United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 13, 2005
Charles R. Fulbruge III
Clerk
No. 03-11175 and
No. 04-10933
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENDRICK JERMAINE FULTON, also known as Ken Fulton,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CR-94-2-C
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
In No. 03-11175, Kendrick Jermaine Fulton appeals his
conviction and sentence, following a jury trial, for conspiracy
to possess with intent to distribute more than five kilograms of
cocaine and more than 50 kilograms of cocaine base, in violation
of 21 U.S.C. § 846. The district court sentenced Fulton to 400
months in prison and to five years of supervised release. In No.
04-10933, Fulton, proceeding pro se, appeals from the denial of
his pro se motion for new trial. We consolidate the two appeals
sua sponte. See FED. R. APP. P. 3(b)(2).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-11175 and
No. 04-10933
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A. No. 03-11175
Before trial began, Fulton asked to proceed pro se, and the
district court granted his request, but stated that his appointed
attorney would remain as stand-by counsel. Fulton proceeded pro
se at a pre-trial hearing on the admissibility of wiretap
evidence. (After the hearing, the court granted Fulton’s motion
to rescind his request to proceed pro se, and it reappointed his
attorney to represent him at trial.) Fulton now contends that he
did not knowingly and voluntarily waive his right to counsel at
the pre-trial hearing, in that the court failed to warn him
adequately about the dangers and disadvantages of self-
representation as required by Faretta v. California, 422 U.S. 806
(1975). The district court, however, warned Fulton that his case
was “complex,” that it would involve “complex issues” regarding
wiretap evidence, that it was in Fulton’s “best interest” to
continue with appointed counsel, and that he would have a
“daunting task” if he proceeded pro se at trial, where he would
be faced with a “very capable prosecutor.” We have held that
similar warnings are sufficient under Faretta to warn a defendant
of the danger and disadvantages of proceeding pro se. See United
States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003).
Fulton argues that the district court abused its discretion
by requiring him to wear leg irons and a “stun belt” during
trial, violating his right to a presumption of innocence. Fulton
wore the leg irons throughout the trial. The stun belt was not
placed on him until the third day of trial, after the court
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stated that it had overheard a confrontation between Fulton and
marshals. At that time, the prosecutor also described an
incident in her office, during which Fulton allegedly had
attempted to walk away while wearing handcuffs and leg irons and
had to be forcibly detained in the office. (Fulton’s version of
this incident differed.) The transcript of Fulton’s detention
hearing reflected that he had been a fugitive for seven months in
the instant case (before turning himself in) and that, in the
past, he had been charged with and convicted of assaults. It
appears that one juror, at most, was aware that Fulton was
wearing leg irons and that none were aware that he was wearing a
stun belt. Given the reasons cited by the court and reasons that
are evident from the record, the district court did not abuse its
discretion in requiring Fulton to wear the restraints. See
Joseph, 333 F.3d at 590; United States v. Hope, 102 F.3d 114, 118
(5th Cir. 1996); United States v. Ellender, 947 F.2d 748, 760
(5th Cir. 1991). For the first time on appeal, Fulton raises a
distinct constitutional argument regarding the stun belt: that a
defendant’s anxiety about being electrically shocked impinges
upon his ability to confer with counsel and to participate
meaningfully in the trial. See United States v. Durham, 287 F.3d
1297, 1304-05 (11th Cir. 2002) (discussing such an argument).
The record of the instant case, however, indicates that Fulton in
fact participated actively in his trial and neither expressed nor
exhibited anxiety about the stun belt.
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Fulton argues that the district court abused it discretion
by rejecting his pro se request, following the close of evidence,
to recall Government witnesses for further cross-examination.
The court offered Fulton an opportunity to explain how additional
testimony would be relevant and helpful. We conclude that the
district court did not abuse its discretion in concluding that
additional cross-examination was not warranted. See United
States v. Masat, 948 F.3d 923, 933 (5th Cir. 1992).
Fulton maintains that the district court clearly erred in
calculating his criminal history score, when it added two
criminal history points because the instant offense was committed
while Fulton was serving a term of deferred adjudication for a
1992 conviction. See U.S.S.G. § 4A1.1(d). Testimony by a DEA
agent at Fulton’s sentencing and by Fulton’s codefendant Edgar
Joe Cofer at trial, as well as unrebutted information in Fulton’s
Presentence Report (“PSR”), reflected that Fulton had been
selling cocaine since the early 1990s. No clear error is
apparent. See United States v. Infante, F.3d (5th Cir.
Mar. 21, 2005), 2005 WL 639619 at *12 n.14; United States v.
Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996); U.S.S.G. § 6A1.3.
Finally, Fulton contends for the first time on appeal that,
under Blakely v. Washington, 124 S. Ct. 2531 (2004), Sentencing
Guidelines increases imposed in his case violated his Sixth
Amendment right to trial by jury because the factors upon which
those increases were based were not submitted to the jury.
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No. 04-10933
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In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme
Court held that, “‘[o]ther than the fact of a prior conviction,
any fact that increases the penalty beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.’” In Blakely, the Supreme Court held that
“the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” 124
S. Ct. at 2537. In United States v. Booker, 125 S. Ct. 738, 756
(2005), the Supreme Court extended the Blakely holding to the
Guidelines, holding that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence authorized
by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved beyond a reasonable
doubt.” The Court excised 18 U.S.C. § 3553(b)(1) of the
Sentencing Reform Act, rendering the guidelines effectively
advisory rather than mandatory. Id. at 764-65. Under Booker,
district courts are still required to consider the guidelines,
and Booker applies to this direct appeal. See id. at 757-69. A
challenge under Blakely and Booker that is raised for the first
time on appeal, however, is reviewable only for plain error.
United States v. Mares, F.3d (5th Cir. Mar. 4, 2005),
2005 WL 503715 at *8.
Although the district court erred by enhancing Fulton’s
guidelines sentence based on factors not submitted to the jury,
the error was not preserved in the district court and Fulton
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cannot demonstrate plin error on appeal unless he shows that the
error affected his “substantial rights.” Id. Because Fulton has
not identified anything in the record to suggest that the
district court would have sentenced him differently under the
pre-Booker advisory Guidelines regime, Fulton has not shown plain
error. Id. at *9. Fulton’s contention that his sentence
violated Apprendi itself because the jury returned a “general
verdict” that did not address drug quantity is belied by the
record, which reflects that the district court specifically
instructed the jury that, to find Fulton guilty, it was required
to find that the offense involved the drug quantities charged in
the indictment.
The conviction and sentence are AFFIRMED.
B. No. 04-10933
In Fulton’s pro se FED. R. CRIM. P. 33 motion for a new
trial, which was filed several months after Fulton’s trial and
sentencing, Fulton argued that the Government had obtained the
wiretap evidence illegally and that it used a “recycled”
affidavit. The district court denied the motion without
requiring the Government to file a response.
This court reviews the denial of a motion for new trial for
abuse of discretion. Infante, 2005 WL 639619 at *7. Such
motions are “‘disfavor[ed]’” and “‘view[ed] with great caution.’”
Id. (citation omitted).
In his appellate brief, Fulton focuses on “newly discovered
evidence” in the form of polygraph results from three tests of
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his codefendant Cofer, which he allegedly learned about from
Cofer’s mother. He has not provided a copy of the results or
specifically described their contents. (In the district court,
Fulton made only cursory reference to this evidence.) According
to Fulton, the polygraph results would show that the affidavit
offered in support of the wiretap application contained
inaccurate information and would have made the wiretap evidence
inadmissible. A review of the wiretap application and its
supporting affidavit reflect that the alleged newly discovered
evidence is immaterial and that, were it introduced at a new
trial, it would probably not produce an acquittal. See Infante,
2005 WL 639619 at *7. The district court did not abuse its
discretion in denying Fulton’s motion for new trial. Id.
We AFFIRM the district court’s order denying Fulton’s motion
for new trial. Fulton’s pro se motion for the production of
grand jury transcripts is DENIED.
CONVICTION AND SENTENCE AFFIRMED; DENIAL OF MOTION FOR NEW
TRIAL AFFIRMED; MOTION DENIED.