UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5225
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE D. THOMPSON, a/k/a Buck Naked, a/k/a Wayne Donnell
Thompson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00309-RLW-1)
Submitted: August 31, 2009 Decided: November 30, 2009
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Angela Mastandrea-Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne D. Thompson appeals his conviction after a jury
trial of one count of possession with intent to distribute
cocaine base within 1000 feet of a public school, in violation
of 21 U.S.C. §§ 841(a), 860 (2006), and his 300-month sentence.
We affirm.
On appeal, Thompson first argues that his waiver of
counsel and election to proceed pro se was involuntary,
unknowing, and unintelligent, and that the district court
compounded its error by denying Thompson the assistance of
stand-by counsel. The Sixth Amendment guarantees not only the
right to be represented by counsel but also the right to self-
representation. Faretta v. California, 422 U.S. 806, 819
(1975). The decision to represent oneself must be knowing and
intelligent. Id. at 835. Courts must entertain every
reasonable presumption against waiver of counsel. Brewer v.
Williams, 430 U.S. 387, 404 (1977). The record must show that
the waiver was voluntary, knowing, and intelligent. United
States v. Gallop, 838 F.2d 105, 110 (4th Cir. 1988).
Determination of a waiver of the right to counsel is a question
of law to be reviewed de novo. United States v. Singleton, 107
F.3d 1091, 1097 n.3 (4th Cir. 1997).
While a trial court must determine if a waiver of
counsel is knowing and intelligent, no particular interrogation
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of the defendant is required, so long as the court warns the
defendant of the dangers of self-representation so that “‘his
choice is made with his eyes open.’” United States v. King, 582
F.2d 888, 890 (4th Cir. 1978) (citations omitted); see also
Singleton, 107 F.3d at 1097-98 (court must consider record as a
whole, including the defendant’s background, capabilities, and
understanding of the dangers and disadvantages of self-
representation). “The determination of whether there has been
an intelligent waiver of the right to counsel must depend, in
each case, upon the particular facts and circumstances
surrounding that case, including the background, experience, and
conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464
(1938).
Our review of the record leads us to conclude that the
district court did not err in granting Thompson’s request to
waive counsel and proceed pro se. Nor did the court err in
limiting stand-by counsel’s participation during the trial.
Although a district court may allow “hybrid” representation in
which the attorney and defendant both participate actively in
the trial, declining to permit this type of representation does
not violate a defendant’s constitutional rights. McKaskle v.
Wiggins, 465 U.S. 168, 183 (1984).
Thompson next argues that the evidence was
insufficient to establish that his crime occurred within 1000
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feet of a school. A defendant challenging the sufficiency of
the evidence faces a heavy burden. United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997). “[A]n appellate court’s
reversal of a conviction on grounds of insufficient evidence
should be confined to cases where the prosecution’s failure is
clear.” United States v. Jones, 735 F.2d 785, 791 (4th Cir.
1984) (internal quotation marks omitted).
A jury’s verdict must be upheld on appeal if there is
substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). In determining whether
the evidence in the record is substantial, this court views the
evidence in the light most favorable to the government, and
inquires whether there is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). In evaluating the sufficiency of the evidence, this
court does not review the credibility of the witnesses and
assumes that the jury resolved all contradictions in the
testimony in favor of the government. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998). We have reviewed the trial
transcript and conclude that the evidence was sufficient.
Thompson next argues that he was deprived of a fair
trial due to the clear bias of the district court against him.
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He asserts that the court did not allow him to cross-examine
witnesses, present his case, or testify. A judge must recuse
himself in cases where the party seeking recusal files a timely
and sufficient affidavit stating the judge has a personal bias
or prejudice either against the affiant or in favor of any
adverse party, 28 U.S.C. § 144 (2006), or where his impartiality
might reasonably be questioned. 28 U.S.C. § 455 (2006). The
alleged bias must stem from an extrajudicial source. Liteky v.
United States, 510 U.S. 540, 555 (1994); Shaw v. Martin, 733
F.2d 304, 308 (4th Cir. 1984).
Thompson did not file a motion seeking recusal of the
trial judge or the affidavit required by § 144, and we conclude
that he has failed to demonstrate any grounds for recusal
because the record demonstrates that “[t]he district judge did
nothing even remotely inappropriate at any point during this
case.” United States v. Gordon, 61 F.3d 263, 268 (4th Cir.
1995). Moreover, the court properly exercised its discretion in
ruling that, if Thompson elected to testify, the court would ask
questions of him and would not allow him to testify in narrative
form.
Thompson also argues that the district court failed to
adequately consider his motion to exclude photographs stored in
his cell phone. He argues that he was entitled to prior notice
and the opportunity to examine the photographs pursuant to Fed.
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R. Crim. P. 16(a)(1)(E). We review the district court’s
evidentiary ruling for abuse of discretion. United States v.
Perkins, 470 F.3d 150, 155 (4th Cir. 2006). The record does not
reflect any request for discovery filed by Thompson, which is a
necessary predicate to the government’s obligations under Rule
16(a)(1)(E). Moreover, the government’s exhibit list included
the cell phone as an item to be introduced at trial. Thus,
Thompson was on notice that the cell phone would be introduced
into evidence, and his failure to file a discovery request
relieved the government of the obligation to allow him to
inspect the phone and its contents prior to trial. The district
court did not abuse its discretion in overruling Thompson’s
objection.
Thompson’s final argument is that the district court
erred at sentencing. He first asserts that the court failed to
specify the offense level and criminal history category it used
to calculate his sentence. This argument is without merit. The
sentencing hearing included an extensive discussion of the
career offender sentencing range, and the court specifically
noted the range that would have applied if Thompson were not a
career offender. In granting Thompson’s motion for a variance
sentence, the court elected to impose a non-Guidelines sentence
that was not linked to an offense level and criminal history
category.
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Thompson next asserts that the district court failed
to adequately explain how it applied the 18 U.S.C. § 3553(a)
(2006) factors. “When rendering a sentence, the district court
‘must make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 128 S.
Ct. 586, 597 (2007)).
Moreover, the district court must “state in open
court” the particular reasons supporting its chosen
sentence. 18 U.S.C. § 3553(c) (2006). In doing so,
“[t]he sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.”
Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,
2468 (2007).
Carter, 564 F.3d at 328. Thompson’s assertion of error is
without merit. The district court discussed the relevant
§ 3553(a) factors, the purposes of sentencing, and the enhanced
sentencing structure for career offenders. The district court’s
explanation of its sentence clearly reflects the individualized
assessment required by Carter.
Thompson’s final assertion of sentencing error is that
the court “said it was going to sentence Mr. Thompson to two
times the statutory minimum sentence of ten years, or 240 months
in prison, and then sentenced Thompson to 300 months in jail,
instead.” This argument is without merit, as it is clearly
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based on a misinterpretation of the court’s statements in
explaining its sentence.
Accordingly, we affirm Thompson’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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