United States v. Ruhbaya

369 F. App'x 497

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 12, 2010
• Docket: 094239
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4239

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAJUL RUHBAYAN, a/k/a Creme, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh’alamin, a/k/a Jibrael Ruhalamin,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:02-cr-00029-RBS-FBS-1)

Submitted: February 26, 2010 Decided: March 12, 2010

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert L. Flax, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, James Ashford Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Rajul Ruhbayan was convicted by a jury in 2002 of

conspiracy to commit perjury and obstruction of justice; witness

tampering; perjury; suborning perjury; and obstruction of

justice in connection with his 2000 trial on federal drug and

firearms charges. When he was initially sentenced in 2004, the

district court departed upward pursuant to U.S. Sentencing

Guidelines Manual § 4A1.3, p.s. (2003), and USSG § 5K2.0, p.s.,

to impose a sentence of life imprisonment, with three additional

concurrent five-year terms. We affirmed the convictions, but

found error in the four-level adjustment for a leadership role,

USSG § 3B1.1(a), and remanded for resentencing under United

States v. Booker, 543 U.S. 220 (2005). United States v.

Ruhbayan, 406 F.3d 292, 298 (4th Cir. 2005).

On remand, the district court recalculated the

advisory guideline range with a two-level role adjustment, USSG

§ 3B1.1(c), again departed upward from the guideline range, and

again imposed a life sentence. We affirmed the sentence.

United States v. Ruhbayan, 527 F.3d 107 (4th Cir. 2007).

The Supreme Court subsequently granted certiorari,

vacated this court’s judgment, and remanded for reconsideration

in light of Kimbrough v. United States, 552 U.S. 85 (2007)

(holding that district courts may consider the crack-to-powder-

cocaine guideline sentencing ratio as a possible basis for

2 variance from the guidelines). We decided that resentencing was

warranted, vacated the sentence, and remanded for resentencing

in light of Kimbrough. United States v. Ruhbayan, 294 F. App'x

23 (4th Cir. 2008).

The day before he was resentenced, Ruhbayan’s

appointed attorney moved to withdraw and Ruhbayan moved to

proceed pro se, stating that his attorney had refused to make

certain legal arguments he wanted to present. Ruhbayan asked

for new counsel or, alternatively, to be permitted to represent

himself with a new attorney to assist him. The district court

denied both motions, explaining that Ruhbayan’s attorney had

represented him through seven years of litigation, the narrow

legal issue before the court had been fully briefed, no new

circumstances warranted counsel’s withdrawal, and Ruhbayan would

be given an opportunity to make any arguments he wished the

court to hear.

The district court observed that, even if Ruhbayan’s

offense level were decreased by two levels according to the

revised guidelines for crack offenses effective in November

2007, his offense level would remain at 30 and his guideline

range would not change. The court heard Ruhbayan’s argument

that it was without subject matter jurisdiction over his case

and other issues and found them to be meritless. The court also

heard Ruhbayan’s allocution concerning the appropriate sentence.

3 The court then stated that, reconsidering the

previously-imposed sentence in light of Kimbrough, the court was

still of the view that, in this case, the crack/powder disparity

did not yield a sentence greater than necessary to achieve the

sentencing purposes set out in 18 U.S.C. § 3553(a) (2006). The

court reviewed its reasons for previously imposing a life

sentence and stated “the sentence previously imposed and

reimposed now is a sentence that is sufficient but not greater

than necessary to meet these statutory considerations[.]” The

court then reimposed a life sentence on the witness tampering

count, with concurrent sixty-month sentences for each of the

three other counts.

On appeal, Ruhbayan first argues that the court erred

in denying his motion for self-representation. A defendant has

a Sixth amendment right to represent himself at trial.

Faretta v. California, 422 U.S. 806 (1975). A defendant’s

assertion of his right of self-representation constitutes a

waiver of his right to counsel, and must be (1) clear and

unequivocal; (2) knowing, intelligent, and voluntary; and (3)

timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th

Cir. 2000).

In this circuit, after a defendant has been

represented at trial with counsel, his request to represent

himself is within the discretion of the district court. United

4 States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997).

Moreover, a defendant who wishes to proceed pro se does not have

a right under Faretta to the assistance of an attorney as stand-

by counsel or co-counsel. Id.

Here, Ruhbayan’s request to represent himself was

neither unequivocal nor timely. He was represented by counsel

at trial and during the appeal process. Not until his second

resentencing hearing did he ask for new counsel or,

alternatively, to represent himself with a new attorney as back-

up counsel. In addition, at sentencing, Ruhbayan’s attorney

stated that his client wanted him to make certain legal

arguments which he did not believe were justified. “A trial

court must be permitted to distinguish between a manipulative

effort to present particular arguments and a sincere desire to

dispense with the benefits of counsel.” Frazier-El, 204 F.3d at

560. The record makes clear that Ruhbayan’s request was “a

manipulative effort to present certain arguments[.]” Id.

Therefore, we conclude that the district court did not abuse its

discretion in denying Ruhbayan’s motion to represent himself at

his second resentencing hearing.

Next, Ruhbayan contends that the district court’s

reimposition of a life sentence was unreasonable. A sentence is

reviewed for reasonableness under an abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007).

5 Generally, this requires consideration of both the procedural

and substantive reasonableness of a sentence. Id. After

determining whether the district court properly calculated the

defendant’s advisory guideline range, we must decide whether the

district court considered the § 3553(a) factors, analyzed the

arguments presented by the parties, and sufficiently explained

the selected sentence. Id.; see also United States v. Carter,

564 F.3d 325, 330 (4th Cir. 2009). Finally, we review the

substantive reasonableness of the sentence, “taking into account

the totality of the circumstances, including the extent of any

variance from the guideline range.” Gall, 552 U.S. at 51.

Ruhbayan argues that the district court abused its

discretion when it reimposed a life sentence after his

culpability had been reduced on appeal; he specifically refers

to the leadership role adjustment (reduced from four levels to

two levels after his first appeal) and to the application of the

2007 reduced crack guidelines at his second resentencing.

Ruhbayan claims that the district court erred in limiting itself

to reconsideration of his sentence in light of Kimbrough and by

failing to take into account certain mitigating factors and

giving too much emphasis to his criminal history.

We conclude that these arguments are without merit.

Ruhbayan’s case was remanded for the limited purpose of

resentencing in light of Kimbrough. Before imposing sentence on

6 remand, the district court described the reason for the remand,

summarized the holding in Kimbrough, and acknowledged its

discretion to conclude that the crack/powder sentencing

disparity resulted in a sentence greater than necessary to

achieve the purposes set out in § 3553(a). The court then

determined that, in Ruhbayan’s case, the crack/powder disparity

did not yield a sentence greater than necessary to achieve

§ 3553(a)’s purposes and a downward variance from the guideline

range was not appropriate. We conclude that the district court

properly considered whether Kimbrough had any mitigating effect

and adequately explained its decision to reimpose a life

sentence. We further conclude that the extent of the departure

was reasonable.

We therefore affirm the sentence imposed by the

district court. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED