United States v. Sharp

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2003
• Docket: 02-21117
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 4, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-21117 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD SHARP,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-740-ALL --------------------

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Reginald Sharp appeals from his conviction of being a felon

in possession of a firearm. He argues that the district court

committed reversible error when it removed him from the courtroom

during voir dire and when it refused to allow him to confer with

counsel regarding exercising his challenges for cause.

Sharp did not object to the continuation of proceedings in

his absence and, therefore, review is for plain error only. See

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-21117 -2-

United States v. Roberts, 913 F.2d 211, 216 (5th Cir. 1990). The

district court warned Sharp that he was to remain quiet and that

he would be removed from the courtroom if he continued his

disrespectful behavior. Neither the Supreme Court nor the

Federal Rules requires more. See Allen v. Illinois, 397 U.S.

337, 343 (1970); see also FED. R. CRIM. P. 43(c)(1)(C). Sharp has

not shown that his removal from the courtroom was plain error.

Sharp asserts, in a conclusional fashion only, that in

refusing counsel’s request for a recess, his constitutional

rights were violated and that he was prejudiced. These wholly

conclusional allegations are insufficient to show that the

district court’s decision “seriously affect[ed] the fairness,

integrity or public reputation of [the] judicial proceedings” and

are therefore insufficient to demonstrate plain error. See

United States v. Vasquez, 216 F.3d 456, 459 (2000).

Insofar as Sharp argues that his absence from the courtroom

deprived him of the ability to fully advise counsel on the

issuance of peremptory strikes, his reliance on United States v.

Alikpo, 944 F.2d 206, 210 (5th Cir. 1991) is misplaced, because

Sharp waived his right to be present; Alikpo did not.

Sharp concedes that his sufficiency-of-the-evidence argument

is foreclosed by United States v. Daugherty, 264 F.3d 513, 518

(5th Cir. 2001), cert. denied, 534 U.S. 1150 (2002), and he

raises it only to preserve its further review by the Supreme

Court. We are indeed bound by our precedent absent an No. 02-21117 -3-

intervening Supreme Court decision or a subsequent en banc

decision. See United States v. Stone, 306 F.3d 241, 243 (5th

Cir. 2002).

AFFIRMED.