NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 31 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10017
Plaintiff-Appellee, D.C. No. 2:20-cr-00045-DGC-1 v.
CARLOS DEVON LEWIS, AKA Carlos MEMORANDUM* Lewis,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 22-10018
Plaintiff-Appellee, D.C. No. 2:05-cr-00755-DGC-1 v.
CARLOS DEVON LEWIS,
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding
Submitted July 15, 2024**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California
Before: M. SMITH, BENNETT, and JOHNSTONE, Circuit Judges.
Carlos Lewis was sentenced to 300 months’ imprisonment for three armed
bank robberies after the district court concluded that Lewis qualified as a career
offender. Lewis waived his right to counsel after several hearings conducted
pursuant to Faretta v. California, 422 U.S. 806 (1975), and after Lewis stated at
several status conferences that he wished to represent himself. On appeal, Lewis
argues that the district court’s Faretta hearings were deficient, the district court
erroneously determined Lewis was a career offender under U.S.S.G. § 4B1.1, and
the district court imposed an unconstitutional condition of supervised release which
delegated judicial power to a nonjudicial actor.
“We review the validity of a Faretta waiver, a mixed question of law and fact,
de novo.” United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004). We affirm
the validity of Lewis’s waiver of his Sixth Amendment rights.
When “a district court’s sentencing of a defendant within the framework of an
incorrect Guidelines range goes unnoticed,” plain error review applies.1 Rosales-
1 Before the district court, Lewis asked, “The career offender points enhancement. What makes me a career offender?” Even if this question could be read as a specific objection to the career offender designation and not as a clarifying question, we would reach the same conclusion under de novo review. See United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir. 2010) (applying de novo review to a career offender designation where defendant objected to the career offender determination before the district court).
2 Mireles v. United States, 585 U.S. 129, 134 (2018) (quoting Molina-Martinez v.
United States, 578 U.S. 189, 193–94 (2016)). Plain error review also applies when
a condition for supervised release is not objected to before the district court. United
States v. Magdaleno, 43 F.4th 1215, 1219, 1221 (9th Cir. 2022). The government
agrees with Lewis that remand is appropriate both because the district court erred in
concluding Lewis was a career offender under the Guidelines and because the
supervised release condition needs to be clarified. We agree, and we remand to the
district court for resentencing and to clarify the supervised release condition.
1. Lewis’s waiver of his Sixth Amendment right to counsel was made
knowingly and after many robust Faretta hearings. “Although the district court need
not follow a particular script when conducting a Faretta hearing, it must ensure that
the defendant ‘understands 1) the nature of the charges against him, 2) the possible
penalties, and 3) the dangers and disadvantages of self-representation.’”2 United
2 Lewis does not argue that the district court failed to warn him of the dangers of self-representation. He argues the district court “primarily” erred by failing to inform him “of the potential statutory maximum penalty that [he] faced.” But Lewis also notes in passing that “there were other defects . . . including the district court’s failure to ensure that [he] understood the elements of 18 U.S.C. § 2113(d).” Even if we take Lewis’s brief as claiming that he was not apprised of the nature of the charges against him, we summarily reject that argument, because the district court specifically informed Lewis as to the nature of each charge, including that the indictment alleged (1) that Lewis robbed a bank; (2) “by force, violence, and intimidation”; (3) that the bank held deposits that were federally insured, “which is a requirement for federal jurisdiction in a case like this”; and (4) that “in the commission of the offense [Lewis] assaulted a person and put in jeopardy the life of
3 States v. Hantzis, 625 F.3d 575, 579–80 (9th Cir. 2010) (quoting Erskine, 355 F.3d
at 1167). “[A] defendant’s waiver must be evaluated in light of the record as a
whole.” United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009).
Lewis was aware of the potential penalties he faced if found guilty on the three
armed bank robbery charges. At an October 23, 2020 hearing on one of the robbery
charges, the government, at the direction of the court, informed Lewis that he was
“charged with one count of armed bank robbery. The maximum penalty is 25 years
imprisonment.” When he was arraigned on the superseding indictment less than one
month later, Lewis waived a reading of the superseding indictment, and his counsel
represented that he believed Lewis understood the indictment, which charged Lewis
with two additional counts of the same offense, each with the same maximum
penalty previously explained to him. This demonstrates Lewis understood the
maximum penalties he faced.
Further, at a September 1, 2021 hearing, which occurred after Lewis’s waiver
but before his bench trial,3 the government informed the court that “Lewis was
a person using a handgun,” all in alleged violation of 18 U.S.C. § 2113(a) and (d). Those are the elements required to prove armed bank robbery under § 2113(d). United States v. Odom, 329 F.3d 1032, 1035 (9th Cir. 2003) (quoting 18 U.S.C. § 2113(d)). When asked whether he understood the nature of the charges against him, Lewis answered affirmatively: “Yes. Okay. I got that understanding on that.” 3 The government correctly notes that post-waiver statements may only be evaluated “insofar as such statements bear on the specific question of what [the defendant] understood at the time he purportedly waived his right to counsel.” Erskine, 355 F.3d at 1170.
4 extended a plea offer previously, in February of 2021 while he was still represented.”
The government explained that “[t]he proposed resolution would have allowed him
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 31 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10017
Plaintiff-Appellee, D.C. No. 2:20-cr-00045-DGC-1 v.
CARLOS DEVON LEWIS, AKA Carlos MEMORANDUM* Lewis,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 22-10018
Plaintiff-Appellee, D.C. No. 2:05-cr-00755-DGC-1 v.
CARLOS DEVON LEWIS,
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding
Submitted July 15, 2024**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California
Before: M. SMITH, BENNETT, and JOHNSTONE, Circuit Judges.
Carlos Lewis was sentenced to 300 months’ imprisonment for three armed
bank robberies after the district court concluded that Lewis qualified as a career
offender. Lewis waived his right to counsel after several hearings conducted
pursuant to Faretta v. California, 422 U.S. 806 (1975), and after Lewis stated at
several status conferences that he wished to represent himself. On appeal, Lewis
argues that the district court’s Faretta hearings were deficient, the district court
erroneously determined Lewis was a career offender under U.S.S.G. § 4B1.1, and
the district court imposed an unconstitutional condition of supervised release which
delegated judicial power to a nonjudicial actor.
“We review the validity of a Faretta waiver, a mixed question of law and fact,
de novo.” United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004). We affirm
the validity of Lewis’s waiver of his Sixth Amendment rights.
When “a district court’s sentencing of a defendant within the framework of an
incorrect Guidelines range goes unnoticed,” plain error review applies.1 Rosales-
1 Before the district court, Lewis asked, “The career offender points enhancement. What makes me a career offender?” Even if this question could be read as a specific objection to the career offender designation and not as a clarifying question, we would reach the same conclusion under de novo review. See United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir. 2010) (applying de novo review to a career offender designation where defendant objected to the career offender determination before the district court).
2 Mireles v. United States, 585 U.S. 129, 134 (2018) (quoting Molina-Martinez v.
United States, 578 U.S. 189, 193–94 (2016)). Plain error review also applies when
a condition for supervised release is not objected to before the district court. United
States v. Magdaleno, 43 F.4th 1215, 1219, 1221 (9th Cir. 2022). The government
agrees with Lewis that remand is appropriate both because the district court erred in
concluding Lewis was a career offender under the Guidelines and because the
supervised release condition needs to be clarified. We agree, and we remand to the
district court for resentencing and to clarify the supervised release condition.
1. Lewis’s waiver of his Sixth Amendment right to counsel was made
knowingly and after many robust Faretta hearings. “Although the district court need
not follow a particular script when conducting a Faretta hearing, it must ensure that
the defendant ‘understands 1) the nature of the charges against him, 2) the possible
penalties, and 3) the dangers and disadvantages of self-representation.’”2 United
2 Lewis does not argue that the district court failed to warn him of the dangers of self-representation. He argues the district court “primarily” erred by failing to inform him “of the potential statutory maximum penalty that [he] faced.” But Lewis also notes in passing that “there were other defects . . . including the district court’s failure to ensure that [he] understood the elements of 18 U.S.C. § 2113(d).” Even if we take Lewis’s brief as claiming that he was not apprised of the nature of the charges against him, we summarily reject that argument, because the district court specifically informed Lewis as to the nature of each charge, including that the indictment alleged (1) that Lewis robbed a bank; (2) “by force, violence, and intimidation”; (3) that the bank held deposits that were federally insured, “which is a requirement for federal jurisdiction in a case like this”; and (4) that “in the commission of the offense [Lewis] assaulted a person and put in jeopardy the life of
3 States v. Hantzis, 625 F.3d 575, 579–80 (9th Cir. 2010) (quoting Erskine, 355 F.3d
at 1167). “[A] defendant’s waiver must be evaluated in light of the record as a
whole.” United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009).
Lewis was aware of the potential penalties he faced if found guilty on the three
armed bank robbery charges. At an October 23, 2020 hearing on one of the robbery
charges, the government, at the direction of the court, informed Lewis that he was
“charged with one count of armed bank robbery. The maximum penalty is 25 years
imprisonment.” When he was arraigned on the superseding indictment less than one
month later, Lewis waived a reading of the superseding indictment, and his counsel
represented that he believed Lewis understood the indictment, which charged Lewis
with two additional counts of the same offense, each with the same maximum
penalty previously explained to him. This demonstrates Lewis understood the
maximum penalties he faced.
Further, at a September 1, 2021 hearing, which occurred after Lewis’s waiver
but before his bench trial,3 the government informed the court that “Lewis was
a person using a handgun,” all in alleged violation of 18 U.S.C. § 2113(a) and (d). Those are the elements required to prove armed bank robbery under § 2113(d). United States v. Odom, 329 F.3d 1032, 1035 (9th Cir. 2003) (quoting 18 U.S.C. § 2113(d)). When asked whether he understood the nature of the charges against him, Lewis answered affirmatively: “Yes. Okay. I got that understanding on that.” 3 The government correctly notes that post-waiver statements may only be evaluated “insofar as such statements bear on the specific question of what [the defendant] understood at the time he purportedly waived his right to counsel.” Erskine, 355 F.3d at 1170.
4 extended a plea offer previously, in February of 2021 while he was still represented.”
The government explained that “[t]he proposed resolution would have allowed him
to plead guilty to one count of bank robbery, armed bank robbery, Count 3. As the
Court is aware, Mr. Lewis is aware, he’s charged with three counts.” The
government continued: “Lewis should be aware, the maximum penalty upon
conviction for each count of bank robbery is 25 years imprisonment.” Lewis
confirmed that he had received, understood, and rejected the plea deal. This further
supports that Lewis understood the maximum penalties he faced before he waived
the right to be represented by counsel.
2. The district court erred in finding Lewis qualified as a career offender under
U.S.S.G. § 4B1.1 due to two prior convictions that the district court concluded
qualified as crimes of violence as defined in U.S.S.G. § 4B1.2. The “[f]ailure to
calculate the correct Guidelines range constitutes procedural error.” Peugh v. United
States, 569 U.S. 530, 537 (2013).
One of the prior convictions on which the district court based its career
offender determination was a 1999 Hobbs Act conviction and the other was a 2005
bank robbery conviction. Relying on United States v. Dominguez, 954 F.3d 1251
(9th Cir. 2020), the district court concluded a Hobbs Act conviction is a conviction
for a crime of violence. But before Lewis’s sentencing, we decided United States v.
Prigan, 8 F.4th 1115 (9th Cir. 2021). Prigan held that “Hobbs Act robbery is not
5 categorically a crime of violence under” U.S.S.G. § 4B1.2 and expressly
distinguished Dominguez, which held that Hobbs Act robbery was a crime of
violence under 18 U.S.C. § 924(c), not U.S.S.G. § 4B1.2. Id. at 1121–22 & 1122
n.3. In light of Prigan, and with both parties in agreement, remand for resentencing
is appropriate.
3. On remand, the district court should clarify the conditions of Lewis’s
supervised release. “District judges enjoy broad discretion in fashioning the
conditions needed for successful supervision of a defendant, and we owe substantial
deference to the choices they make.” United States v. LaCoste, 821 F.3d 1187, 1190
(9th Cir. 2016). However, that discretion is not limitless, and “restrictions infringing
upon fundamental rights are reviewed carefully.” United States v. Soltero, 510 F.3d
858, 866 (9th Cir. 2007) (quotation marks omitted).
As a condition of Lewis’s supervised release, the district court ordered him to
“participate in mental health treatment as determined to be necessary by a medical
or mental health professional and follow any treatment directions by the treatment
provider.” Lewis argues this condition improperly delegates the right to determine
the extent of his punishment to a “nonjudicial officer” and thus runs afoul of our
recent opinion in United States v. Nishida, 53 F.4th 1144 (9th Cir. 2022). In Nishida,
we vacated two treatment conditions that gave the probation officer the authority to
require inpatient treatment. Id. at 1155. We explained that “a condition that plainly
6 read delegates to a nonjudicial officer the power to decide the nature or extent of the
punishment cannot stand in our constitutional system.” Id. (quotation marks
omitted). After Nishida was decided, the District of Arizona revised its mental
health treatment condition to clarify whether the district court is ordering inpatient
or outpatient treatment. The government does not object to remand on this issue.
Therefore, we remand to the district court to clarify the conditions of supervised
release consistent with Nishida.
AFFIRMED in part, REVERSED in part, and REMANDED.