United States v. Utrera

259 F. App'x 724
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 2, 2008
Docket06-6364
StatusUnpublished
Cited by6 cases

This text of 259 F. App'x 724 (United States v. Utrera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Utrera, 259 F. App'x 724 (6th Cir. 2008).

Opinion

OPINION

R. GUY COLE, JR., Circuit Judge.

Defendant-Appellant Joel Utrera appeals his jury conviction of interstate domestic violence under 18 U.S.C. § 2261(a)(1) and his sixty-month sentence. Utrera contends that he was denied counsel at a critical stage of the proceedings, that venue was not proper, that evidence was admitted improperly and was, in any event, insufficient for a conviction, and that his sentence is unreasonable. For the reasons that follow, we AFFIRM the conviction and sentence.

I. BACKGROUND

Utrera and Diosmary Aguilar lived together for three years and have one child in common. They had a violent relationship, and when Aguilar left Utrera for another man in 2003, she obtained a domestic violence protection order against Utrera. Utrera, however, subsequently violated the order, stabbed her three times, and served fourteen months in prison for *726 the assault. Once Utrera was released in 2005, he and Aguilar began dating again, but Aguilar left him in March 2005 to reunite with Samuel Figueroa, a former boyfriend. At that time, Utrera was living with his mother in Louisville, Kentucky and Aguilar resided across the river in Jeffersonville, Indiana.

In the early morning hours of April 23, 2005, Utrera drove from his mother’s home in Louisville to Aguilar’s home in Jeffersonville. Aguilar was at home with Figueroa, Figueroa’s niece, and Aguilar’s and Utrera’s six-year-old son. Utrera broke though the living room window while holding a long metal object in his hand. Utrera’s head and upper body protruded through the window, but Figueroa stood by the window to keep Utrera from entering the premises. Aguilar called the police several times beginning at 1:19 a.m., but had difficulty communicating because she does not speak English. By the time the police arrived around 1:25 a.m., Utrera was gone. The police advised Aguilar to file a complaint, and around 4:00 a.m., the police arrested Utrera at his mother’s home in Kentucky.

On September 6, 2005 Utrera was charged by a three-count indictment with (1) transmitting a threat in interstate commerce, (2) crossing state lines with the intent to commit a crime of domestic violence, and (3) crossing state lines with the intent to violate a protective order. Prior to trial, Utrera moved to dismiss his attorney from the Federal Public Defenders’ office because he claimed that she did not provide his family with the correct location of a court hearing. His attorney filed a motion on his behalf requesting appointment of another attorney, but the magistrate judge found no misconduct and advised Utrera to cooperate with appointed counsel. The day before the trial was scheduled to start, Utrera again moved to dismiss his attorney. The district judge agreed with the magistrate judge’s decision and allowed Utrera to choose between representing himself, with or without a lawyer, or keeping the same counsel. Utrera chose to represent himself. Utrera changed his mind three hours later, after sitting through a pretrial hearing in which several evidentiary matters were discussed, and he decided to retain his prior counsel for trial. The judge then granted Utrera’s motion for continuance and scheduled another pretrial hearing to review the same matters addressed during the hearing in which Utrera had proceeded pro se. The day of trial, the district court granted Utrera’s motion to sever the counts, and the parties proceeded to trial on Count 2 alone, the interstate domestic violence charge under 18 U.S.C. § 2261(a)(1). After a four-day trial, the jury found Utrera guilty of the offense and issued a special finding that he had used a dangerous weapon during its commission. The district court sentenced Utrera to sixty months’ imprisonment and three years’ supervised release. The United States dismissed the remaining counts without prejudice. Utrera timely filed this appeal.

II. ANALYSIS

On appeal, Utrera makes five arguments: (1) he was denied counsel at a critical stage of the proceedings; (2) the Western District of Kentucky was not a proper venue; (3) the district court erred in admitting evidence pursuant to Fed. R.Evid. 404(b); (4) the evidence presented at trial was insufficient to support his conviction; and (5) the district court failed to consider the factors set forth in 18 U.S.C. § 3553 when imposing Utrera’s sentence. We address each in turn and conclude that all of Utrera’s arguments are without merit.

*727 A. Right to Counsel

Utrera argues that he was denied counsel at a critical stage in the proceedings— the pretrial conference during which he proceeded pro se—because, he claims, when he elected to proceed pro se he had not knowingly and intelligently waived his right to counsel. “The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all ‘critical stages’ of the criminal process.” King v. Bobby, 433 F.3d 483, 490 (6th Cir.2006) (citing United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). “[T]he period between appointment of counsel and the start of trial is indeed a ‘critical stage’ for Sixth Amendment purposes.” Hunt v. Mitchell, 261 F.3d 575, 582-83 (6th Cir.2001) (quoting Mitchell v. Mason, 257 F.3d 554, 566 (6th Cir.2001)). The Sixth Amendment also guarantees defendants the right to represent themselves at trial. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right to counsel and the right to self-representation are “two faces of the same coin, in that the waiver of one right constitutes a correlative assertion of the other.” United States v. Conder, 423 F.2d 904, 908 (6th Cir.1970) (internal citation omitted). When a defendant asserts his right to self-representation, therefore, he necessarily waives his right to counsel. Such decision, however, must be voluntary and knowing. Faretta, 422 U.S. at 835, 95 S.Ct. 2525.

Utrera contends that he was denied his right to counsel at a critical stage of the criminal process because he was “forced” to represent himself during a pretrial hearing. The record, however, shows that Utrera asserted his right to self-representation, thereby waiving his right to counsel.

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Bluebook (online)
259 F. App'x 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-utrera-ca6-2008.