United States v. Bruce Low, Jr.

401 F. App'x 664
CourtCourt of Appeals for the Third Circuit
DecidedDecember 1, 2010
Docket08-4395
StatusUnpublished
Cited by2 cases

This text of 401 F. App'x 664 (United States v. Bruce Low, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Bruce Low, Jr., 401 F. App'x 664 (3d Cir. 2010).

Opinions

OPINION

McKEE, Chief Judge.

Bruce Gordon Low appeals from the district court’s judgment of sentence arguing that the district court deprived him of his Sixth Amendment right to counsel by directing him to proceed pro se at his sentencing hearing. He also challenges the resulting sentence on numerous grounds. Although the district court was presented with an obviously vexing set of circumstances and tried to respond appropriately, we nevertheless conclude that the court did not afford Low his Sixth Amendment right to be represented by counsel at sentencing. Accordingly, for the reasons set forth below, we will vacate Low’s sentence and remand for resentencing.

I.

Because we write primarily for the parties, we will recite only the facts and procedural history that are necessary for the disposition of this appeal. Although Low’s change of plea colloquy and guilty plea occurred on September 28, 2006, his sentencing hearing did not occur until October 21, 2008. Four different attorneys represented Low during the lengthy period that began with Low’s guilty plea and ended with his sentencing hearing. Prior to appointing the fourth attorney to represent Low, the court warned Low that it would not appoint another. The court explained:

[TJhree attorneys have already been involved already.... Now, Mr. Low, giving greater respect to your right to counsel can be strained to the point where a Court can consider itself at the end of the line.... I’m going to appoint another counsel.... If you have any dispute with that counsel, he will not be relieved, he’ll be standby counsel and you’ll proceed pro se. There’s a limit to how many lawyers can be assigned to you under the circumstances of this case. So I’m saying very clearly this is the last person who will respond to the motion. If you have a disagreement with him, you argue it yourself pro se, he’ll be standby to assist you.... So I want you to understand that clearly, this is the last lawyer.

S.A. 52-53.

Despite the court’s warning that Low’s fourth attorney would be his last, Low sent [666]*666a letter asking the district court to remove his fourth attorney from the case and requesting appointment of a fifth attorney. The district court dismissed Low’s fourth attorney as Low requested. However, the court refused to appoint another attorney and ordered Low to proceed pro se at his sentencing hearing, with his fourth attorney serving as standby counsel.

Immediately following the hearing, the government sent a letter to the court stating:

As you know, during yesterday’s proceedings in this case, Your Honor granted the defendant’s mot®n to represent himself at sentencing, and directed Mr. Renner to no longer actively represent the defendant. After that hearing, it belatedly occurred to me that, before sentencing takes place, the Court should conduct a colloquy of the defendant pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), in order to insure that his decision to proceed pro se is knowing and voluntary.... I therefor[e] request that you conduct a Faretta colloquy of the defendant before the start of the sentencing hearing.

S.A. 93. In response to the government’s request for a Faretta colloquy, Low wrote a letter to the court objecting to any hearing and to the government’s representation that he had elected to proceed pro se, reiterating that he was forced to do so despite requesting appointment of new counsel.

Low’s sentencing hearing finally proceeded on October 21, 2008, with Low acting pro se and his fourth attorney serving as standby counsel. At sentencing, the district court explained to Low some of the dangers of proceeding pro se and told Low that he had waived his right to counsel by his conduct. However, the court’s explanation did not serve to warn Low of the risks of proceeding pro se because Low was already acting pro se at the time he received this information, and he was not given the opportunity to proceed at sentencing with his fourth attorney acting as counsel. At the conclusion of Low’s sentencing hearing, the district court sentenced Low to 151 months of imprisonment on the drug offense and a concurrent sentence of 120 months of imprisonment on the firearms offense.

II.1

Although Low does not contest that the district court properly deemed his conduct sufficiently dilatory to trigger a waiver by conduct, Low argues any such waiver was not valid because the district court failed to warn him of the dangers of proceeding pro se before forcing him to do so, and that his Sixth Amendment right to counsel was thereby violated.

We exercise plenary review over Low’s claim that the district court violated his Sixth Amendment right to counsel “since it is tantamount to a claim of an ineffective waiver of a constitutional right.” United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir.1995). The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. “It is well settled that the erroneous deprivation of a criminal defendant’s fundamental right to the assistance of counsel is per se reversible error.” Goldberg, 67 F.3d at 1103.

A waiver of the right to counsel is only valid if it is knowing, voluntary, and intelligent. Id. at 1099. In Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court [667]*667held that a trial court must warn the defendant of the dangers of proceeding pro se as a constitutional prerequisite to a valid waiver of the right to counsel. Moreover, in United States v. Welty, 674 F.2d 185, 189 (3d Cir.1982), we held that “a defendant’s waiver of counsel can be deemed effective only where the district court judge has made a searching inquiry sufficient to satisfy him that the defendant’s waiver was understanding and voluntary.” Thus, “our decision in Welty mandates that trial courts conduct a Faretta-type inquiry before permitting a defendant who asks to represent himself to do so.” Goldberg, 67 F.3d at 1099.

Although Low did not expressly waive his right to counsel, we have held that “[o]nce a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel.” Id. at 1100. However, a valid waiver by conduct “requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se." Id. at 1101. In Goldberg, we held that there was no valid waiver by conduct because the district court had failed to provide the defendant with a .Faretta[Welty colloquy concerning the risks of proceeding pro se. Id. at 1102-03.

It is undisputed that Low did not receive a FarettafWelty colloquy.

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