United States v. Timas Bernard Nolley, Sr.

27 F.3d 80, 1994 U.S. App. LEXIS 14405, 1994 WL 250517

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 13, 1994
• Docket: 92-5519
• Status: Published

Opinions

Affirmed by published per curiam opinion. Judge HALL wrote a dissenting opinion.

OPINION

PER CURIAM:

Defendant Timas Nolley, Sr. appeals his sentence for cocaine violations, alleging he was not represented by counsel at a re-sentencing hearing ordered by this Court. We hold that since resentencing simply conformed to the mandate of an appellate court, leaving no discretion in the trial court, any error in failing to have defendant represented by counsel at the hearing was harmless.

On appeal of Nolley’s conviction of multiple counts involving cocaine and food stamps, this Court, in an unpublished opinion, 937 F.2d 604, remanded the case to the district court with instructions to vacate one of the two convictions under 21 U.S.C. § 841 and to decrease by fifty dollars the amount assessed against defendant under 18 U.S.C. § 3013.

At resentencing, Nolley appeared without an attorney, having previously fired his court-appointed attorney. The district court did precisely what it was instructed to do by this Court.

Nolley’s argument that he is entitled to have his sentence reversed because he did not have an attorney at the resentencing is without merit.

The purpose of the proceeding was to reduce the defendant’s sentence according to the mandate of this Court. Assuming, without deciding, that the district court erred by failing to appoint Nolley counsel for resen-tencing, such error was plainly harmless. Satterwhite v. Texas, 486 U.S. 249, 256-57, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988) (applying harmless error analysis to a Sixth Amendment violation). Cf. Fed.R.CrhnJP. 43(e)(4). United States v. Rogers, 853 F.2d 249, 252 (4th Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988) (applying harmless error analysis to Rule 43 violations). United States v. Ruthers, 989 F.2d 496 (4th Cir.1993) (same).

In this case, there was no function for either the defendant or counsel to perform. The district court had no choice but to follow the specific mandate of the appellate court. Defendant does not argue on this appeal that the district court did not follow precisely the instructions of this Court, or that the resulting sentence could be any different from that imposed or could have been affected in any way by the representation of counsel.

This hearing did not involve the substantial rights that require the presence of counsel under the authority of the cases relied upon by defendant. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); United States v. Gillis, 773 F.2d 549, 559 (4th Cir.1985); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

Unlike cases where the purpose of the hearing is to impose a new sentence after the original sentence has been set aside, United States v. Moree, 928 F.2d 654 (5th Cir.1991); United States v. Taylor, 11 F.3d 149 (11th Cir.1994), at which both defendant and counsel would undoubtedly be required, there is no purpose for either in a case where the district court has no function but to follow the sentencing mandate of the appellate court to reduce an existing sentence. E.g., United States v. Jackson, 923 F.2d 1494, 1496-1497 (11th Cir.1991); United States v. Shubbie, 778 F.2d 199, 200 (5th Cir.1985); Youst v. United States, 151 F.2d 666, 668 (5th Cir.1945).

Although it would be the better practice for the district court to hear from an attorney for the defendant at any hearing where a sentence is imposed, the circumstances of this case make the error harmless. The only relief that could be granted on this appeal would be to remand for a new hearing with an attorney present. Since it would be reversible error for the district court to impose a sentence different than the one now appealed, such an exercise would be a useless waste of judicial resources.

AFFIRMED.