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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10140 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-20582-JEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAKEEM ASAAD DAVIS, a.k.a. Poo Poo,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(June 12, 2019)
Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-10140 Date Filed: 06/12/2019 Page: 2 of 18
Rakeem Davis appeals his conviction and sentence for unlawful possession of
a firearm and ammunition. He argues that he is entitled to a new trial for two reasons:
(1) the district court failed to conduct an inquiry into his counsel’s pretrial motion to
withdraw; and (2) the court failed to give a special instruction to the jury to ensure
unanimity with respect to the factual grounds of conviction. He also challenges his
sentence, arguing that the court procedurally erred by failing both to verify that he
and his counsel had reviewed the presentence investigation report and to calculate
the guideline range. After careful review, we reject these arguments and affirm.
I.
Davis was indicted in August 2017 for possession of a firearm and
ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The
indictment charged possession of a Browning 9mm handgun and ten rounds of 9mm
ammunition on July 29, 2017. Davis pled not guilty.
About two weeks before the trial was scheduled to start in late October 2017,
Davis’s counsel, Ruben Garcia, who had been appointed in early September 2017
under the Criminal Justice Act, 18 U.S.C. § 3006A, moved to withdraw. Counsel
sought withdrawal due to “unreconcilable differences about the conduct of the
Defendant’s defense and because Mr. Davis does not trust counsel and he wishes to
proceed to trial.” Counsel explained that he had met with Davis four times and had
gone over the evidence, jury instructions, voir dire questions, the government’s
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intent to introduce Rule 404(b), Fed. R. Evid., evidence, and a plea offer and
proposed factual proffer. At the last conference, according to counsel, Davis had
“angrily ended” the conversation and asked for Garcia to withdraw. Counsel wrote
that “Davis does not believe undersigned counsel is acting in Defendant’s best
interest and believes that counsel wants the Defendant to plead guilty.”
Nevertheless, counsel stated that he had informed the government that Davis was
going to trial.
The district court denied the motion a few days later at a status conference.
The court stated that it had reviewed the motion and the reasons given therein. The
court then addressed Davis as follows:
Mr. Davis, I just want to tell you, you can replace him with any lawyer you want if you can hire a lawyer, but you got a competent lawyer. Mr. Garcia is a competent lawyer that has been tried and tested. We have - - he has tried many cases in front of me. He is a competent lawyer. He may not be telling you what you want to hear, but I bet he’s telling you what the law is. And if you find another lawyer, I want to tell you that he better be ready to go to trial next week because that’s when the trial is set. Excuse me. A week from Monday.
And whether -- it seems to be the motion du jour over at the prison now that a week or two before trial, they say oh, I don’t like my lawyer anymore, he’s not giving me good advice and I’m not going to take it anymore, I want a new lawyer and then try to get a continuance. I don’t know for what reason, but it’s not happening. The case is going to trial.
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Without asking to hear from Davis or Garcia, the court found that Garcia was “more
than capable of representing [Davis]” in this “very simple case” and denied the
motion to withdraw.
The case proceeded to trial. A confidential informant (“CI”) testified that he
met up with Davis and Emmanuel Duncanson on July 28. According to the CI,
Duncanson asked the other two if they had a gun, and Davis said he could get one.
The CI further testified that Davis gave directions to an apartment. On the way,
Duncanson announced that he wanted to kill a man named Ike for interfering with
his sister’s drug business. At the apartment, the CI attested, Davis showed
Duncanson two handguns and a rifle, which were lying on a bed. Duncanson
selected one of the handguns, and Davis carried it out of the house. The CI then
drove Duncanson and Davis to an apartment complex where they spotted Ike. The
CI explained that when Davis refused to shoot at Ike, Duncanson grabbed the gun
and fired several shots out of the car window, which missed, as the CI sped away
from the scene.
At 2:00 a.m. the next morning, July 29, federal law-enforcement agents
executed a search warrant at the apartment where Davis had retrieved the gun before
the shooting. Davis and a woman were present in the apartment. The search
revealed two handguns: (1) a Browning 9mm loaded with three rounds of
ammunition; and (2) an SCCY 9mm loaded with seven rounds of ammunition.
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According to the CI, both guns were present at the apartment before the shooting,
but only the SCCY 9mm was used in the shooting. A federal law-enforcement agent
testified that Davis was not charged with possession of the SCCY 9mm because
there was no evidence it had moved in interstate commerce. The parties stipulated
that Davis was not permitted to possess a firearm due to a prior felony conviction.
Based upon the parties’ joint proposed jury instructions, the district court
informed the jury that “[t]he sole count of the indictment charges the Defendant with
being a felon in possession of a firearm and ammunition,” and that the jury would
be given a copy of the indictment. The court instructed the jury that the offense had
two elements: (1) knowing possession of a firearm or ammunition in or affecting
interstate commerce, (2) that occurred after having been convicted of a felony. The
court cautioned the jury that Davis was “on trial only for the specific crime charged
in the indictment” and that it was the jury’s job “to determine from the evidence in
this case whether the Defendant is guilty or not guilty of that specific crime.” The
court further advised that the “verdict, whether guilty or not guilty, must be
unanimous. In other words, you must all agree.” Finally, when going over the
general verdict form—which simply asked the jury to find whether Davis was guilty
or not guilty—the court reiterated to the jury that the verdict needed to be unanimous.
Defense counsel did not object to these instructions.
The jury unanimously found Davis guilty.
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Davis’s presentence investigation report (“PSR”) recommended a total
offense level of 24 and criminal-history category of V. This established a
recommended guideline imprisonment range of 92 to 115 months. Davis did not file
any objections. The government filed a sentencing memorandum.
The district court began sentencing by stating that it had reviewed the PSR,
the government’s sentencing memorandum, and the addendum to the PSR, and the
court noted that no objections had been made. The court then asked the parties for
their views on an appropriate sentence. The government asked for a sentence at the
“high end of the guidelines,” citing the seriousness of the offense conduct and
Davis’s substantial criminal history. Davis’s counsel argued for a sentence at “the
low end of the guidelines, 92 months,” referencing the PSR and asserting that
Davis’s criminal history was due to drug abuse, lack of guidance, and other
circumstantial factors. Davis personally requested 92 months.
The district court sentenced Davis to 100 months. The court explained that it
believed Davis was “a danger to the community” but that it wanted to give Davis an
opportunity to reform by sentencing him “toward the low end of the guideline
range,” though not “all the way down to 92.” Davis did not raise any objections at
sentencing. He now appeals.
II.
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Davis first appeals the denial of his counsel’s motion to withdraw, which we
will characterize as a “substitution motion.” Davis argues that the district court erred
in failing to conduct an inquiry into why he wanted new counsel and that he was
prejudiced by counsel’s continued representation during trial.
Substitution motions must be decided “in the interests of justice,” 18 U.S.C.
§ 3006A(c), a standard that “contemplates a peculiarly context-specific inquiry,”
Martel v. Clair, 565 U.S. 648, 663 (2012). In reviewing substitution motions, we
consider several factors, including the timeliness of the motion; the adequacy of the
court’s inquiry into the merits of the motion; and the asserted cause for the motion,
including the extent of the conflict or breakdown in communication between the
defendant and his counsel. Id.; United States v. Calderon, 127 F.3d 1314, 1343 (11th
Cir. 1997). “Because a trial court’s decision on substitution is so fact-specific, it
deserves deference[.]” Martel, 565 U.S. at 663–64. We may overturn it “only for
an abuse of discretion.” Id. at 664; Calderon, 127 F.3d at 1343.
The first factor—the timeliness of the motion—slightly favors denial. While
counsel appears to have promptly moved to withdraw when asked by Davis, the
substitution motion was filed just two weeks before the trial was scheduled to begin
and after a continuance had already been granted. While we see nothing to indicate
intentional delay, we also understand the court’s concern about the potential for
delay. Cf. Robinson v. Boeing Co., 79 F.3d 1053, 1055 (11th Cir. 1996) (“Courts
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have long accepted that resulting delay may justify the exercise of a trial judge’s
discretion to deny substitute counsel in the midst of litigation.”).
The second factor—the adequacy of the court’s inquiry—cuts in favor of
Davis. As the Supreme Court has stated, “courts cannot properly resolve substitution
motions without probing why a defendant wants a new lawyer.” Martel, 565 U.S.
at 664. The district court must engage in at least some inquiry about “the source and
factual basis” of the defendant’s dissatisfaction with an attorney, even if the judge is
professionally acquainted with the attorney. United States v. Young, 482 F.2d 993,
995 (5th Cir. 1973)1; see also Brown v. United States, 720 F.3d 1316, 1336 (11th
Cir. 2013) (“The trial court is obliged to explore the extent of the conflict and any
breakdown in communication between the lawyer and the client.”). Moreover, such
“an on-the-record inquiry into the defendant’s allegations ‘permit[s] meaningful
appellate review’ of a trial court’s exercise of discretion.” Martel, 565 U.S. at 664.
The district court here addressed the substitution motion at a hearing and
considered the reasons for withdrawal listed in the motion. But the court did not
probe the extent of the conflict and any breakdown in communication,
notwithstanding the court’s professional familiarity with Davis’s counsel or its
1 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 8 Case: 18-10140 Date Filed: 06/12/2019 Page: 9 of 18
doubts about the motivations behind the motion. See Brown, 720 F.3d at 1336;
Young, 482 F.2d at 995.
Nevertheless, we do not believe that the district court’s failure to probe more
deeply is enough, on this record, to render the court’s ruling an abuse of discretion.
That’s because Garcia, Davis’s counsel, listed the reasons for withdrawal in the
substitution motion, and the court reasonably could have concluded that further
inquiry was unnecessary because the clearly listed reasons did not warrant
substitution. See McKee v. Harris, 649 F.2d 927, 934 (2d Cir. 1981) (“If the reasons
are made known to the court, the court may rule without more.”); cf. Young, 482
F.2d at 995 (stating that inquiry is necessary when the defendant presents a
“seemingly substantial complaint about counsel”). In other words, the third factor—
the asserted cause for the motion—strongly favors denial of the motion.
“An indigent criminal defendant has an absolute right to be represented by
counsel, but he does not have a right to have a particular lawyer represent him, nor
to demand a different appointed lawyer except for good cause.” Thomas v.
Wainwright, 767 F.2d 738, 742 (11th Cir. 1985); see United States v. Garey, 540
F.3d 1253, 1263 (11th Cir. 2008) (en banc). Whether good cause exists “cannot be
determined ‘solely according to the subjective standard of what the defendant
perceives.’” Thomas, 767 F.2d at 742 (quoting McKee, 649 F.2d at 932). For that
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reason, “[a] defendant’s general loss of confidence or trust in his counsel, standing
alone, is not sufficient.” Id.
Here, the substitution motion reveals little more than Davis’s “general loss of
confidence or trust in his counsel,” Garcia. Id. According to the motion, the conflict
between attorney and client was that Garcia wanted Davis to accept the
government’s plea offer, but Davis wanted to proceed to trial. As a result, Davis did
not trust Garcia and did not believe that Garcia was acting in his best interests. In
resolving the motion, the court understood that the nature of the conflict stemmed
from Davis’s dissatisfaction with Garcia’s plea advice, see Doc. 85 at 2 (“He may
not be telling you what you want to hear, but I bet he’s telling you what the law is.”),
which alone does not constitute good cause, see McKee, 649 F.2d at 932–33
(defendant’s dissatisfaction with counsel’s “frank advice” to plead guilty does not
amount to good cause). And the record reflects that Garcia respected Davis’s desire
to proceed to trial and was prepared for it. Because the clearly listed reasons in the
substitution motion did not indicate that Davis could establish good cause, we cannot
say that the court abused its discretion in denying the motion without a probing
inquiry.
Nevertheless, we acknowledge that our review is inhibited by the district
court’s lack of a formal inquiry. See Martel, 565 U.S. at 664. All we have to go on
is the substitution motion itself. And the motion may not fully convey “the extent
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of the conflict and any breakdown in communication,” which is why further inquiry
by the court is generally necessary. See Brown, 720 F.3d at 1336.
However, while the district court should have probed the matter more deeply
at the status hearing, and even assuming the court erred in failing to do so, we
conclude that the failure to conduct an inquiry in this case was harmless. 2 See
McKee, 649 F.2d at 933 (“[W]hile [the trial judge] should have conducted a formal
inquiry, the failure to do so in this case was harmless.”). In his briefing on appeal,
Davis does not suggest any other reason beyond those listed in the motion that would
have been elicited by a formal inquiry. His reply brief merely states that he “lacked
confidence in his attorney’s ability or willingness to advocate effectively on his
behalf,” which is not sufficient to warrant substitution. See Thomas, 767 F.2d at
742. Nor can we infer a breakdown in communication from the trial errors allegedly
committed by counsel—asking a particular question on cross-examination and
failing to request a special verdict—since they do not appear to stem in any way
from the dispute that precipitated the substitution motion. Aside from those
2 Our harmlessness inquiry focuses on the state of facts at the time of the substitution motion. While Davis argues that the failure to inquire into a substitution motion warrants a new trial, a remedy some courts have granted in the past, the Supreme Court has now stated that “[t]he way to cure that error” is to remand to the district court “to decide whether substitution was appropriate at the time of [the substitution motion].” Martel, 565 U.S. at 666 n.4 (noting that the court of appeals had “ordered the wrong remedy even assuming the District Court had abused its discretion in denying Clair’s substitution motion without inquiry”). Because the remedy for a lack of inquiry would be remand for consideration of the substitution motion, we must consider whether Davis could show on remand that substitution was appropriate at the time the motion was filed. 11 Case: 18-10140 Date Filed: 06/12/2019 Page: 12 of 18
unrelated errors, Davis has pointed us to nothing in the record that would suggest
that the conflict between Davis and Garcia affected Davis’s trial defense.
Accordingly, despite the court’s failure to conduct an appropriate inquiry, we cannot
conclude that Davis was harmed by that failure.
We therefore affirm the district court’s denial of the substitution motion.
III.
Davis next argues that the district court plainly erred by failing to instruct the
jury that it was required to reach a unanimous decision about which, if any, firearm
or ammunition Davis possessed, and where and when any possession occurred. He
says that jurors could have made conflicting findings on these points, in violation of
his Sixth Amendment right to a unanimous jury verdict, because the evidence
showed possession of guns or ammunition at three separate points: (1) before the
shooting, when the guns were at the apartment; (2) during the shooting, when the
uncharged gun was used; and (3) after the shooting, when both guns and all
associated ammunition were found in separate locations in the apartment.
We review this argument for plain error because Davis did not object to the
jury instructions before the district court. United States v. Felts, 579 F.3d 1341,
1343 (11th Cir. 2009). Under the “plain error” standard, the defendant must
demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error
affected substantial rights. Id. at 1344. “An error is not plain unless it is contrary to
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explicit statutory provisions or to on-point precedent in this Court or the Supreme
Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation
marks omitted). Further, “[j]ury instructions will not be reversed for plain error
unless the charge, considered as a whole, is so clearly erroneous as to result in a
likelihood of a grave miscarriage of justice, or the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Starke, 62
F.3d 1374, 1381 (11th Cir. 1995) (quotation marks omitted).
“[A] jury in a federal criminal case cannot convict unless it unanimously finds
that the Government has proved each element.” Richardson v. United States, 526
U.S. 813, 817 (1999). But “a federal jury need not always decide unanimously
which of several possible sets of underlying brute facts make up a particular element,
say, which of several possible means the defendant used to commit an element of
the crime.” Id. For instance, jury disagreement about whether a robber used a knife
or a gun—a disagreement about means—would not matter so long as the jury
“unanimously concluded that the Government had proved the necessary related
element, namely, that the defendant had threatened force.” Id.
Relying on Richardson’s distinction between elements and means, several of
our sister circuits have concluded that jury unanimity is not required as to the
particular firearm or ammunition possessed for purposes of § 922(g). E.g., United
States v. Pollock, 757 F.3d 582, 587–88 (7th Cir. 2014); United States v. Talbert,
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501 F.3d 449, 451–52 (5th Cir. 2007); United States v. DeJohn, 368 F.3d 533, 542
(6th Cir. 2004); United States v. Verrecchia, 196 F.3d 294, 298–301 (1st Cir. 1999).
These circuits have reasoned that unanimity is not required because the particular
firearm or ammunition possessed is not an element of the crime under § 922(g) but
instead the means used to satisfy the element of “any firearm or ammunition.” E.g.,
DeJohn, 368 F.3d at 541–42.
Here, Davis has not established plain error. Davis has identified no “on-point
precedent in this Court or the Supreme Court” holding that a special unanimity
instruction is required in the circumstances presented by this case. See Hoffman,
710 F.3d at 1232. Nor is it obvious or clear that the matters he wished to have
decided by special verdict are elements of the offense requiring unanimity, as
opposed to “possible sets of underlying brute facts [which] make up a particular
element” for which unanimity is not required. Richardson, 526 U.S. at 817. For
example, numerous circuits have held that jury unanimity is not required as to the
particular firearm or ammunition possessed. Pollock, 757 F.3d at 587–88; Talbert,
501 F.3d at 451–52; DeJohn, 368 F.3d at 542; Verrecchia, 196 F.3d at 298–301.
Accordingly, even assuming the court erred, the error was not “plain.”
Davis’s reliance on United States v. Garcia-Rivera, 353 F.3d 788 (9th Cir.
2003), is unavailing. First, that decision is from the Ninth Circuit, so it cannot
establish a “plain” error in this Circuit. See Hoffman, 710 F.3d at 1232.
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Second, even if Garcia-Rivera were somehow binding here, it is not on point.
The indictment in Garcia-Rivera charged possession of a firearm over a time frame
between May 19, 2001, and June 7, 2001. 353 F.3d at 790. At trial, the court
instructed the jury that, to find the defendant guilty, it must find that the possession
occurred (a) uninterrupted between May 19, 2001, and June 7, 2001; (b) about a
week after the purchase of the firearm; and (c) on June 7, 2001. Id. The court told
the jury that it “must unanimously agree that the possession occurred during (a)
above, or on (b) or (c) above.” Id. The Ninth Circuit held that this instruction was
“fatally ambiguous” because the “jury could have concluded that they were required
to decide unanimously only that possession occurred during any of the three times
enumerated, not that they had to unanimously agree on which one.” Id.
No similar ambiguity is present here. The indictment charged possession of
a single firearm and ammunition on a specific date, July 29, which was after the
shooting. And the district court’s unanimity instructions, though general, were not
“fatally ambiguous” like the choose-your-own-adventure instructions in Garcia-
Rivera. The court here repeatedly instructed the jury that its verdict must be
unanimous and the jurors “must all agree.” So even assuming there were multiple
possible sets of facts on which Davis’s conviction could have been based, jurors
would have understood from the court’s instructions that they were required to “all
agree” on which set of facts grounded the conviction. The instructions, considered
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as a whole, were not “so clearly erroneous as to result in a likelihood of a grave
miscarriage of justice” or to “affect the fairness, integrity, or public reputation of
judicial proceedings.” Starke, 62 F.3d at 1381.
For these reasons, Davis has not shown that the district court plainly erred in
failing to give a specific instruction on unanimity.
IV.
Finally, Davis contends that the district court procedurally erred at sentencing
in two ways: (1) failing to verify that Davis and his counsel had reviewed the PSR
and addendum, as required by Rule 32, Fed. R. Crim. P.; and (2) failing to calculate
the applicable guideline range at sentencing. We review these arguments for plain
error because they were raised for the first time on appeal. See United States v.
Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (applying plain-error review
where the defendant failed to object to a claimed procedural error).
Sentencing courts “should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range,” which is “the starting point and the
initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007). The failure to
calculate the guideline range is a “significant procedural error.” Id. at 51. Before
calculating the guideline range, the district court “must verify that the defendant and
the defendant’s attorney have read and discussed the [PSR] and any addendum to
the report.” Fed. R. Crim. P. 32(i)(1)(A). No specific inquiry is required for the
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district court to meet its obligation under Rule 32, as long as the record indicates that
counsel reviewed the PSR with the defendant. See United States v. Aleman, 832
F.2d 142, 144 & n.6 (11th Cir. 1987) (applying a prior version of Rule 32(i)(1)(A)).
Here, Davis has not established plain error. Even assuming that the district
court erred by failing to verify that Davis and his counsel had reviewed the PSR and
by failing to state the guideline range on the record at sentencing, Davis has not
shown that these errors affected his substantial rights. See Felts, 579 F.3d at 1343.
First, the sentencing transcript indicates that Davis’s counsel had reviewed the
PSR. After the court noted that there were no objections to the PSR, counsel argued
for a sentence at “the low end of the guidelines, 92 months,” which was the range
recommended by the PSR, and he cited facts from the PSR in support of that request.
Although the court did not verify that Davis personally had reviewed the PSR,
nothing in the record indicates that sentencing would have gone any differently had
the court personally questioned Davis.
Second, the record is clear that the district court implicitly adopted the PSR’s
guideline range of 92 to 115 months. And both parties framed their arguments based
on that range. The government asked for a sentence at “the high end of the guidelines
in this case[,] which is 115 months.” Davis’s counsel argued for a sentence at “the
low end of the guidelines, 92 months.” The district court then sentenced Davis
“toward the low end of the guideline range,” but not “all the way down to 92.”
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Because there was no confusion about the guideline range on which the sentence
was based, Davis has not shown that the court’s failure to state the guideline range
on the record affected his substantial rights.
V.
We affirm Davis’s conviction and sentence.
AFFIRMED.