United States v. Marrero

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0175p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-2075
v.
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Defendant-Appellant. -
JUAN EUGENIO MARRERO,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 07-00257-001—Paul Lewis Maloney, Chief District Judge.
Argued: January 14, 2011
Decided and Filed: July 6, 2011
Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.

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COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellant. Matthew G. Borgula, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Kevin M. Schad,
FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Matthew
G. Borgula, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan,
for Appellee. Juan Eugenio Marrero, Edgefield, South Carolina, pro se.
KENNEDY, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined. CLAY, J. (pp. 27–37), delivered a separate dissenting opinion.
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OPINION
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KENNEDY, Circuit Judge. Defendant-Appellant Juan Eugenio Marrero was
convicted of possessing with intent to distribute crack cocaine and marijuana, for which
crimes he was sentenced to 360 months’ imprisonment. On appeal, Marrero raises a

1
No. 08-2075 United States v. Marrero Page 2

plethora of arguments challenging his conviction and sentence. Primarily, he alleges that
the district court violated his Sixth Amendment right to an attorney by refusing to
appoint him substitute counsel and allowing him to represent himself at trial and
sentencing. Because we determine that the district court did not abuse its discretion by
denying Marrero’s request for a new attorney, and because his remaining claims lack
merit, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 2, 2007, Sergeant Paul Kenny of the Grand Rapids
Police Department and Michigan State Troopers Bob Watson and Chris Bush went
looking for Marrero at an apartment complex in Comstock Park, Michigan. Information
gathered in an ongoing drug-trafficking investigation indicated that Marrero was selling
cocaine, and the officers wanted to question him. After a resident directed the officers
to a particular apartment unit, Sergeant Kenny knocked on the door and Marrero’s
girlfriend, Tina Walters, answered. Walters told the officers that Marrero was not
currently there and gave them permission to come in and look for him. The officers’
sweep of the apartment verified that Marrero was not inside, but in the kitchen they
found crack cocaine residue, a digital scale, and Marrero’s Bridge Card1 next to an
active burner. Surmising that the stove had recently been used to cook crack cocaine,
the officers decided to canvass the area for Marrero.

In a common-area laundry room down the hall from the apartment, Trooper Bush
discovered Marrero hiding inside of a dryer. Trooper Bush ordered Marrero to emerge,
called Trooper Watson into the room, and attempted to handcuff Marrero. At that point,
Marrero began to resist arrest by punching and kicking the troopers and trying to run
away. In the resulting melee, Marrero—undeterred by multiple stuns from Trooper
Bush’s taser—managed to pull the troopers into the hall. Sergeant Kenny, who had
remained in the apartment to speak with Walters, joined the scuffle upon hearing the
troopers’ calls for help, and the three officers finally managed to subdue Marrero. The

1
A Bridge Card is a debit card issued by the Michigan Department of Human Services to
beneficiaries of its food assistance program.
No. 08-2075 United States v. Marrero Page 3

officers each sustained minor injuries; Marrero emerged with several rug burns on his
face, more than a dozen taser stuns, and complaints about pain in his shoulder, which
had been injured prior to his encounter with the officers.

Once Marrero was secured, Trooper Bush returned to the laundry room, where
he found 27.25 grams of crack cocaine in a washing machine. Police obtained a search
warrant for the apartment, from which they recovered a total of 209.54 grams of
marijuana in addition to the crack cocaine residue and other evidence found in the
kitchen. Meanwhile, Marrero was examined by medical personnel, signed a waiver
declining hospitalization, and was provided some water. Approximately half an hour
after his arrest, Sergeant Kenny advised Marrero of his Miranda rights and Marrero
agreed to speak. During the course of his conversation with Sergeant Kenny, Marrero
admitted that: he had fought the officers because he did not want to go to prison; the
crack cocaine seized from the laundry room was his; earlier that day, he had purchased
$800 of cocaine that he planned to turn into crack cocaine; and the marijuana found in
the apartment was his and he intended to sell it. Marrero was placed in state custody.

On November 7, 2007, Marrero was indicted in the United States District Court
for the Western District of Michigan on two counts: possession with intent to distribute
five or more grams of cocaine base and possession with intent to distribute marijuana,
both in violation of 21 U.S.C. § 841(a)(1). A magistrate judge issued a writ of habeas
corpus ad prosequendum directing the state to surrender Marrero to federal custody.
Marrero had his first appearance in federal court on November 15, 2007, and the
magistrate judge appointed Attorney Richard E. Zambon to represent him.

After initially pleading not guilty, Marrero pleaded guilty to the crack cocaine
charge pursuant to a plea agreement on January 3, 2008. In exchange for Marrero’s plea,
the Government promised to dismiss the marijuana charge and to decline seeking an
enhanced penalty based on Marrero’s previous felony drug convictions. The district
court scheduled sentencing for April 21, 2008, and directed that a presentence
investigation report (“PSR”) be prepared. Marrero received the PSR in March of 2008.
No. 08-2075 United States v. Marrero Page 4

On April 14, 2008, Marrero filed a pro se letter with the district court purporting
to contain the following four motions, reprinted verbatim: “(1) motion to withdraw guilty
plea[;] (2) motion for failed to appointment a truth federal public defendar counsel
violation of Sixth Ammendment[;] (3) motion for evidentuary hearing for ineffective
assistance of councel[;] (4) motion for lock of jurisdiction.” Additionally, on April 17,
2008, Marrero filed a pro se document titled “petition for writ of habeas corpus and
subjiciendum [sic],” which was based on the district court’s alleged lack of jurisdiction.
The district court considered all of Marrero’s motions at a hearing on April 21, 2008, the
date scheduled for sentencing. During this proceeding, the district court determined that
Marrero wished to withdraw his guilty plea because he wanted “to challenge
everything.” Marrero’s primary contentions seemed related to the district court’s
jurisdiction—he believed that the federal court lacked jurisdiction over his case because
he was originally charged and bound over for trial in the state court—and his potential
sentence—he was convinced that a bill introduced in, but not passed by, the United
States House of Representatives had eliminated the sentencing disparity between crack-
and powder- cocaine offenses. Furthermore, the district court ascertained that Marrero
wanted a new attorney because “me and him [Zambon] we don’t get along and
everything. . . . [W]e always see for different point of view.” In particular, Marrero
complained that Zambon had pressured him to plead guilty without allowing him to raise
the above arguments to the court. He also objected to the fact that Zambon was not an
employee of the federal defender’s office.

After attempting to explain to Marrero that his jurisdictional and sentencing
claims lacked merit, the district court denied his request for substitute counsel, insisting
that all of his conflicts with his attorney were based on his “total and complete
misperceptions as to what the law is.” Nevertheless, the district court allowed Marrero
to withdraw his guilty plea, though it denied all of his other motions. A jury trial on both
counts of the indictment was scheduled to begin on May 28, 2008. On April 25, 2008,
the Government filed a supplemental information listing Marrero’s three prior state-court
convictions for felony drug crimes, which elevated the statutory mandatory-minimum
sentence applicable to the charged offenses.
No. 08-2075 United States v. Marrero Page 5

On May 8, 2008, Zambon filed a motion on behalf of Marrero stating that
Marrero wanted to represent himself at trial. At the district court’s hearing on the
motion, held on May 16, 2008, Marrero clarified that he wished to proceed without
counsel only “[b]ecause I can’t get a new lawyer.” In response to the district court’s
inquiry into the nature of the conflict between Marrero and Zambon, Marrero insisted
that “we got a conflict in every point” and “I don’t see how I can go in trial and be
properly represented while me and my attorney we have a conflict from the day we
started.” Specifically, Marrero again complained that Zambon refused to act on his
previously raised objections to the district court’s jurisdiction and the disparate penalties
applicable to crack- and powder-cocaine offenses. Marrero also objected to Zambon’s
failure to challenge his indictment before a grand jury, as he believed he had a right to
do. Finally, Marrero expressed dissatisfaction with Zambon’s response to his numerous
requests for documents related to his case, saying he had belatedly provided him with
the police report and did not procure for him the search warrant or the order to transfer
him from state to federal custody.

After allowing Marrero to detail his conflict with Zambon, the district court
concluded that “99 percent of it, if not a hundred percent of it, goes to [Marrero’s]
misunderstanding of exactly how the federal system works vis-a-vis the state
government.” The district court further explained as follows:

Mr. Marrero has clearly asked for the appointment of another federal
defender or CJA attorney to represent him in this case. And one of the
purposes of my inquiring as to whether what [sic] those sources of
conflict were to get on the record exactly all of those sources of conflict.
And to the extent that there isn’t any ambiguity there, the Court would
find that based on the alleged conflicts that the defendant has with Mr.
Zambon, none of those either singularly or collectively would cause me
to discharge Mr. Zambon and give the defendant another court-appointed
lawyer, because as I’ve said before, nearly 100 percent of the alleged
conflicts here represents the defendant’s fundamental misunderstanding
of the law, which Mr. Zambon has clearly correctly provided to the
defendant, but he chooses not to accept. So on the record before that we
made at an earlier proceeding, and on this record, I would not allow Mr.
Marrero to receive another lawyer, because there is no reason to
discharge Mr. Zambon in the Court’s judgment.
No. 08-2075 United States v. Marrero Page 6

The district court found that Marrero had “knowingly and intelligently and voluntarily
waived his right to counsel,” and gave him permission to represent himself with Zambon
as standby counsel. This arrangement remained in place throughout Marrero’s trial and
sentencing.

On the eve of trial, May 27, 2008, Marrero filed a “motion to dismiss the
indictment.” The district court construed the filing as a motion to suppress the 27.25
grams of crack cocaine recovered from the laundry room, the 209.54 grams of marijuana
found in the apartment, and Marrero’s post-arrest statements to Sergeant Kenny. After
holding an evidentiary hearing on these issues the morning of May 28, 2008, the district
court denied Marrero’s motion to suppress on all grounds.

Marrero’s case proceeded to trial on the afternoon of May 28, 2008. The
following day, the jury convicted Marrero on both counts of the indictment. On July 23,
2008, Marrero received a revised PSR based on the report prepared in anticipation of
sentencing under his guilty plea. He stated two objections to the PSR: first, he contested
the calculation of his base offense level under U.S.S.G. § 2D1.1(c)(7), complaining of
the sentencing disparity between crack- and powder-cocaine offenses; second, he
challenged the application of an obstruction-of-justice enhancement under U.S.S.G.
§ 3C1.2. The district court sentenced Marrero on August 11, 2008. After overruling his
objections, the district court calculated his Guidelines range based on the career-offender
provisions of U.S.S.G. § 4B1.1 and imposed a within-Guidelines sentence of 360
months’ imprisonment.

Marrero timely appealed his conviction and sentence. Though Zambon initially
filed an appearance as Marrero’s appellate counsel, this Court granted his motion to
withdraw and appointed another attorney to represent Marrero on appeal.

ANALYSIS

Marrero appeals a number of the district court’s rulings affecting his conviction
and sentence. First and foremost, he claims that the district court violated his Sixth
Amendment right to counsel by refusing to appoint him substitute counsel, essentially
No. 08-2075 United States v. Marrero Page 7

forcing him into the Hobson’s choice of proceeding to trial with a counsel he mistrusted
or representing himself. Marrero also challenges his conviction based on the denial of
his motion to suppress evidence, the admission of testimony at trial describing his fight
with police officers prior to his arrest, the Government’s use of a police report to refresh
the recollection of a trial witness, and the sufficiency of the evidence supporting his
conviction. Additionally, Marrero objects to his sentence, alleging that his sentencing
hearing was convened in violation Rule 32(e)(2) of the Federal Criminal Rules of
Procedure, that his sentence should be vacated and the case remanded under Kimbrough
v. United States, 552 U.S. 85 (2007), and that a remand for resentencing is warranted in
light of the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372.2 None of
these arguments warrant overturning Marrero’s conviction or sentence.

I. Sixth Amendment Right to Counsel

Marrero first asserts that the district court “forced [him] to forego counsel and
proceed to trial pro-se [sic] against his wishes,” thereby violating his Sixth Amendment
right to counsel. Although the district court conducted the model inquiry recommended
by this Court whenever a defendant seeks to represent himself, and made an express
finding that Marrero had knowingly and voluntarily waived his right to counsel, see
United States v. McDowell, 814 F.2d 245, 250 (6th Cir. 1987), Marrero insisted that
“what [he] really wanted [was] a new attorney,” not self-representation. Marrero
reiterated this objection throughout district court proceedings, when he complained
several times that he was “forced to represent [him]self” because the district court did
not honor his “need” for a new attorney. See also Trial Tr. vol. 2, 145, May 29, 2008,
ECF No. 55 (“I don’t got no defense, that’s why I representing myself right now,
because me and my attorney we have some problems . . . .”); Sentencing Hr’g Tr. 2-3,
Aug. 11, 2008, ECF No. 56 (“I never wished to in the beginning to represent myself,

2
In a supplemental, pro se brief filed with permission of this Court, Marrero raises some
additional claims challenging the validity of the search warrant and the federal government’s jurisdiction
to prosecute him. We need not address those arguments because Marrero is represented by counsel. See
United States v. Martinez, 588 F.3d 301, 327 (6th Cir. 2009), cert. denied, 131 S. Ct. 538 (2010).
Additionally, those claims lack merit.
No. 08-2075 United States v. Marrero Page 8

they were basically forced on me. . . . I want an attorney to represent me. I never asked
for me to represent myself.”). He now renews this argument on appeal.

The Sixth Amendment secures to a defendant who faces incarceration the right
to counsel at all “critical stages” of the criminal process. United States v. Wade, 388
U.S. 218, 224 (1967). This right must be knowingly and intelligently waived by a
defendant electing to represent himself. Faretta v. California, 422 U.S. 806, 835 (1975).
However, the right to counsel does not guarantee that a criminal defendant will be
represented by a particular attorney. Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 624 (1989). “An indigent defendant has no right to have a particular
attorney represent him and therefore must demonstrate ‘good cause’ to warrant
substitution of counsel.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990).
“[A] persistent, unreasonable demand for dismissal of counsel and appointment of new
counsel is the functional equivalent of a valid waiver of counsel.” United States v.
Green, 388 F.3d 918, 921 (6th Cir. 2004) (internal quotation marks and alterations
omitted); see also King v. Bobby, 433 F.3d 483, 492 (6th Cir. 2006) (“[B]y rejecting all
of his options except self-representation, [the defendant] necessarily chose
self-representation.”). Therefore, “[r]esolution of whether [Marrero]’s decision to
proceed pro se was voluntary hinges on whether [his] objections to [his] present counsel
had such merit as to entitle [him] to have new counsel appointed.” United States v.
Schmidt, 105 F.3d 82, 89 (2d Cir. 1997).

We review for abuse of discretion the district court’s decision that an indigent
defendant failed to demonstrate good cause for substitute counsel. United States v.
Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007). Whether the denial of a request for
substitute counsel is an abuse of discretion depends on the following considerations:

[1] the timeliness of the motion; [2] the adequacy of the court’s inquiry
into the defendant’s complaint; . . . [3] whether the conflict between the
attorney and client was so great that it resulted in a total lack of
communication preventing an adequate defense[; and] [4] a balancing of
the accused’s right to counsel of his choice and the public’s interest in
the prompt and efficient administration of justice.
No. 08-2075 United States v. Marrero Page 9

United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996) (quoting Iles, 906 F.2d at
1130 n.8). Balancing these factors, we ultimately find that the district court did not
abuse its discretion by refusing to appoint a new attorney for Marrero. Therefore,
Marrero was not deprived of his Sixth Amendment right to counsel.

1. Timeliness

The timeliness of Marrero’s requests for a new attorney does not lend strong
support to either Marrero’s claim or the district court’s decision. On the one hand,
Marrero did seem to belatedly convey his dissatisfaction with Zambon’s representation
to the district court. Marrero’s original motion for substitute counsel was filed almost
fifteen weeks after the entry of his guilty plea—and only five days before his scheduled
sentencing date—even though a major source of Marrero’s conflict with Zambon was
that “[he] never want[ed] a plea bargain” and “[he] want[ed] to take [his case] to trial no
matter what.” This Court has previously found that a comparable, ten-week delay
renders a motion for substitute counsel untimely. See United States v. Gilliam, 384 F.
App’x 497, 498 (6th Cir. 2010). Marrero made his second request for different
representation only two-and-a-half weeks later, when Zambon filed the motion asking
the district court to allow Marrero to represent himself. Still, by that time, only three
weeks remained before Marrero’s trial was scheduled to begin. Again, past decisions
of this Court reflect that motions for substitute counsel may be untimely when filed at
similar times before a defendant’s trial date. See, e.g., United States v. Williams,
176 F.3d 301, 314 (6th Cir. 1999) (two weeks).

On the other hand, when considering both of Marrero’s motions, the district court
did not express any concerns about their timeliness. Indeed, the district court granted
Marrero’s motion to withdraw his guilty plea, filed on the same day as his first motion
for substitute counsel, even though timeliness is also a factor in this Court’s review of
those requests. See United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006) (“This
Court considers a number of factors to determine whether Defendant meets the burden
of proving that the withdrawal of his guilty plea is for a fair and just reason, including:
(1) the amount of time that elapsed between the plea and the motion to withdraw it . . . .”
No. 08-2075 United States v. Marrero Page 10

(internal quotation marks omitted)). And, while Marrero renewed his request only three
weeks before the scheduled trial, this is not a case where the defendant had awaited trial
for months without any complaints regarding his representation, only to bring a last-
minute motion for substitute counsel. Cf. United States v. Chambers, 441 F.3d 438, 447
(6th Cir. 2006) (finding untimely a motion for substitute counsel brought one-and-a-half
months before trial, when proceedings had progressed slowly and discovery had been
complete for nearly one year). After allowing Marrero to withdraw his guilty plea, the
district court scheduled his trial to begin in only five-and-a-half weeks; less than half of
this time had elapsed when Zambon, on behalf of Marrero, filed the second motion.

2. Adequacy of the District Court’s Inquiry

The record of the district court’s hearings on Marrero’s motion for substitute
counsel and the motion requesting self representation suggest that the district court
adequately inquired into the source of Marrero’s conflict with Zambon. This Court’s
prior decisions indicate that, to meet this requirement, the district court simply must
allow a defendant the opportunity to explain the attorney-client conflict as he perceives
it. See United States v. Vasquez, 560 F.3d 461, 467 (6th Cir. 2009) (“The record
demonstrates that the district court engaged in multiple lengthy discussions with both
[the defendant] and [his attorney] that span many transcript pages regarding their alleged
conflicts. During these exchanges, [the defendant] had ample opportunity to discuss in
detail his complaints regarding [his attorney] and respond to [his attorney]’s
representations regarding their relationship.”); Chambers, 441 F.3d at 447 (“It appears
to us that the district court allowed [the defendant] adequate opportunity to explain his
concerns and allowed counsel to respond.”); United States v. Saldivar-Trujillo, 380 F.3d
274, 278 (6th Cir. 2004) (“Our review of the sentencing hearing shows that the district
court . . . allowed [the defendant], his defense counsel, and the prosecutor the
opportunity to address the complaint at issue. We conclude that this inquiry was
adequate because it allowed all of the interested parties to present their respective
evidence and arguments.”).
No. 08-2075 United States v. Marrero Page 11

At the first hearing, the district court allowed Marrero to go on at length about
his differences of opinion with Zambon as to his plea bargain. About eight pages of the
transcript of the second motion hearing are dedicated to the district court’s attempts to
nail down the nature of Marrero’s dissatisfaction with Zambon. This included questions
about the extent to which the conflict affected Marrero’s ability to defend his case.
Zambon also got the chance to voice his opinions. After the district court concluded its
inquiry, it acknowledged that “I’ve tried as best I can to get on the record exactly what
the natures of the dispute here are,” and later noted that “one of the purposes of my
inquiring as to whether what [sic] those sources of conflict were to get on the record
exactly all of those sources of conflict.” Thus, it appears from the record that Marrero
had the chance to fully describe his objections to Zambon’s representation, and the
district court satisfied its obligation to determine the sources of his complaint.

This conclusion is unaffected by the fact that, at the second motion hearing, the
district court launched into an inquiry as to whether Marrero was equipped to represent
himself, see McDowell, 814 F.2d at 250, after it allowed Marrero to describe his conflict
with Zambon. The record reflects that the district court appreciated that the motion to
proceed pro se, filed by Zambon, was actually motivated by Marrero’s desire for a new
attorney. See Mot. Hr’g Tr. 22, May 16, 2008, ECF No. 51 (“Mr. Marrero has clearly
asked for the appointment of another federal defender or CJA attorney to represent him
in this case.”). The district court denied that request. Id. (“[O]n the record before that
we made at an earlier proceeding, and on this record, I would not allow Mr. Marrero to
receive another lawyer, because there is no reason to discharge Mr. Zambon in the
Court’s judgment.”). If we conclude that the district court did not abuse its discretion
in this regard, it was perfectly acceptable to leave Marrero with the choice of proceeding
with Zambon as counsel or opting for self representation. See United States v. Eltayib,
88 F.3d 157, 168 (2d Cir. 1996) (“Because the denial of [the defendant]’s request for
new counsel was proper, it was also proper to explain to [the defendant] that he was thus
left with only two options: keeping this lawyer or proceeding pro se.”).
No. 08-2075 United States v. Marrero Page 12

3. Nature of the Conflict Between the Attorney and the Client

After determining the nature of the conflict between Marrero and Zambon, the
district court could have concluded that it was not “so great that it resulted in a total lack
of communication preventing an adequate defense.” Jennings, 83 F.3d at 148. To be
sure, Marrero clearly indicated to the district court that he disagreed with Zambon’s
strategy for defending his case. See, e.g., Mot. Hr’g Tr. 6, May 16, 2008, ECF No. 51
(“Me and him [Zambon], we got a conflict in every point, so if I have a conflict on every
point with my attorney, so I don’t see how I can go in trial and be properly represented
while me and my attorney we have a conflict from the day we started, so that’s not
fair.”). Nonetheless, a defendant’s differences of opinions with his attorney do not
create a complete breakdown of communication that compromises his defense. This
Court has previously emphasized that a defendant’s “dissatisfaction with the responses
he got from his lawyer, not with the lack of opportunity or his inability to talk to his
lawyer or contact his lawyer,” does not establish a total lack of communication.
Salvidar-Trujillo, 380 F.3d at 278 (internal quotation marks and alterations omitted).
Moreover, a lack of communication resulting from a defendant’s refusal to cooperate
with his attorney does not constitute good cause for substituting counsel. Vasquez, 560
F.3d at 468.

In this case, the district court found that “nearly 100 percent of the alleged
conflicts here represents the defendant’s fundamental misunderstanding of the law,
which Mr. Zambon has clearly correctly provided to the defendant, but he chooses not
to accept.” Given Marrero’s descriptions of his problems with Zambon, this factual
finding is not clearly erroneous. Marrero never expressed concern about his ability to
consult with Zambon about his case. Instead, Marrero believed that Zambon should be
pursuing a number of meritless arguments, despite Zambon’s and the district court’s
numerous attempts to explain why Marrero’s concerns were groundless. Marrero’s most
significant complaint—that Zambon had somehow tricked him into pleading
guilty—was accommodated by the district court when it allowed Marrero to withdraw
No. 08-2075 United States v. Marrero Page 13

his plea. After granting that request, it was reasonable for the district court to conclude
that Marrero’s remaining objections did not merit substitution of counsel.

4. Prompt and Efficient Administration of Justice

The balance between Marrero’s right to the counsel of his choice and the public’s
interest in the prompt and efficient administration of justice is, at most, equivocal, and
perhaps even favors Marrero. From the district court’s perspective, “nearly 100 percent
of the alleged conflicts [between Marrero and Zambon] represents the defendant’s
fundamental misunderstanding of the law.” Therefore, the district court may have
reasoned, “[g]ranting [Marrero’s] request for substitute counsel . . . would actually have
impeded the efficient administration of justice because his complaints about his
attorney’s performance were frivolous.” Saldivar-Trujillo, 380 F.3d at 278; see also
United States v. Pittman, 11 F. App’x 521, 526 (6th Cir. 2001) (noting that defendant has
“little legitimate interest in obtaining new counsel” when “the court [finds] that the
dispute [the defendant had] with his counsel was such as he would likely have had with
any counsel”).

However, the district court proceedings undercut this line of reasoning. It is
difficult to see how granting either of Marrero’s requests for a new attorney would have
caused any additional delay in his case. Because the district court decided Marrero’s
first motion for substitute counsel at the same time it permitted him to withdraw his
guilty plea, this disposition coincided with a necessary rearrangement of the district
court’s schedule for Marrero’s case. It was not as if Marrero requested new counsel in
the middle of trial, at the expense of great time and effort already put forth by the
Government. Cf. United States v. Sullivan, 431 F.3d 976, 982 (6th Cir. 2005) (finding
that “the record does not reflect that the prompt and efficient administration of justice
would have been served by the substitution of counsel and the attendant continuance
such a substitution would have required,” when defendant brought his motion five days
after the Government rested in a jury trial involving forty-two government witnesses).
When Marrero elected to proceed pro se just three weeks before the scheduled trial date,
the district court saw no need to grant a continuance. If three weeks was sufficient for
No. 08-2075 United States v. Marrero Page 14

Marrero, a layperson, to get ready for trial, a trained attorney should also have had
adequate time to prepare the case without additional delay. If anything, it seems
efficiency concerns would counsel the appointment of substitute counsel, rather than risk
“the possibilities of delay and confusion that are inherent in a pro se trial.” United States
v. Bertoli, 994 F.2d 1002, 1018 (3d Cir. 1993).

5. Conclusion

In sum, neither the timeliness of Marrero’s requests for substitute counsel nor
consideration of the public interest dictate the district court’s proper course of action for
ruling on Marrero’s request for new counsel. We conclude that the adequacy of the
district court’s inquiry into Marrero’s complaints and the nature of the conflict between
Marrero and Zambon tip the scales toward a conclusion that the district court did not
abuse its discretion. Therefore, the district court did not violate Marrero’s Sixth
Amendment rights.

II. Motion to Suppress

Marrero next appeals on several grounds the district court’s denial of his motion
to suppress the drugs recovered from the apartment and laundry room, as well as his
statements to police officers after his arrest. “When reviewing the district court’s
decision regarding a motion to suppress, we review its factual findings for clear error
and its legal conclusions de novo.” United States v. Hughes, 606 F.3d 311, 315 (6th Cir.
2010) (emphasis added) (internal quotation marks omitted). Because the district court
denied Marrero’s motion, we consider the evidence in the light most favorable to the
Government. United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc).

A. Basis for Arrest and Detention

Marrero first contends that there was no basis to detain and arrest him, and
therefore the drugs subsequently recovered and his statements to police should be
suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471,
484-85 (1963). Essentially, Marrero alleges that, upon finding him hiding in the laundry
room, the police immediately arrested him without probable cause. Consequently, he
No. 08-2075 United States v. Marrero Page 15

asserts, all the evidence subsequently obtained by the police is tainted by this Fourth
Amendment violation.

The Government argues that Marrero did not raise this issue in the district court,
so our consideration of it is confined to, at most, plain error review. See United States
v. Caldwell, 518 F.3d 426, 430 (6th Cir. 2008) (“[T]here is some debate over whether
we should treat a suppression argument raised for the first time on appeal as a waiver
(subject to review only if defendant can show “good cause”), or a forfeiture (subject to
“plain error” review) . . . .” (citations omitted)). However, a careful reading of the
record reveals that Marrero did allude to these issues in the district court: his motion
complains that police lacked an “order for arrest” when they arrived at the apartment
complex on October 2, 2007, and at the suppression hearing Marrero again argued that
the officers were not “justified” in arresting him. Given the leniency courts afford pro
se litigants, see, e.g., Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005), we
consider this claim preserved.

Nevertheless, Marrero’s claim fails on the merits, as the record reflects that
Marrero’s arrest met the standards of the Fourth Amendment. “[A] warrantless arrest
by a law officer is reasonable under the Fourth Amendment where there is probable
cause to believe that a criminal offense has been or is being committed.” Devenpeck v.
Alford, 543 U.S. 146, 152 (2004). “Probable cause exists if the facts and circumstances
known to the officer warrant a prudent man in believing that the offense has been
committed.” Henry v. United States, 361 U.S. 98, 102 (1959); see also Beck v. Ohio,
379 U.S. 89, 91 (1964). When the officers arrived at the apartment complex on the
evening of October 2, 2008, they were acting on information, obtained from individuals
arrested earlier that day, that Marrero had sold those individuals crack cocaine. After
receiving consent from an apparent resident to search the apartment where they believed
Marrero was staying, they observed crack cocaine residue and a digital scale next to still-
hot burner. Marrero was then discovered hiding from the officers in the apartment
building’s laundry room, inside of a dryer. At this point, the officers reasonably
believed that Marrero had been engaged in the manufacture of crack cocaine, giving
No. 08-2075 United States v. Marrero Page 16

them probable cause for arrest. If these facts alone were not sufficient, Marrero then
began fighting the officers in an attempt to escape, providing further justification for his
arrest. Therefore, the district court did not err in concluding that probable cause
supported Marrero’s arrest and detention.

B. Search of the Premises

Marrero next contends that the search of the premises after his arrest “clearly
exceeded that necessary,” and so the crack cocaine recovered from the laundry room and
the marijuana seized from the apartment should be suppressed. In essence, Marrero
claims that the officers searched the apartment before they obtained a search warrant,
that they searched the laundry room without obtaining a warrant at all, and that neither
search fell within any exceptions to the warrant requirement.

As an initial matter, the Government challenges Marrero’s standing to object to
a search of either the apartment or the laundry room, arguing that he lacked a legitimate
expectation of privacy in either space. See Rakas v. Illinois, 439 U.S. 128, 143 (1978)
(“[C]apacity to claim the protection of the Fourth Amendment depends . . . upon whether
the person who claims the protection of the Amendment has a legitimate expectation of
privacy in the invaded place.”). The district court agreed with respect to the laundry
room, reasoning that it was a common area of the apartment complex. The district
court’s finding that the laundry room was accessible to the public is not clearly
erroneous, and it did not err in admitting the crack cocaine the police found hidden in
a washing machine. See United States v. Dillard, 438 F.3d 675, 682-83 (6th Cir. 2006)
(“[The defendant] did not have a reasonable expectation of privacy in the common
hallway and stairway of his duplex that were unlocked and open to the public.”).

As for the search of the apartment, the Government points to Marrero’s repeated
statements in the district court denying that he was living there, see, e.g., Trial Tr. vol. 2,
302, May 29, 2008, ECF No. 55 (accepting jury instruction submitted by the defense
stating that “[t]he defense says the drugs did not belong to him and he did not live at the
apartment in question, and he was never in the laundry room”), as evidence that he
lacked the requisite expectation of privacy in the apartment. See Minnesota v. Carter,
No. 08-2075 United States v. Marrero Page 17

525 U.S. 83, 90-91 (1998) (holding that defendants had no legitimate expectation of
privacy in, and thus could not challenge the search of, another’s dwelling which they had
visited only for the commercial purpose of bagging cocaine). The district court did not
determine whether Marrero was actually living in the apartment, and we are hesitant to
rule on this issue without the benefit of a factual finding on this point. Regardless, the
district court did find that the relevant search and seizure of the marijuana occurred after
the police secured a valid search warrant. This conclusion is not clearly erroneous, and
the district court did not err in its decision that the seizure of the marijuana complied
with the Fourth Amendment.

C. Voluntariness of Statements

Finally, Marrero contests the admission of his post-arrest statements, claiming
they were given involuntarily. See Oregon v. Elstad, 470 U.S. 298, 304-05 (1985).
Specifically, Marrero claims that police questioned him when he was “unable to fully
and knowingly participate in any conversation” due to the fact that he had been stunned
with a taser multiple times during his struggle with police officers. While a statement
is involuntary, and thus inadmissible, when “obtained by ‘techniques and methods
offensive to due process’ or under circumstances in which the suspect clearly had no
opportunity to exercise ‘a free and unconstrained will,’” id. at 304 (quoting Haynes v.
Washington, 373 U.S. 503, 515, 514 (1963)), the officers in this case did not question
Marrero under coercive circumstances. Officer Kenny’s testimony at the evidentiary
hearing reflects that, prior to questioning, Marrero was given water and the opportunity
to rest. Furthermore, Marrero was examined by medical personnel, and he declined to
go to the hospital. Based on the evidence presented, the district court found “no
evidence whatsoever of coercion or threats or other force being used by the police
officers to adduce a statement from the defendant.” Thus, the district court did not err
by refusing to suppress Marrero’s statements to police as an involuntary confession.

Marrero also challenges the admissibility of his confession under Miranda v.
Arizona, 384 U.S. 436 (1966). After Miranda, “[s]tatements made by a defendant in
response to interrogation while in police custody are not admissible unless the defendant
No. 08-2075 United States v. Marrero Page 18

has first been apprized [sic] of the constitutional right against self-incrimination and has
validly waived this right.” United States v. Cole, 315 F.3d 633, 636 (6th Cir. 2003).
Marrero alleges that he was questioned by police before being given the Miranda
warnings. However, at the suppression hearing, Officer Kenny testified that he
administered the Miranda warnings to Marrero before questioning began. As a result,
the district court determined that “the defendant was given his Miranda warnings by the
officer [and] he waived his rights to speak to the officer without the benefit of [a]
lawyer.” This factual finding is not clearly erroneous.

Alternatively, Marrero claims that “the record shows that [Marrero] has difficulty
with the English language, thus there is a real possibility that Appellant did not
understand [his Miranda] rights.” Marrero did not pursue this argument in the district
court, and it finds no support in the record. Marrero had sufficient knowledge of the
English language to represent himself throughout trial and sentencing, which fact belies
the assertion that he was unable to comprehend the Miranda warnings. The admission
of Marrero’s post-arrest statements did not violate Miranda.

III. Testimony Regarding Marrero’s Struggle with Police

Marrero next asserts that the district court erred by allowing the arresting officers
to testify about their struggle with Marrero when they found and tried to detain him.
According to Marrero, this testimony constituted character evidence of “other crimes,
wrongs, or acts,” and is therefore inadmissible under Rule 404(b) of the Federal Rules
of Evidence. Because Marrero failed to object to this issue at trial, we review it for plain
error under Rule 52(b) of the Federal Rules of Criminal Procedure. See Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). To establish plain error, Marrero must
show an “error” that was “clear or obvious,” that “affected [his] substantial rights,” and
that “‘seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
“Meeting all four prongs is difficult, as it should be.” Id. (internal quotation marks
omitted).
No. 08-2075 United States v. Marrero Page 19

Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). “Where the challenged evidence is ‘intrinsic’ to, or
‘inextricably intertwined’ with evidence of, the crime charged, Rule 404(b) is not
applicable.” United States v. Henderson, 626 F.3d 326, 338 (6th Cir. 2010). That is:

Proper background evidence has a causal, temporal or spatial connection
with the charged offense. Typically, such evidence is a prelude to the
charged offense, is directly probative of the charged offense, arises from
the same events as the charged offense, forms an integral part of a
witness’s testimony, or completes the story of the charged offense.

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000).

The circumstances under which police officers apprehended Marrero are
inextricably intertwined with evidence of the possession crimes with which he was later
charged. See Henderson, 626 F.3d at 338. Marrero’s attempt to hide from police
officers inside a dryer, the officers’ discovery of Marrero, and the ensuing struggle all
have a temporal connection to, and completes the story of, the charged offense. See
Hardy, 228 F.3d at 748. Therefore, it was not error, let alone plain error, for the district
court to allow the admission of this evidence.

IV. Use of a Police Report to Refresh a Witness’s Recollection

Marrero also challenges the district court’s overruling of his objection to the
Government’s use of a search warrant tabulation report to refresh the recollection of a
witness, Officer Danielle Brennan. Marrero argues that the court erred by allowing
Officer Brennan to refresh her recollection with the report because it “was not made by
her, nor was it adopted by her.” “We review for abuse of discretion the district court’s
evidentiary rulings.” United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004). That
is, we will overturn a ruling on the admissibility of evidence only if the district court
“committed a clear error of judgment in the conclusion it reached upon a weighing of the
relevant factors[,] . . . improperly applie[d] the law[,] or use[d] an erroneous legal
standard.” United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002) (internal
No. 08-2075 United States v. Marrero Page 20

quotation marks omitted). Additionally, “[r]eversal is appropriate only if the abuse [of
discretion] was not harmless error,” that is, only if the erroneous evidentiary ruling
affected the outcome of the trial. United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.
2007) (internal quotation marks omitted).

Rule 612 of the Federal Rules of Evidence authorizes a party to refresh a
witness’s memory with a writing so long as the “adverse party is entitled to have the
writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony of the witness.”
Fed. R. Evid. 612. By its terms, Rule 612 does not limit the type of writings that might
be used as refreshers, and “[t]he propriety of permitting a witness to refresh his memory
from a writing prepared by another largely lies within the sound discretion of the trial
court.” Rush v. Ill. Cent. R.R. Co., 399 F.3d 705, 716 (6th Cir. 2005). The fact that the
warrant tabulation report was prepared by a person other than Officer Brennan does not
establish that the district court abused its discretion by allowing her to refresh her
recollection with it.

Furthermore, even if the district court erred by allowing Officer Brennan to
refresh her recollection with the warrant tabulation report, any error is harmless. Officer
Brennan’s refreshed testimony concerned where police had located the crack cocaine in
the laundry room of the apartment complex. Specifically, she testified that the officers
at the scene had found the crack cocaine in “[t]he far right washing machine.” At trial,
the Government presented testimony of another officer, Trooper Chris Bush, that police
recovered a quantity of crack cocaine from inside a washing machine in the laundry
room. See Trial Tr. vol. 1, 120, May 28, 2009, ECF No. 54 (“[I]n the first dryer there,
I opened it up or the first washing machine, I opened it up and looked down inside and
I observed to me [sic] a large amount of crack cocaine, what I believed to be crack
cocaine.”). Allowing Officer Brennan to confirm this testimony would be at most
harmless error.
No. 08-2075 United States v. Marrero Page 21

V. Sufficiency of the Evidence

Marrero also challenges his conviction as based on insufficient evidence,
claiming that the Government did not prove that he had possession of the drugs
recovered in the case or that he had the requisite intent to distribute the drugs. Though
Marrero moved for a directed verdict at the close of the Government’s case, he did not
renew this motion at the close of all proofs. “[W]here, as here, a defendant does not
renew his motion for judgment of acquittal for insufficiency of the evidence at the close
of all the proofs, appellate review is limited to determining whether there was a manifest
miscarriage of justice.” United States v. Childs, 539 F.3d 552, 558 (6th Cir. 2008)
(internal quotation marks omitted). “Such a miscarriage of justice occurs only if the
record is devoid of evidence pointing to guilt.” Id.

The record in this case is certainly not devoid of evidence of guilt, and includes
testimony from the interrogating police officer relaying Marrero’s admissions that: the
crack cocaine that police found in the laundry room was his; he had recently purchased
$800 worth of cocaine from his supplier; he had cooked crack cocaine in the apartment
about twenty minutes prior to the police’s arrival; and the marijuana found in the
apartment was his and he intended to sell it. Additionally, a DEA drug expert testified
that the amount of illegal drugs recovered in the case amounted to distribution quantities.
Given this evidence, Marrero’s conviction does not amount to a manifest miscarriage of
justice.

VI. Rule 32 Violation

Marrero next appeals the district court’s refusal of his request at sentencing for
more time to review his PSR. Marrero argues that, because he represented himself at
sentencing, he should have been given more time to review the PSR and navigate the
“technical, complicated matters” that comprise the federal sentencing system. See also
Sentencing Hr’g Tr. 7, Aug. 11, 2008, ECF No. 56 (“I didn’t have no time to work on
[objections to the PSR]. I’m not professional. I don’t know what to do with this stuff.
I needed time to work on it, and they would not send it to me . . . .”). We review the
No. 08-2075 United States v. Marrero Page 22

denial of a motion for a continuance for abuse of discretion. United States v. Roberge,
565 F.3d 1005, 1011 (6th Cir. 2009).

Rule 32(e)(2) of the Federal Rules of Criminal Procedure provides that the
probation officer must give the PSR to the defendant and his or her attorney “at least 35
days before sentencing unless the defendant waives this minimum period.” Fed. R. Crim.
P. 32(e)(2). “This court has made it clear on several occasions that the district courts
must be in literal compliance with the requirements of Rule 32.” United States v. Carter,
374 F.3d 399, 408 (6th Cir. 2004) (internal quotation marks omitted), vacated on other
grounds, 543 U.S. 1111 (2005). “Yet, although we emphasize the importance of Rule
32’s mandate, we review violations for harmless error.” Roberge, 565 F.3d at 1011.
Remand is required unless the error “did not cause the defendant to receive a more
severe sentence.” United States v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007) (internal
quotation marks omitted).

Marrero received his PSR on July 23, 2008, twenty days before his sentencing
on August 11, 2008. Thus, the district court was not in strict compliance with Rule
32(e)(2). However, Marrero did not identify to this Court, or to the district court, any
specific prejudice that he suffered from the court’s refusal to grant a continuance. In the
district court, Marrero stated two objections to the PSR: an (erroneous) contention that
federal law did not contain a disparity between the punishments imposed for drug crimes
involving crack and powder cocaine and an objection to the imposition of a reckless-
endangerment enhancement. He does not allege that his ability to argue these objections
was negatively affected by his inability to prepare, nor does he point to any additional
objections that he could have brought if given more time; neither does he challenge the
accuracy of any facts recounted in the PSR. See United States v. Turner, 134 F. App’x
17, 22 (6th Cir. 2005) (“Actual prejudice is established by showing that a continuance
would have made relevant witnesses available or added something to the defense.”
(internal quotation marks omitted)); United States v. Archer, 70 F.3d 1149, 1151 (10th
Cir. 1995) (“Because defendant does not assert contradictory facts that challenge the
No. 08-2075 United States v. Marrero Page 23

accuracy of the PSR, he suffered no prejudice from the Rule 32 violation, and it would
be meaningless to remand for resentencing.” (internal quotation marks omitted)).

Furthermore, Marrero had received a prior version of his PSR four months
earlier, when he was awaiting sentencing after pleading guilty. That PSR was identical
to the operative PSR, save for adjustments to account for the withdrawal of his plea and
the filing of the Government’s supplemental information. Cf. United States v. Burke,
187 F.3d 638 (6th Cir. 1999) (unpublished table decision) (concluding that ten-day
period to review revised PSR was reasonable, and violation of Rule 32’s thirty-five-day-
review requirement harmless, when “changes contained in the Revised PSR were
technical, not substantive”). Given these facts, Marrero has not shown that strict
compliance with Rule 32(e)(2) would have resulted in a different sentence, and the
district court’s violation of Rule 32(e)(2) amounted to harmless error.

VII. Procedural Objection to Sentence

Marrero also challenges his sentence, arguing that the district court failed to
appreciate its authority “to disagree with the 100:1 crack[-to-powder-]cocaine sentencing
ratio[]”3 incorporated in the Guidelines. [Appellant’s Br. 23.] Marrero relies on
Kimbrough v. United States, 552 U.S. 85 (2007), which held that a district court may
vary a defendant’s sentence upon concluding that “the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case,” id. at 110. See also Spears v. United States, 555 U.S. 261, 129 S. Ct. 840, 843-44
(2009) (per curiam) (“[D]istrict courts are entitled to reject and vary categorically from
the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”).
Though Marrero was sentenced under the career-offender provisions of U.S.S.G.
§ 4B1.1 rather than the drug-quantity table of U.S.S.G. § 2D1.1, the sentencing disparity
between crack and powder cocaine offenses is “implicitly incorporated” in his career-

3
In fact, by the time of Marrero’s sentencing, the Guidelines had been amended to reduce the
100:1 disparity for most crack cocaine offenses. See U.S.S.G. app. C, amend. 706. Nevertheless, it is clear
that Marrero’s argument “applies with equal force to sentencing decisions under the new crack-cocaine
Guidelines,” and remand is warranted if the district court did not understand that it “may categorically
reject and vary from the new Guidelines based on policy disagreements with those Guidelines.” United
States v. Johnson, 553 F.3d 990, 996 (6th Cir. 2009).
No. 08-2075 United States v. Marrero Page 24

offender enhancement. United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009),
cert. denied, 130 S. Ct. 819 (2009). Therefore, the logic of Kimbrough and Spears still
applies, and a “categorical disagreement with the [crack-to-powder-cocaine] ratio
may . . . support a district court’s rejection of the career offender enhancement.” United
States v. Curb, 625 F.3d 968, 972 (6th Cir. 2010). Marrero claims that the district court
did not understand its authority to categorically disagree with the crack-cocaine
Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555
U.S. 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir. 2009).

In the proceedings below, Marrero repeatedly contested the application of the
crack-cocaine disparity to his sentence. However, Marrero never argued to the district
court that it should impose a downward departure based on a categorical disagreement
with the Guidelines. Rather, he only argued for a downward departure based on his
mistaken belief that Congress had eliminated the contested disparity. Additionally,
Marrero responded negatively when, at the close of the sentencing hearing, the district
court asked him whether he had “any other objections to the sentence . . . imposed.” As
a result, we review his request for remand under a plain-error standard. See United
States v. Simmons, 587 F.3d 348, 354-58 (6th Cir. 2009) (determining that plain-error
review applied to defendant’s procedural argument for remand in light of Kimbrough,
even though defendant’s counsel at sentencing had “devoted much of her argument [at
sentencing] to the idea that a downward variance was warranted . . . because of the
Guidelines’ disparate treatment of crack and powder cocaine offenses” and had, when
asked if she had additional objections, raised a vague objection to the “procedural,
substantive aspects” of defendant’s sentence), cert. denied, 130 S. Ct. 2116 (2010). See
generally United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc); United
States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004).

As this Court previously held in Michael, “the district court’s error, if any, in
failing affirmatively to recognize its discretion to reject the statutory 100:1 ratio as
implicitly incorporated into U.S.S.G. § 4B1.1 was not plain.” 576 F.3d at 328 (citing
United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008)). In this case, the district
No. 08-2075 United States v. Marrero Page 25

court explicitly recognized that “the guidelines are advisory to the Court.” It also
discussed its consideration of the 18 U.S.C. § 3553(a) factors, explaining the basis for
Marrero’s sentence in light of “the very serious nature of his offenses,” his “likelihood
to recidivate” and penchant for “deceitful and exaggerating representations,” his need
for “anger management help” and “drug education,” and the necessity of deterrence and
protection of the public. As in Simmons, “[t]here is simply no indication whatsoever that
the judge believed the Guidelines were mandatory, or that the court believed it was not
free to vary downward based on both particularized circumstances of the crime and
defendant or based on substantive disagreement with the crack Guidelines.” 587 F.3d
at 364; cf. Johnson, 553 F.3d at 996 & n.1 (remanding “so that the district court may
impose a sentence with full awareness” of its authority under Spears, when the district
court stated at sentencing that it “must” apply the Guidelines and this Court had “no way
of ascertaining whether the district judge would have imposed the same sentence if he
had known of his discretion to vary categorically from the crack-cocaine Guidelines
based on a policy disagreement”). But see Curb, 625 F.3d at 973 (distinguishing
Simmons and remanding for resentencing under Johnson). Under these circumstances,
“we cannot say the district court’s explanation constitutes an error, let alone an error that
‘was obvious or clear,’ affecting the defendant’s substantial rights and calling into doubt
‘the fairness, integrity, or public reputation of the judicial proceedings.’” Simmons, 587
F.3d at 365 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

VIII. Fair Sentencing Act of 2010

In a supplemental brief, Marrero asserts that he is entitled to the benefit of the
Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372. Marrero was convicted
of possessing 27.25 grams of crack cocaine. At the time of his sentencing and by reason
of his prior convictions, this offense carried a ten-year mandatory minimum sentence and
a maximum sentence of life imprisonment; the Fair Sentencing Act amends these
penalties to a thirty-year maximum sentence with no mandatory minimum sentence.
Though Marrero’s 360-month sentence does not exceed the maximum sentence assigned
to his offense by the Fair Sentencing Act, Marrero nevertheless argues that we should
No. 08-2075 United States v. Marrero Page 26

remand his case for resentencing with reference to the adjusted penalties now reflected
in § 841(b).

In United States v. Carradine, 621 F.3d 575 (6th Cir. 2010), cert. denied, 131 S.
Ct. 1706 (2011), this court determined that the Fair Sentencing Act’s penalty provisions
do not apply to offenses committed prior to their enactment, id. at 580 (“The new law
at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is
retroactive nor can we infer any such express intent from its plain language.
Consequently, we must apply the penalty provision in place at the time [the defendant]
committed the crime in question.”). Because Carradine is a prior published opinion of
this court, we are bound by its pronouncement that the Fair Sentencing Act has no
bearing on Marrero’s case. United States v. Greer, No. 07-3687, 2011 WL 693231, at
*3-4 (6th Cir. Feb. 28, 2011). Therefore, a remand for resentencing under the amended
penalty provisions of § 841(b) is inappropriate.

CONCLUSION

For the foregoing reasons, we AFFIRM Marrero’s conviction and sentence.
No. 08-2075 United States v. Marrero Page 27

___________________

DISSENT
___________________

CLAY, Circuit Judge, dissenting. The majority is mistaken in its conclusion that
there was no Sixth Amendment violation in this case. A fair reading of the record makes
clear that Defendant was denied the assistance of counsel at his criminal trial, and
therefore his sentence and conviction should be vacated and the case remanded. Because
the majority refuses to recognize the district court’s constitutional error, I respectfully
dissent.

BACKGROUND

On November 7, 2007, a federal grand jury indicted Defendant with one count
of possession with the intent to distribute crack cocaine and one count of possession with
the intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1).
Defendant, who is uneducated and indigent, requested counsel, and the district court
thereafter, on November 16, 2007, appointed attorney Richard E. Zambon to represent
Defendant. After initial pleas of not guilty, Defendant pleaded guilty on January 3, 2008
to one count of possession with the intent to distribute crack cocaine in exchange for the
government’s promise to dismiss the remaining count. The district court scheduled a
sentencing hearing for April 21, 2008.

Over the next few months, the relationship between Defendant and counsel broke
down to such a degree that Defendant pleaded with the district court to assign him a new
attorney. On April 13, 2008, Defendant filed a pro se motion that requested the
appointment of new counsel, as well as permission to withdraw his guilty plea. At a
hearing on April 21, 2008, Defendant again requested new counsel, explaining that he
and his lawyer “don’t get along” and that his lawyer has failed to adequately represent
him by, for example, misinforming him about matters relevant to his guilty plea. The
district court did not find good cause for substitution of counsel, and informed Defendant
categorically that he was “not going to get another attorney.” The district court did,
however, permit Defendant to withdraw his guilty plea, even though the court
No. 08-2075 United States v. Marrero Page 28

determined that Defendant’s desire to withdraw his plea was based on a
misunderstanding of the law. In considering Defendant’s requests to substitute counsel
and withdraw his guilty plea, the district court never suggested that the timeliness of
either request was of concern to the court.

The district court did not set a trial date at the hearing on April 21, 2008, but
instead gave the government nearly a week to file supplemental documents to establish
a prior conviction. On April 25, 2008, the same day the government filed its
supplemental documents, the district court issued a scheduling order that set a trial date
of May 28, 2008.

On May 8, 2008, Defendant’s counsel filed a motion stating that Defendant
wished to proceed without counsel. The district court considered the motion at a hearing
on May 16, 2008, during which Defendant again requested new counsel. The court
found that Defendant had a fundamental misunderstanding of the law, and therefore
dismissed his concerns about his counsel as meritless. The court advised Defendant that
he would not be assigned a new attorney, and presented him with the Hobson’s choice
of either proceeding with the counsel he neither desired nor trusted, or proceeding with
no counsel at all. Although Defendant answered with continued pleas for new counsel,
in direct response to the district court’s leading questions, Defendant stated that he
would rather represent himself than be represented by attorney Zambon.

With that, the district court led Defendant blindly down the road to self-
representation by summarily converting the proceedings into a Faretta hearing, by which
the court sought to extract a knowing and voluntary waiver of counsel. See Faretta v.
California, 422 U.S. 806, 835-36 (1975) (holding that prior to permitting a defendant to
proceed without counsel, “he should be 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’”) (internal quotation marks and citation omitted).
Concluding that Defendant “has knowingly and intelligently and voluntarily waived his
right to counsel,” the district court permitted counsel to withdraw, but ordered that
Defendant’s original counsel remain as standby counsel.
No. 08-2075 United States v. Marrero Page 29

Defendant, now proceeding without counsel, appeared at a pretrial conference
on May 27, 2008, and complained that he had been “forced to represent myself.” The
district court summarily dismissed Defendant’s contention. The case proceeded to trial
on May 28, 2008, during which Defendant again complained that he did not have an
attorney. On May 29, 2008, a jury found Defendant guilty of both counts charged in the
indictment. On August 11, 2008, following a hearing in which Defendant remained
unrepresented by counsel and objected on that basis, the district court sentenced
Defendant to 360 months of imprisonment.

DISCUSSION

No fair reading of the record suggests that Defendant ever desired to represent
himself, and as is clear from the trial transcript, he was neither prepared nor equipped
to do so. This is not surprising; as the late Justice Frank Murphy once explained:

The constitutional right to assistance of counsel is a very necessary and
practical one. The ordinary person accused of crime has little if any
knowledge of law or experience in its application. He is ill prepared to
combat the arsenal of statutes, decisions, rules of procedure,
technicalities of pleading and other legal weapons at the ready disposal
of the prosecutor. Without counsel, many of his elementary procedural
and substantive rights may be lost irretrievably in the intricate legal maze
of a criminal proceeding. Especially is this true of the ignorant, the
indigent, the illiterate and the immature defendant.

Canizio v. People of the State of New York, 327 U.S. 82, 87 (1946) (Murphy, J.,
dissenting). Given the severity of the felony charges against Defendant, one of which
carried a possible life sentence, the district court’s conduct fell below that which would
be expected in the face of pleas for assistance from the court for appointment of
substitute counsel. See Johnson v. Zerbst, 304 U.S. 458, 462 (1938) (stating that the
right to counsel is “one of the safeguards of the Sixth Amendment deemed necessary to
insure fundamental human rights of life and liberty”).

The Sixth Amendment guarantees a criminal defendant the right to the assistance
of counsel. See, e.g., Kansas v. Ventris, 129 S. Ct. 1841, 1844-45 (2009). Although an
indigent defendant under our case law does not have a right to counsel of choice, the
No. 08-2075 United States v. Marrero Page 30

Sixth Amendment requires the substitution of appointed counsel upon a showing of good
cause. See United States v. Iles, 906 F.2d 1122, 1130-31 (6th Cir. 1990).

We review the denial a motion to substitute appointed counsel for an abuse of
discretion. See, e.g., United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007);
Wilson v. Mintzes, 761 F.2d 275, 287 n.20 (6th Cir. 1985); Morton v. Foltz, 782 F.2d
1042 (6th Cir. 1985) (per curiam) (table). As the majority recognizes, a reviewing court
should consider the following factors in determining whether the denial of a request for
substitute counsel is an abuse of discretion:

(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry
into the matter, (3) the extent of the conflict between the attorney and
client and whether it was so great that it resulted in a total lack of
communication preventing an adequate defense, and (4) the balancing of
these factors with the public’s interest in the prompt and efficient
administration of justice.

United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001).

In this case, based on the application of these factors, we should find that the
district court committed a clear error of judgment in denying Defendant’s motion to
appoint substitute counsel. Recognizing that a district court has wide discretion in this
regard, it is clear, based on the record, that no reasonable application of these factors
would support the majority’s decision to affirm the decision of the district court. I now
turn to the factors.

A. Timeliness of the motion

The majority simply concludes that the timeliness of Defendant’s motion to
substitute counsel “does not lend strong support to either Marrero’s claim or the district
court’s decision.” (Maj. Op. at 9.) As explained below, the majority’s imprecise and
equivocal conclusion finds little support in the record.

This is not a case where Defendant sought to substitute counsel on the eve of or
during trial. Cf. United States v. Orris, 86 F. App’x 82, 88 (6th Cir. 2004) (finding that
the district court did not abuse its discretion in denying a motion to substitute counsel
No. 08-2075 United States v. Marrero Page 31

on the last day of trial). Nor is this a case where Defendant made a second or successive
motion for new counsel after the district court previously appointed substitute counsel.
Cf. United States v. Staten, 181 F. App’x 151, 154 (3d Cir. 2006) (affirming denial of
request to substitute counsel, where district court had “already granted [the defendant]
substitute counsel once”); United States v. Davis, 181 F.3d 104 (6th Cir. 1999) (table)
(denying request to substitute counsel, where the defendant claimed an “irreconcilable
conflict with his third appointed attorney”).

Instead, this is a case where the district court’s actions suggest that Defendant’s
request for a new lawyer was not untimely. No trial date had been set. The district court
granted Defendant’s contemporaneous motion to withdraw his guilty plea, and provided
the government nearly a week to file supplemental documents, at which point the district
court then issued a scheduling order setting a trial date for May 28, 2008. To the extent
the majority is correct in observing that Defendant “did seem to belatedly convey his
dissatisfaction with” his counsel to the district court, (Maj. Op. at 9), such a fact should
have no bearing on our analysis because the district court never raised any concerns
about the timeliness of Defendant’s request for new counsel.

To the contrary, the district court’s contemporaneous decision to grant
Defendant’s motion to withdraw his guilty plea suggests that Defendant’s motion to
substitute counsel was not untimely. Timeliness is an important factor in determining
whether to permit withdrawal of a guilty plea, see United States v. Selva, 43 F.3d 1473
(6th Cir. 1994) (table), yet the district court gave no indication that timeliness was a
concern in that regard. The court simply reasoned that if Defendant “wants the benefit
of having a trial, we are going to give him one.” There is no reason why timeliness
would weigh against Defendant’s motion to substitute counsel when it did not weigh
against his contemporaneous motion to withdraw his plea.

Accordingly, the timeliness of Defendant’s motion to substitute counsel weighs
in his favor.
No. 08-2075 United States v. Marrero Page 32

B. Adequacy of the district court’s inquiry

The district court’s inquiry into the factual basis for Defendant’s request for a
new lawyer was inadequate, and the majority’s finding to the contrary is flawed.
Although the district court inquired into the initial source of the conflict, and perhaps,
as the majority states, allowed Defendant to “go on at length about his differences of
opinion with [his then-counsel] as to his plea bargain,” (Maj. Op. at 11), the district court
did not take the additional and critical step of exploring whether the attorney-client
relationship had broken down due to a complete lack of trust and confidence. To the
extent the district court purported to engage in an independent inquiry, its inquiry was
of questionable value because the court seemed to rely heavily on the statements of
Defendant’s former counsel without also properly considering the surrounding
circumstances and contentions of Defendant. The evidentiary value of the statements
of Defendant’s former counsel are suspect in this case because Defendant disputed the
quality of his former counsel’s legal representation and specifically stated that he and
his attorney had a “conflict from the day we started.”

The district court never considered whether Defendant might have better
understood the law had it been explained to him by a lawyer who may have been able
to establish some measure of effective communication with Defendant, or with whom
he may have been able to develop trust and confidence. The court failed to make
sufficient inquiry into the working relationship between attorney and client; whether the
apparent collapse of this relationship was exacerbated by factors unrelated to
Defendant’s apparent misunderstanding of the law; and whether the collapse of the
relationship, whatever the source, affected Defendant’s ability to mount an adequate
defense. See, e.g., United States v. Adelzo-Gonzales, 268 F.3d 772, 777 (9th Cir. 2001)
(“Before ruling on a motion to substitute counsel . . . , a district court must conduct such
necessary inquiry as might ease the defendant’s dissatisfaction, distrust, and concern.”)
(internal quotation marks and citation omitted). Instead of exploring these important
questions, and the reasons for any lack of rapport between attorney and client, the district
court summarily converted the proceeding into a Faretta hearing in which it marched
No. 08-2075 United States v. Marrero Page 33

Defendant unknowingly down the road to self-representation, where Defendant would
be forced to confront significant and complex criminal charges without an attorney to
represent him.

Although Defendant stated at various times that he wished to proceed without
counsel, these statements were in direct response to well-articulated, leading questions
posed by the district court in an apparent effort to extract Defendant’s waiver of his right
to counsel. Any purported acquiescence to proceeding pro se was extracted by the
district court only after the district court presented Defendant with a false choice of
either: 1) proceeding with the counsel he did not desire or trust; or 2) proceeding
without any counsel at all. Cf. United States v. Namer, 149 F. App’x 385, 394-95 (6th
Cir. 2005) (noting that in response to a defendant’s request to substitute counsel, the
district court fashioned a “reasonable compromise” by elevating a second chair counsel
to first chair, but keeping the objectionable lawyer on the case).

Even after Defendant selected the latter choice simply to rid himself of counsel
he regarded as unsatisfactory and deficient, he continued to protest “that what I really
wanted is a new attorney.” (5/16 Hear’g Tr. at 21.) The prosecutor apparently
recognized this as a problem, stating, “Your Honor . . . I have some concerns about what
he is really asking for. He’s mentioned at least three times now that he wants a new
attorney.” (Id.) Although we have held that “by rejecting all [] options except
self-representation,” a defendant “necessarily [chooses] self-representation,” King v.
Bobby, 433 F.3d 483, 492 (6th Cir. 2006) (petition for writ of habeas corpus), this rule
cannot apply in a case where, as here, the district court abused its discretion by
unreasonably limiting a defendant’s options.

Accordingly, the district court’s inquiry into the matter was woefully inadequate
and misleading. This factor thus weighs in favor of Defendant.
No. 08-2075 United States v. Marrero Page 34

C. Extent of conflict between attorney and client preventing an
adequate defense
The extent of the conflict between Defendant and counsel was significant, and
this factor weighs in Defendant’s favor. Although the record should have been better
developed, the record that does exist reveals a complete breakdown of the attorney-client
relationship. See, e.g., United States v. Jennette, 387 F. App’x 303, 307-08 (4th Cir.
2010) (finding an abuse of discretion, where district court denied a motion to substitute
counsel two weeks before sentencing in the face of a breakdown in communication
between lawyer and client). This is evident from Defendant’s statements to the district
court,1 as well as those of his then-attorney.2

The magnitude of the conflict is further evidenced by Defendant’s decision to
entirely forgo representation rather than be represented by his then-counsel, even though
Defendant was admittedly ignorant of the law and desired a lawyer. See United States
v. Lagunas, 48 F.3d 1229 (9th Cir. 1995) (table) (finding an abuse of discretion, where
court denied substitution even though the “evidence established a breakdown in
communication that made an adequate defense highly improbable, if not impossible”).
Although Defendant was permitted the opportunity to consult his former counsel as
standby counsel at trial and sentencing, this is at most marginally relevant to the present
issue. Defendant was not permitted any choice in the selection of his standby counsel,
nor does the record suggest that Defendant and standby counsel had a meaningful or
productive relationship. They instead continued to have a conflicted relationship
compelled by the district court.

1
(See, e.g., 5/16 Hear’g Tr. at 3 (“He hasn’t been doing anything for me.”); id. at 8 (“You know
what – Excuse me, I ask you for the new attorney . . . . And see he – Me and him, we got a conflict in
every point, so if I have a conflict on every point with my attorney, so I don’t see how I can go in trial and
be properly represented while me and my attorney we have a conflict from the day we started, so that’s
not fair.”); id. at 11 (“I never want to plea bargain. [My lawyer] knows since the beginning me and him
we argue from the date that we were talking about that. I want to take it to trial no matter what.”); 4/21
Hear’g Tr. at 20 (“[M]e and him we don’t get along and everything. We see – we always see for different
points of view.”).)
2
(See, e.g., 5/16 Hear’g Tr. at 2 (stating that Defendant was “suffice it to say, unhappy with my
strategy, my plans for trial,” and would rather represent himself than continue with his current counsel).)
No. 08-2075 United States v. Marrero Page 35

D. Public interest in the prompt and efficient administration of justice

The final factor is the prompt and efficient administration of justice. This factor
weighs in Defendant’s favor. The majority does not disagree, but again, as with its
analysis of the timeliness issue, the majority provides an imprecise evaluation of the
issue, stating simply that the factor “is, at most, equivocal, and perhaps even favors
Marrero.” (Maj. Op. at 13.) Such an ambiguous conclusion is supported by neither the
record nor common sense. In fact, the majority’s reasoning suggests that this factor
weighs in Defendant’s favor even though the majority is loathe to admit as much.

As an initial matter, substitution of counsel when it was requested would not
have caused any meaningful delay. Defendant first requested a new lawyer on April 13,
2008, nearly two weeks before the district court would issue a scheduling order on April
25, 2008 for trial on May 28, 2008. Although the district court did not relieve counsel
until two weeks before trial, if two weeks were sufficient for an uneducated defendant,
proceeding pro se, to prepare for trial, then a new attorney certainly would have been
able to prepare within that time frame as well. If this were not the case, the district
court’s way of proceeding would raise serious constitutional questions about whether the
district court provided Defendant sufficient time to prepare his defense.

Even if substitution of counsel would have resulted in meaningful delay, the
record does not suggest that any such delay would have prejudiced the relevant public
interest: no trial date had been scheduled; the court permitted Defendant to withdraw
his plea of guilty; and the court adjourned proceedings for nearly a week to permit the
government to file supplemental papers. The record likewise does not suggest any
prejudice whatsoever to the government. Cf. United States v. Sullivan, 431 F.3d 976,
982 (6th Cir. 2005) (affirming denial of request to substitute counsel that was filed “after
the Government had presented the testimony of forty-two witnesses and had rested its
case, and after the district court had denied [a] motion for judgment of acquittal”).

To the extent that the relevant public interest is implicated, it weighs in
Defendant’s favor. If the district court had appointed substitute counsel, the public
would have benefitted from the efficiencies inherent in a trial where both parties are
No. 08-2075 United States v. Marrero Page 36

represented by counsel. See, e.g., United States v. Bertoli, 994 F.2d 1002, 1018 (3d Cir.
1993) (recognizing “the possibilities of delay and confusion that are inherent in a pro se
trial”). Substitution of counsel might also have abrogated the need for appeal of this
issue. See, e.g., Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 167 (11th Cir.
1997) (noting the courts of appeals’ interest in judicial efficiency, particularly because
“the caseload of the federal courts of appeals has grown faster than that of any other
component of the federal judiciary”).

Accordingly, the public interest in the expeditious administration of justice was
not aided by the district court’s denial of substitution of counsel in this case. This factor
weighs heavily in Defendant’s favor.

E. Weighing the relevant factors for abuse of discretion

Although the Sixth Amendment does not guarantee an indigent defendant the
right to counsel of choice, see Mooneyham, 473 F.3d at 291, a straight forward
application of the factors discussed above should compel the conclusion that the district
court abused its discretion in denying substitution of counsel, thus depriving Defendant
of his Sixth Amendment right to counsel. See, e.g., United States v. Bell, 516 F.3d 432,
445 (6th Cir. 2008) (noting that the abuse of discretion standard does not deprive this
Court of meaningful appellate review even in areas of “substantial deference”).

Any fair reading of the record makes clear that the district court committed a
clear error of judgment in denying Defendant’s motion to substitute counsel. This is not
merely because the district court misapplied the law. Rather the district court so
unreasonably and egregiously misapplied the law that its decision cannot be excused
even under our most deferential standards of review.

Since the deprivation of the right to counsel in violation of the Sixth Amendment
is a “structural error,” we presume prejudice and should set aside Defendant’s conviction
and sentence on this basis. See, e.g., United States v. Gonzales-Lopez, 548 U.S. 140, 152
(2006).
No. 08-2075 United States v. Marrero Page 37

CONCLUSION

For the reasons discussed above, Defendant’s conviction was obtained in
violation of the Sixth Amendment. Because the majority erroneously concludes to the
contrary, I respectfully dissent.3

3
Because a finding of a Sixth Amendment violation would require us to reverse Defendant’s
conviction, this dissent does not reach the other claims of error raised on appeal and rejected by the
majority, other than to note, with regard to Defendant’s challenge to his sentence, that the district court
appears to have committed serious procedural error. It is undisputed that the district court failed to insure
that Defendant was provided with the pre-sentence report “at least 35 days before sentencing” as required
by Rule 32(e)(2) of the Federal Rules of Criminal Procedure. Defendant objected on this basis at the
sentencing hearing, and the district court recognized the error, but proceeded with the hearing anyway.
(See Sentencing Tr. at 7.) The district court thereafter stated that Defendant’s ignorance of federal
sentencing law was “one of the hazards of representing yourself.” Perhaps so, but the district court’s non-
compliance with the Federal Rules of Criminal Procedure should not also be such a hazard.