FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50507
Plaintiff-Appellee,
v. D.C. No.
CR-00-01047-SVW
ANDREW HANTZIS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
August 31, 2010—Pasadena, California
Filed November 4, 2010
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
18233
18236 UNITED STATES v. HANTZIS
COUNSEL
André Birotte, Jr., United States Attorney, Christine C. New-
ell, Assistant United States Attorney, Kevin M. Lally, Assis-
tant United States Attorney, Los Angeles, California,
Attorneys for the plaintiff-appellee.
Wayne R. Young, Santa Monica, California, Attorney for the
defendant-appellant.
OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Andrew Hantzis challenges his con-
viction and sentence for possessing with the intent to distrib-
ute, and distributing, at least fifty grams of methamphetamine
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). He was
sentenced to two concurrent terms of 211 months’ imprison-
ment and five years of supervised release and ordered to pay
a $4,000,000 fine.
Hantzis argues that he was denied his Sixth Amendment
right to counsel because (1) the district court’s colloquy was
inadequate under Faretta v. California, 422 U.S. 806 (1975);
(2) the district court did not renew its Faretta warnings at a
subsequent evidentiary hearing and at sentencing in his case;
and (3) he was not appointed counsel at sentencing.
We conclude that the district court conducted an adequate
Faretta colloquy and that Hantzis knowingly and intelligently
UNITED STATES v. HANTZIS 18237
waived his right to counsel. We hold that the district court
was not required to engage in additional Faretta colloquies at
the subsequent evidentiary hearing or at sentencing in Hantz-
is’s case because no significant changes in circumstance
occurred. Finally, we hold that the district court did not err in
declining to appoint new counsel for counsel for Hantzis at
his sentencing. We affirm.
Other claims of error asserted by Hantzis in his appeal are
addressed in a memorandum disposition filed contemporane-
ously with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, California state authorities arrested and charged
Hantzis with possession of methamphetamine for sale. State
authorities arrested Hantzis for a second time in 2000, while
he was out of custody on bond for the first state charge. On
the occasion of his second arrest, Hantzis was charged with
manufacturing methamphetamine, possessing methamphet-
amine for sale, and possessing precursor chemicals with the
intent to manufacture methamphetamine.
While incarcerated at the Los Angeles County Jail, await-
ing release on bond concerning the second methamphetamine
trafficking charge, Hantzis befriended a prison informant, one
Gary Didio. Didio gave Hantzis the phone number of a pur-
ported drug trafficker named “Joe,” who was actually an
undercover detective named Marc Bender. After his release
on bail, Hantzis contacted Bender and sold him approximately
one pound of methamphetamine. The two made plans for
another, larger transaction, but their negotiations eventually
failed. Hantzis was ultimately arrested for possessing for sale
an additional pound of methamphetamine.
In October 2001, following a four-day trial, a federal jury
found Hantzis guilty of distributing and possessing with intent
to distribute at least fifty grams of methamphetamine, in vio-
18238 UNITED STATES v. HANTZIS
lation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). Hantzis was
sentenced on June 28, 2005, over three-and-a-half years after
his conviction.
A. Representation by counsel and the Faretta colloquy
The district court appointed attorney A.C. to represent Han-
tzis at trial. Following trial, Hantzis hired, or was appointed,
four different attorneys, including A.C. In January 2005, the
district court relieved A.C. for the second time, and Hantzis
began representing himself pro se.
Even during the time he was still represented by counsel,
Hantzis filed multiple pro se motions with the district court,
including: (1) a motion to admit newly discovered evidence;
(2) a motion for interlocutory appeal; (3) a motion to set aside
the judgment; (4) a petition for habeas corpus; (5) a petition
for writ of mandamus; and (6) a motion to dismiss. Addition-
ally, in 2003–2004, through an attorney, Hantzis sought to
challenge the drug evidence presented at trial by having his
own experts conduct tests. At trial, defense counsel did not
cross-examine the government’s drug expert or present
experts on Hantzis’s behalf.
The district court scheduled a hearing on Hantzis’s pro se
motions, but prior to the hearing, Hantzis filed an additional
motion seeking a continuance and notifying the court that he
wished to represent himself pro se. At the hearing, which
Hantzis’s then-attorney, A.C., did not attend, Hantzis told the
court that A.C. was no longer his attorney. The following col-
loquy ensued:
Court: And at this point we can’t go on
appointing lawyers foryou. Do
you intend to respond to the—
unless you want to hire a lawyer.
Do you want to hire a lawyer?
UNITED STATES v. HANTZIS 18239
Hantzis: Not at this time. I’m indigent, your
Honor.
Court: Do you want to represent your-
self?
Hantzis: Yes, your Honor.
Court: You know the hazards of repre-
senting yourself, do younot?
Hantzis: Yes, your Honor.
Court: You’re not trained in the law.
These issues could veryseriously
affect whether or not the convic-
tion remains, what your sentence
will be, and the fact that you rep-
resent yourself puts you at a
severe disadvantagewhich may
hurt you down the road. Do you
understand that?
Hantzis: Yes, your Honor.
Court: Now, we’ve got to bring this to a
close. Three years ofmotions with-
out sentence is almost unprece-
dented. . . .
After some discussion of the motions, the court again con-
firmed that Hantzis wanted to represent himself:
Court: Do you want a public defender, or
do you want torepresent yourself?
Hantzis: Your Honor, I want to represent
myself to go pro se.
18240 UNITED STATES v. HANTZIS
Court: All right. Then I’ll allow you to do
that, having told youabout the seri-
ous hazards of representing your-
self.
The judge then issued a bench warrant for attorney A.C., who
had failed to appear for the hearing.
The next day, A.C. appeared before the court and stated
that Hantzis wanted A.C. to continue representing him. Soon
thereafter, but before the court took any further action in the
case, Hantzis filed a request reiterating his intention to pro-
ceed pro se. The district court scheduled another hearing on
January 4, 2005, to confirm whether Hantzis wanted to pro-
ceed pro se. Hantzis began the proceeding with “Good morn-
ing, your Honor. Andrew Hantzis, representing myself,” and
then restated that he wanted to remain pro se.
After the district court granted his request to proceed pro
se, Hantzis filed numerous additional motions. His series of
pro se motions, which he prepared and filed both before and
after he was represented by counsel, collectively attacked the
legitimacy of the investigation, the prosecution, the trial, and
the conviction. The district court held an evidentiary hearing
on all of Hantzis’s motions on June 15, 2005, and issued a 64-
page written order denying them. The district court also ruled
that the drug evidence findings made by the government’s
expert and Hantzis’s expert were not significantly different
from each other.
B. Sentencing
In September 2003, while represented by counsel, Hantzis
filed a pro se sentencing memorandum addressing each of the
issues raised in the Presentence Report (PSR). Among other
arguments, Hantzis disputed the drug evidence based on his
expert’s testing. Hantzis also challenged the proposed Guide-
lines sentence. The government filed a response to Hantzis’s
UNITED STATES v. HANTZIS 18241
sentencing memorandum on June 24, 2005, agreeing with the
PSR’s sentencing calculations and requesting a high-end sen-
tence of 235 months. The government contended that the
high-end sentence was justified by Hantzis’s purported per-
jury and lack of remorse, and because he had committed the
crimes of conviction while he was out of prison on bail in two
other methamphetamine-trafficking cases.
At the sentencing hearing, Hantzis made a lengthy state-
ment to the court, arguing his reasons for challenging the
investigation and trial, and for questioning the competency of
his previous counsel. As part of his statement, Hantzis
accused the government and the court of “major fraud,” collu-
sion, and forgery, and argued that all of his attorneys were
incompetent. Hantzis then contended:
So, your Honor, there’s no way that I can get sen-
tenced because I don’t even know what charges have
been brought against me. And I need the assistance
of competent counsel who is not going to be hin-
dered by the government, that they have all been hin-
dered all the way from the beginning. . . .
When imposing Hantzis’s sentence, the district court evalu-
ated the 18 U.S.C. § 3553(a) factors, and then stated that
“while the Court recognizes it isn’t bound by the [G]uidelines,
[it] nevertheless finds that the [G]uidelines do provide a rele-
vant and appropriate measure of the sentence.” The district
court sentenced Hantzis to a mid-range term of 211 months in
prison and five years of supervised release.1 The court also
imposed a fine of $4,000,000.
1
Hantzis’s Guidelines range was 188 to 235 months, based on a base
offense level of 34 and a two-level enhancement for obstruction.
18242 UNITED STATES v. HANTZIS
DISCUSSION
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.
Whether a defendant knowingly and intelligently waived
his right to counsel is a mixed question of law and fact,
reviewed de novo. United States v. Erskine, 355 F.3d 1161,
1166 (9th Cir. 2004).
Hantzis argues that he was denied his Sixth Amendment
right to counsel because the district court (1) gave an inade-
quate Faretta colloquy; (2) failed to conduct a new Faretta
hearing at a subsequent evidentiary hearing in the case and at
sentencing; and (3) did not appoint counsel at sentencing, as
allegedly requested by the defendant. Hantzis is mistaken.
A. The district court’s Faretta colloquy was adequate
Hantzis asserts that his waiver was not knowing and intelli-
gent because the district court’s Faretta colloquy was defi-
cient. We disagree and hold that the district court conducted
an adequate Faretta colloquy.
[1] Although the district court need not follow a particular
script when conducting a Faretta hearing, it must ensure that
the defendant “understands 1) the nature of the charges
against him, 2) the possible penalties, and 3) the dangers and
disadvantages of self-representation.” Erskine, 355 F.3d at
1167 (internal quotation marks and citation omitted). A
waiver is knowing and intelligent if the defendant is “made
aware of the dangers and disadvantages of self-representation,
so that the record will establish that ‘he knows what he is
doing and his choice is made with eyes open.’ ” Faretta, 422
U.S. at 835 (quoting Adams v. United States ex rel. McCann,
317 U.S. 269, 279 (1942)).
[2] In this case, the court conducted the required colloquy
to ascertain that Hantzis knew the hazards of representing
UNITED STATES v. HANTZIS 18243
himself, and Hantzis acknowledged that he understood. Then
the court counseled Hantzis:
You’re not trained in the law. These issues could
very seriously affect whether or not the conviction
remains, what your sentence will be, and the fact that
you represent yourself puts you at a severe disadvan-
tage which may hurt you down the road. Do you
understand that?
Hantzis responded that he did. The court then explained at
length (running eight pages of transcript) what Hantzis should
expect from the upcoming proceedings. At the end of the col-
loquy, the court again inquired if Hantzis wanted new coun-
sel, confirmed that he wanted to proceed pro se, and granted
Hantzis’s motion.
In addition to what was said at the Faretta colloquy, the
record as a whole further confirms that Hantzis’s waiver was
knowing and intelligent. See United States v. Gerritsen, 571
F.3d 1001, 1008 (9th Cir. 2009) (“We have explained that a
defendant’s waiver must be evaluated in light of the record as
a whole[.]”) (citing United States v. Kimmel, 672 F.2d 720,
721-22 (9th Cir. 1982)); see also Erskine, 355 F.3d at 1170
& n.11 (explaining that the court may look to the circum-
stances of prior proceedings in the case to determine whether
defendant’s waiver was knowing and voluntary).
[3] Hantzis actively and personally participated in his own
defense from the outset of the case, sometimes with, and
sometimes without, the aid of counsel. For example, he partic-
ipated in two plea discussions and negotiations and, in his
four-day jury trial, filed numerous pro se motions about most
elements of the proceedings in his case, received and
reviewed the PSR, and wrote a sentencing memorandum. By
actively and intelligently participating in his own defense
from the beginning of the case, coupled with what was said
at the Faretta colloquy, Hantzis understood the nature of the
18244 UNITED STATES v. HANTZIS
charges against him, the possible penalties that could be
imposed against him, and the dangers and disadvantages of
self-representation. See Erskine, 355 F.3d at 1167. Hantzis’s
waiver clearly met the Faretta standard.
B. The district court was not required to renew the
Faretta colloquy at subsequent hearings in the case
Hantzis also claims that the district court erred by failing to
conduct a new Faretta colloquy at subsequent hearings in his
case. In particular, Hantzis argues that the district court
should have renewed its Faretta warnings prior to holding the
evidentiary hearing on drug testing, which required cross-
examination of the government’s expert, and again before his
sentencing, since that occurred subsequent to the date the
United States Supreme Court handed down its decision in
United States v. Booker, 543 U.S. 220 (2005).
[4] A properly conducted Faretta colloquy need not be
renewed in subsequent proceedings unless intervening events
substantially change the circumstances existing at the time of
the initial colloquy. We have held:
A competent election by the defendant to represent
himself and to decline the assistance of counsel once
made before the court carries forward through all
further proceedings in that case unless appointment
of counsel for subsequent proceedings is expressly
requested by the defendant or there are circum-
stances which suggest that the waiver was limited to
a particular stage of the proceedings.
United States v. Springer, 51 F.3d 861, 864-65 (9th Cir. 1995)
(concluding that the defendant’s retrial was “obviously” a
continuation of the criminal prosecution and previous waiver
was intended to stand absent an attempt to withdraw it (quot-
ing Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.
1969)); see also White v. United States, 354 F.2d 22, 23 (9th
UNITED STATES v. HANTZIS 18245
Cir. 1965) (holding that at resentencing, the district court
“was entitled to assume that the waiver was still in effect, and
was not required to again advise [defendant] of his right to
counsel” where defendant had waived counsel at the plea
stage).
[5] Our jurisprudence on this point is harmonious with that
of the other federal circuits that have considered the issue to
date; no federal appellate court has held that renewed Faretta
warnings are required at each subsequent court proceeding.2
The essential inquiry is whether circumstances have suffi-
ciently changed since the date of the Faretta inquiry that the
defendant can no longer be considered to have knowingly and
intelligently waived the right to counsel.
[6] In this case, the district court conducted an adequate
initial Faretta colloquy that satisfied each prong of Erskine.
See 355 F. 3d at 1167. Moreover, Hantzis knew at the time
of the Faretta colloquy that he would be sentenced shortly.
The court warned Hantzis that “we’ve got to bring this to a
close. Three years of motions without sentence is almost
unprecedented . . . .” During those three years, Hantzis had
the benefit of counsel from four different attorneys and was
2
See, e.g., United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004)
(adopting the rule that defendant’s waiver of counsel at trial carried over
to subsequent proceedings absent a substantial change in circumstances);
United States v. Unger, 915 F.2d 759, 762 (1st Cir. 1990); United States
v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989) (“Once the defendant has
knowingly and intelligently waived his right to counsel, only a substantial
change in circumstances will require the district court to inquire whether
the defendant wishes to revoke his earlier waiver.”); Panagos v. United
States, 324 F.2d 764, 765 (10th Cir. 1963) (concluding that there were no
facts or circumstances preventing “the initial waiver of the right to coun-
sel, knowingly and intelligently made, from extending to and being fully
effective at the time of sentencing” where only a reasonable amount of
time intervened between the plea and sentencing); Davis v. United States,
226 F.2d 834, 840 (8th Cir. 1955) (holding that defendant’s waiver of
counsel when pleading guilty was an implied waiver as to any subsequent
proceedings, including sentencing four days later).
18246 UNITED STATES v. HANTZIS
actively engaged in his own motions practice, including chal-
lenging the PSR and drug evidence.
[7] Further, there is nothing in the record to suggest that
any changes occurred during the six months leading up to sen-
tencing that would have affected Hantzis’s understanding of
the charges or penalties against him. Though the subsequent
evidentiary hearing permitted Hantzis a second opportunity to
cross-examine the government’s expert (neither Hantzis nor
his counsel elected to cross-examine the same expert at trial),
he already knew what the expert would testify to and that he
had no defense to that testimony. Hantzis began challenging
the drug evidence against him in 2003, and, partly with the
aid of counsel, had his own expert examine the government’s
drug evidence. Unfortunately for Hantzis, his own drug
expert’s test results were largely consistent with those of the
government’s expert. Thus, at the time of the evidentiary
hearing concerning drug evidence, there had been no substan-
tial change in circumstances that would have left Hantzis
without a clear understanding of the nature of the hearing and
of the evidence that would be presented against him.
Hantzis also fails to explain how Booker changed the cir-
cumstances such that he would be entitled to a new Faretta
colloquy. Hantzis merely asserts that Booker was decided
between the time of his motion to represent himself pro se
was granted and the date of his sentencing, and assumes that
is enough to show changed circumstances.
[8] Booker was decided on January 12, 2005. 543 U.S. at
220. In Booker, the Supreme Court overruled existing law by
holding that the mandatory application of the Sentencing
Guidelines was unconstitutional under the Sixth Amendment.
543 U.S. at 244-45, 259-60; see also United States v. Carty,
520 F.3d 984, 990 (9th Cir. 2008) (en banc) (recognizing that
“under the Booker remedial regime . . . the Guidelines are no
longer mandatory but are only advisory”). However, this
change in the law did not constitute a substantial change of
UNITED STATES v. HANTZIS 18247
circumstances that affected the nature of the charges against
Hantzis or materially affected the range of available penalties
to which he was subject, based on his conviction.
The crimes for which Hantzis was charged and convicted
of at trial did not change. Based on his conviction, the appli-
cable Guidelines sentence range was 188 to 235 months. Han-
tzis, when represented by counsel, filed a pro se memorandum
challenging this Guidelines range and engaged in active
motions practice in the years leading up to his sentencing.
Hantzis clearly knew the range of possible sentences against
him at the time he waived counsel.
[9] The Guidelines range set forth in the PSR and chal-
lenged by Hantzis did not change post-Booker. All that
changed was that the range became advisory rather than man-
datory. Accordingly, the range of possible penalties sought
against Hantzis, which he had reviewed and challenged, were
not materially different than those applicable to him before
Booker. The district court properly acknowledged the advi-
sory role of the Guidelines and considered the various
§ 3553(a) factors when sentencing Hantzis to a mid-range,
within Guidelines sentence. Thus, Booker did not substan-
tially change Hantzis’s understanding of the possible penalties
that could be imposed on him.
[10] Hantzis has not shown that the foregoing was a sub-
stantial change of circumstances since the date of his Faretta
colloquy, and the district court did not err in failing to under-
take a new Faretta colloquy.
C. The district court did not err by declining to appoint
counsel at sentencing
[11] Whether a defendant was denied his Sixth Amend-
ment right to counsel during a proceeding is a question of law
to be reviewed de novo. See United States v. Danielson, 325
F.3d 1054, 1066 (9th Cir. 2003). The district court did not err
18248 UNITED STATES v. HANTZIS
by declining to appoint counsel at Hantzis’s sentencing. As
previously noted, at the sentencing hearing, Hantzis accused
the government and the court of “major fraud,” collusion, and
forgery. Hantzis also contended that all of his attorneys had
been incompetent from the beginning of the case and that he
did not “even know what charges have been brought against”
him, even though he had personally prepared several pro se
motions arguing the specifics of those charges. Hantzis’s
argument attacked the legitimacy of the investigation, the
prosecution, the trial, his conviction, and his attorneys prior
to sentencing, but not the sentencing proceeding itself (which
was then in process). Moreover, the district court had already
considered and denied Hantzis’s pre-sentence motions.
[12] Even if Hantzis’s statement could be construed as
requesting counsel at sentencing, “a court must be wary
against the ‘right of counsel’ being used as a ploy to gain time
or effect delay.” United States v. Kelm, 827 F.2d 1319, 1322
(9th Cir. 1987), overruled on other grounds by United States
v. Heredia, 483 F.3d 913, 920 (9th Cir. 2007) (en banc). Han-
tzis hired and fired appointed counsel repeatedly throughout
the proceedings, and he managed to delay sentencing for three
full years after trial. Given the totality of the circumstances,
the district court did not err in requiring Hantzis to proceed
pro se at sentencing where his conduct was “ ‘dilatory and
hinder[ed] the efficient administration of justice.’ ” United
States v. Meeks, 987 F.2d 575, 579 (9th Cir. 1993) (quoting
Kelm, 827 F.2d at 1322).
AFFIRMED.