UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4446
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES CARTER MCLEAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge; William A. Webb, Magistrate Judge. (5:05-cr-
00114-1F)
Submitted: February 13, 2007 Decided: March 7, 2007
Before WILKINS, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David W. Long, POYNER & SPRUILL, L.L.P., Raleigh, North Carolina,
for Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Felice McConnell Corpening, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Carter McLean was indicted in two counts for possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1), 924. After McLean informed the district court that he
did not want to be represented by his appointed counsel, the court
permitted him to proceed pro se. McLean thereafter pleaded guilty
to Count II, and the court sentenced him to 294 months’
imprisonment.
On appeal, McLean asks that his guilty plea be vacated
because the district court refused to appoint counsel; McLean did
not waive his right to counsel; and his guilty plea was not made
knowingly and voluntarily. For the following reasons, we reject
McLean’s arguments and affirm.
I
Following his arrest, McLean was appointed counsel from the
Office of Public Defender, who filed a motion to suppress evidence
seized at the time of McLean’s arrest. Due to a conflict of
interest, counsel had to withdraw from the case, and the court
appointed Attorney Michael Ramos to represent McLean. Ramos filed
another motion to suppress, this one relating to statements that
McLean made after being taken into custody. The district court
denied both motions to suppress.
At his arraignment, McLean and Attorney Ramos informed the
court that McLean did not want Ramos to represent him. McLean
2
told the court that he was dissatisfied with Ramos because Ramos
had replaced his former attorney and because Ramos gave
unsatisfactory answers to his questions. The court told McLean
that he would not receive another lawyer and that his only choices
were either to proceed with Ramos as counsel or to proceed on his
own with Ramos as standby counsel. McLean said that he did not
want Ramos as his lawyer. After the court conducted a Rule 11
colloquy, the court asked McLean how he wanted to plead, and
McLean refused to respond. The court entered a plea of “not
guilty” and told him again that Ramos would continue as McLean’s
standby counsel. In an order dated November 14, 2005, the court
confirmed McLean’s election to proceed pro se and continued trial
of the case until January 2006. On January 13, 2006, McLean
advised the court that he desired to plead guilty to Count II that
charged McLean as a felon with possession of a firearm. Before
accepting McLean’s plea, the court again reminded McLean of his
right to a jury trial and verified that McLean had conferred with
Ramos as standby counsel. The court also determined that McLean
understood the maximum punishment for the offense and the
applicable advisory sentencing guidelines range. After the
government moved to dismiss Count I, the court accepted McLean’s
plea.
Following sentencing, McLean filed this appeal.
3
II
McLean contends first that the district court abused its
discretion in failing to appoint substitute counsel for him.
In response to the district court’s questioning about
McLean’s election to fire counsel, McLean complained that Ramos
was not “appointed to him,” communicating in context that he
preferred his original counsel who had to recuse herself. McLean
also complained that Ramos would tell him “something different
every time he comes to see me and I be asking him about certain
questions, he can’t never give me -- tell me nothing about the
questions I’m asking.” McLean made no other complaints and gave
no information from which the court could have concluded that
Ramos was giving McLean ineffective legal assistance. Cf. United
States v. Mullen, 32 F.3d 891, 896 (4th Cir. 1994) (noting the
defendant’s specific allegations of counsel’s wrongdoing and then
rejecting them). Further, the record does not demonstrate a
“total lack of communication” between McLean and Ramos. See
United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). To
the contrary, McLean told the court that he and Ramos had been
communicating in the days leading up to the November 2005
arraignment. See id.
It appears that McLean simply disliked Ramos, and based on
the record, we can find no fault with the district court’s refusal
to appoint substitute counsel. See id. (“[A]n indigent defendant
4
. . . has no right to have a particular lawyer represent him and
can demand a different appointed lawyer only with good cause”).
III
McLean also contends that he never waived his right to
counsel so that his guilty plea, entered without the benefit of
counsel, was invalid. According to McLean, the court should have
appointed new counsel or required existing counsel to continue
representing him.
Although the Sixth Amendment guarantees the right to
assistance of counsel, a defendant may waive the right and elect
to proceed pro se if “the waiver is knowing, intelligent, and
voluntary.” United States v. Singleton, 107 F.3d 1091, 1097 (4th
Cir. 1997). Whether a defendant effectively waived his right to
counsel is a question of law and subject to our de novo review,
based upon an examination of the record as a whole. Id. at 1097
n.3.
The record in this case demonstrates that McLean voluntarily
waived his right to counsel. Once the district court determined
that a substitution of counsel was not warranted, the court
required McLean to choose between representation by appointed
counsel and proceeding pro se. McLean explicitly refused to
proceed with Ramos as his counsel, stating, “I don’t need him. .
. . He ain’t my lawyer. He didn’t get appointed to me. I don’t
5
want him.” McLean unequivocally expressed his wish to waive
counsel and to proceed pro se.
To assure that the waiver was knowing and intelligent, the
court explained the charges and the possible punishments, and
developed McLean’s educational background, age, and general
capabilities. See Gallop, 838 F.2d at 110. The court ascertained
at the November 2005 arraignment that McLean was 29 years old and
had attended school through the 11th grade and that he was
competent to enter a plea. Nothing in McLean’s background
suggested to the court that he was incapable of understanding the
decision to proceed pro se. Moreover, the court informed McLean
of the nature of proceedings, explaining the charges and the
maximum possible sentence that McLean faced, the consequences of
pleading guilty, and the rights associated with a trial. The
court also determined that McLean had received a copy of the
indictment, had discussed the case with Ramos, and did not have
any questions regarding his trial rights. Only after this
exchange did the court permit McLean to discharge his counsel. We
affirm the district court’s conclusion that McLean’s waiver of
counsel was knowing, intelligent, and voluntary.
IV
Finally, McLean contends that his guilty plea must be vacated
because the plea itself was not knowing and voluntary. He argues
particularly that his plea was not knowing and voluntary because
6
the district court failed to apprise him of the consequences of
pleading guilty.
A review of the record, however, amply demonstrates that
McLean’s guilty plea was knowing and voluntary. During the
November 2005 hearing, the district court ascertained McLean’s age
and education level, and found that he was competent to plea. The
court also engaged McLean in a full Rule 11 colloquy during which
the court explained in detail the rights associated with a trial,
the consequences of pleading guilty, and the sentencing process.
The court also explicitly notified McLean that he could waive his
right to appeal the denial of his motion to suppress if he agreed
to plead guilty. And during the January 2006 hearing, the
district court inquired, before accepting McLean’s plea, that no
one had threatened McLean or promised him anything in order to
induce his plea. McLean testified that no such inducements were
made. Indeed, nothing in the record suggests his McLean’s plea
was involuntary. Moreover, before accepting McLean’s guilty plea,
the court ensured that McLean knew what he was doing. The court
reminded McLean of the previous colloquy regarding his trial
rights, informing him again of his forfeiture of a jury trial by
pleading guilty; of the charges and punishments McLean faced; and
of the applicability of the advisory sentencing guidelines.
Further, the court inquired and confirmed that McLean comprehended
the rights he was waiving, that he had consulted with standby
7
counsel Ramos, and that he understood his charges and possible
punishments.
Moreover, when McLean expressed some concern during the
January 2006 proceeding about facing separate sentences for the
two counts, the court explained the circumstances and the
government dismissed Count I. This exchange also demonstrates
both McLean’s knowledge of, and active participation in, his plea.
In sum, we find that McLean knowingly and voluntarily entered
his plea.
The judgment of the district court is
AFFIRMED.
8