictions

testimony in favor of the government. 148 F.3d 359, 364 (4th Cir. 1998).

United States v. Romer,

We have reviewed the trial

transcript and conclude that the evidence was sufficient. Thompson next argues that he was deprived of a fair trial due to the clear bias of the district court against him. 4

He asserts that the court did not allow him to cross-examine witnesses, present his case, or testify. A judge must recuse

himself in cases where the party seeking recusal files a timely and sufficient affidavit stating the judge has a personal bias or prejudice either against the affiant or in favor of any

adverse party, 28 U.S.C. § 144 (2006), or where his impartiality might reasonably be questioned. 28 U.S.C. § 455 (2006). The

alleged bias must stem from an extrajudicial source.

Liteky v.

United States, 510 U.S. 540, 555 (1994); Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984). Thompson did not file a motion seeking recusal of the trial judge or the affidavit required by § 144, and we conclude that he has failed to demonstrate any grounds for recusal

because the record demonstrates that "[t]he district judge did nothing even remotely inappropriate at any point during this case." 1995). United States v. Gordon, 61 F.3d 263, 268 (4th Cir. Moreover, the court properly exercised its discretion in

ruling that, if Thompson elected to testify, the court would ask questions of him and would not allow him to testify in narrative form. Thompson also argues that the district court failed to adequately consider his motion to exclude photographs stored in his cell phone. He argues that he was entitled to prior notice

and the opportunity to examine the photographs pursuant to Fed. 5

R.

Crim.

P.

16(a)(1)(E).

We

review

the

district

court's

evidentiary ruling for abuse of discretion. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).

United States v. The record does not

reflect any request for discovery filed by Thompson, which is a necessary predicate to the government's obligations under Rule 16(a)(1)(E). Moreover, the government's exhibit list included Thus,

the cell phone as an item to be introduced at trial.

Thompson was on notice that the cell phone would be introduced into evidence, the and his failure of the to file a discovery to allow request him to

relieved

government

obligation

inspect the phone and its contents prior to trial. court did not abuse its discretion in

The district Thompson's

overruling

objection. Thompson's final argument is that the district court erred at sentencing. He first asserts that the court failed to

specify the offense level and criminal history category it used to calculate his sentence. sentencing career hearing This argument is without merit. an extensive and the discussion court of The the

included

offender

sentencing

range,

specifically

noted the range that would have applied if Thompson were not a career offender. In granting Thompson's motion for a variance

sentence, the court elected to impose a non-Guidelines sentence that was not linked to an offense level and criminal history category. 6

Thompson next asserts that the district court failed to adequately explain how it applied the 18 U.S.C. § 3553(a) (2006) factors. `must make an "When rendering a sentence, the district court individualized assessment based on the facts

presented.'"

United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007)). Moreover, the district court must "state in open court" the particular reasons supporting its chosen sentence. 18 U.S.C. § 3553(c) (2006). In doing so, "[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2468 (2007). Carter, without 564 F.3d at The 328. Thompson's court assertion discussed of the error is

merit.

district

relevant

§ 3553(a) factors, the purposes of sentencing, and the enhanced sentencing structure for career offenders. The district court's

explanation of its sentence clearly reflects the individualized assessment required by Carter. Thompson's final assertion of sentencing error is that the court "said it was going to sentence Mr. Thompson to two times the statutory minimum sentence of ten years, or 240 months in prison, and then sentenced Thompson to 300 months in jail, instead." This argument is without merit, as it is clearly

7

based

on

a

misinterpretation

of

the

court's

statements

in

explaining its sentence. Accordingly, sentence. legal before we affirm Thompson's conviction and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

8