United States v. McLean

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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.

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 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

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. . . 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

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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

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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

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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.

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