United States v. Aguirre

87 F. App'x 200
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 3, 2004
DocketDocket Nos. 01-1317(L), 01-1428(CON)
StatusPublished

This text of 87 F. App'x 200 (United States v. Aguirre) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Aguirre, 87 F. App'x 200 (2d Cir. 2004).

Opinion

SUMMARY ORDER

Defendant Kenneth Hawkins, represented by counsel, and defendant Jose Aguirre, proceeding pro se, here appeal their judgments of conviction for conspiring to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846 (1994 & Supp. III 1998). Hawkins also appeals his sentence.

Full familiarity with the record is here assumed. Hawkins first argues that the district court should have sua sponte ordered a hearing to determine his competency to represent himself and plead guilty, and that he did not knowingly and intelligently do so. Having thoroughly reviewed the transcripts of the proceedings below, we cannot conclude that the district court abused its discretion in not ordering a competency hearing, see United States v. Quintieri, 306 F.3d 1217, 1232-33 (2d Cir.2002); United States v. Morrison, 153 F.3d 34, 46 (2d Cir.1998); United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir.1986), nor do we think the district court erred in finding that Hawkins knowingly and intelligently waived his rights to counsel, see United States v. Fore, 169 F.3d 104, 107-08 (2d Cir.1999); United States v. Tracy, 12 F.3d 1186, 1191-92 (2d Cir.1993), and to a trial by jury, see Fed.R.Crim.P. 11(b); United States v. Parkins, 25 F.3d 114, 117 (2d Cir.1994); Panuccio v. Kelly, 927 F.2d 106, 110 (2d Cir.1991). Although Hawkins’s legal arguments were certainly “bizarre,” United States v. Auen, 846 F.2d [203]*203872, 878 (2d Cir.1988), they are perfectly consistent with those of a willful, but sane, pro se litigant (and, we note, have been advanced by other defendants, see, e.g., United States v. Rogers, 16 Fed.Appx. 38, 39 (2d Cir.2001)), and they do not, in light of the complete record, provide “reasonable cause” to order a competency hearing, see 18 U.S.C. § 4241(a) (2000); Quintieri, 306 F.3d at 1233-34. On various occasions, Hawkins lucidly responded to questions from the bench and his own attorney and statements by the government’s attorneys, see, e.g., Tr. at 2-4, 26, 29 (July 25, 2001); Tr. at 2-4 (May 2, 2001); Tr. at 7 (Jan. 12, 2001); Tr. at 8-25 (Oct. 16, 2000); Tr. at 17-19 (May 25, 2000); Tr. at 3-10 (Apr. 19, 2000), which indicates that he had a “rational as well as factual understanding of the proceedings against him,” Morrison, 153 F.3d at 46. We also note that none of Hawkins’s attorneys, frustrated as they were with their client’s intransigence, suggested that Hawkins was incompetent. To the contrary, when explicitly asked by the district court during Hawkins’s guilty plea whether he had “any doubts as to his competency,” his stand-by counsel responded, “[n]o,” an opinion to which we give significant weight, see Quintieri, 306 F.3d at 1233. In light of the district court’s frequent and thorough colloquies with Hawkins, its painstaking efforts to explain the risks of self-representation and the sacrifices involved with a plea, and its exposure to his demeanor throughout the proceedings, we see no basis for substituting our judgment for that of the district court that Hawkins was competent, and we conclude that Hawkins voluntarily, knowingly, and intelligently waived his right to counsel and pled guilty to count one of the second superseding indictment.

As to Hawkins’s sentence, we likewise find no error. First, regarding a four-level enhancement for Hawkins’s leadership role pursuant to U.S.S.G. § 361.1(a), we review the district court’s ultimate conclusion de novo and the court’s findings of fact supporting its conclusion for clear error. United States v. Paccione, 202 F.3d 622, 624 (2d Cir.2000). In determining whether the defendant “was an organizer or leader of a criminal activity that involved five or more participants,” U.S.S.G. § 361.1(a), we note that the defendant can be counted as one of the participants, Paccione, 202 F.3d at 624, and “the Sentencing Guidelines only require that the defendant be an organizer or leader of one or more of those participants” for the enhancement to apply, United States v. Si Lu Tian, 339 F.3d 143, 156 (2d Cir.2003); see U.S.S.G. § 361.1 cmt. n. 2. Hawkins himself identified three co-conspirators-Kimball, Liberty, and Ciampi -at his plea, he agreed with the government that Rose carried money for him, and the pre-sentence report (the findings of which the district court adopted with certain modifications) indicates that Hawkins paid Rose and Kimball to perform certain tasks and that Liberty, Johnson, and Ciampi were investors in a drug enterprise that Hawkins organized. Accordingly, the district court’s conclusion that there were “at least six participants in [an] overarching conspiracy” that Hawkins organized was sufficiently supported by the record.1 And although the district court mis-spoke at one point by referring to Hawkins as a “leader or supervisor,” conflating the language used in U.S.S.G. § 361.1(a) and § 361.1(b), it is clear, based on the district judge’s other remarks on that page and elsewhere, and in light of the language [204]*204used in the pre-sentence report, that the district court intended to impose a four-level enhancement pursuant to U.S.S.G. § 381.1(a).

Second, as to the two-point enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, the district court found that Hawkins “willfully ... sought to intimidate ... two victims into not cooperating with the authorities,” which finding was not clearly erroneous, see United States v. Brown, 321 F.3d 347, 351 (2d Cir.2003), and is sufficient to support the enhancement, see United States v. Sanchez, 35 F.3d 673, 679-80 (2d Cir.1994).

Third, the district court’s conclusion that Hawkins did not accept responsibility (and thus did not deserve a reduction in sentence pursuant to U.S.S.G. § 3E1.1) is sufficiently supported by the record. See United States v. Jeffers, 329 F.3d 94, 102 (2d Cir.2003); United States v. Hirsch, 239 F.3d 221

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Related

United States v. Victoria Vamos
797 F.2d 1146 (Second Circuit, 1986)
United States v. Donald G. Auen
846 F.2d 872 (Second Circuit, 1988)
United States v. Carluin Sanchez
35 F.3d 673 (Second Circuit, 1994)
United States v. Arthur Morrison
153 F.3d 34 (Second Circuit, 1998)
United States v. Gore
154 F.3d 34 (Second Circuit, 1998)
United States v. Harry L. Fore
169 F.3d 104 (Second Circuit, 1999)
United States v. Zolton Williams
205 F.3d 23 (Second Circuit, 2000)
United States v. Gerald Hirsch
239 F.3d 221 (Second Circuit, 2001)
United States v. Carlos Garcia
291 F.3d 127 (Second Circuit, 2002)
United States v. Ernesto Quintieri, Carlo Donato
306 F.3d 1217 (Second Circuit, 2002)
United States v. Michael A. Brown
321 F.3d 347 (Second Circuit, 2003)
United States v. Henry
325 F.3d 93 (Second Circuit, 2003)
United States v. Si Lu Tian, Also Known as Ah Long
339 F.3d 143 (Second Circuit, 2003)
United States v. Rogers
16 F. App'x 38 (Second Circuit, 2001)

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Bluebook (online)
87 F. App'x 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-aguirre-ca2-2004.