United States Court of Appeals
For the Eighth Circuit
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No. 19-2666
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Emmanuel J. Sanders
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: October 2, 2020
Filed: October 8, 2020
[Unpublished]
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Before BENTON, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.
Emmanuel Sanders appeals after he pled guilty to drug and firearm offenses,
pursuant to a plea agreement containing an appeal waiver, and the district court
imposed a sentence above the advisory range under the United States Sentencing
Guidelines Manual (“Guidelines”). His counsel filed a brief under Anders v.
California, 386 U.S. 738 (1967), in which she sought permission to withdraw and
challenged the substantive reasonableness of Sanders’s sentence. Sanders filed a pro
se brief claiming ineffective assistance of counsel, and challenging a Guidelines
enhancement. We denied counsel’s motion to withdraw and ordered briefing on
whether the denial of Sanders’s request to proceed pro se after his guilty plea falls
outside the scope of the appeal waiver, and whether the district court committed
reversible error by denying that request.
In a written appeal waiver, Sanders waived, inter alia, his right to appeal or
collaterally attack his sentence, except as to, as relevant, an “illegal sentence.” The
waiver further stated, “An ‘illegal sentence’ includes a sentence imposed in excess
of the statutory maximum, but does not include less serious sentencing errors, such
as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the
imposition of an unreasonable sentence.” After Sanders pled guilty, he filed a pro se
motion for new counsel, asserting, inter alia, his relationship with counsel was
“strained” because she refused to move to withdraw his guilty plea. The motion was
denied, and he thereafter filed two identical motions, in which he requested
permission to proceed pro se and cited Faretta v. California, 422 U.S. 806 (1975).
He also filed a pro se “memorandum of law” raising issues not asserted in counsel’s
objections to the presentence report. At sentencing, the district court denied
Sanders’s motions to proceed pro se, stating it had reviewed his pro se filings and,
based on the quality of his memorandum, concluding Sanders was not capable of self-
representation. The district court also indicated it would not consider argument as to
those rulings.
Initially, we conclude the government has not shown the appeal waiver in this
case clearly and unambiguously waived Sanders’s right to appeal a violation of his
Sixth Amendment right to self-representation at sentencing. See United States v.
Bradford, 806 F.3d 1151, 1154-55 (8th Cir. 2015) (noting appeal waiver did not
“precisely limit” definition of illegal sentence, and instead provided illegal sentence
“includes” some specific errors, but “does not include” less serious errors; stating this
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language implied there could be a range of sentencing errors, not all of which would
fall within scope of waiver; concluding defendant’s argument his constitutional rights
were violated at sentencing, if true, might bring his sentence within waiver’s
definition of illegal sentence); United States v. Sisco, 576 F.3d 791, 795 (8th Cir.
2009) (describing a plea agreement as a contract between government and defendant;
stating the burden is on government to prove a plea agreement clearly and
unambiguously waives defendant’s right to appeal, and any ambiguities are construed
against the government).
We further conclude Sanders clearly and unequivocally asserted his right to
self-representation, and the district court erred by denying the request without
conducting a Faretta hearing. See United States v. Kelley, 774 F.3d 434, 441 (8th
Cir. 2014) (explaining if request for self-representation is clear and unequivocal,
Faretta hearing must follow; stating right to self-representation is not absolute and
can be denied in certain circumstances, such as when request is untimely, defendant
deliberately engages in serious and obstructionist misconduct, or defendant is unable
to validly waive counsel). Even assuming, without deciding, this issue is subject to
review for harmless error, we conclude the error was not harmless, because the record
indicates Sanders and his counsel did not agree as to the motions to be filed and the
objections to be asserted at sentencing, and Sanders was not allowed to address the
district court freely on those issues. See McKaskle v. Wiggins, 465 U.S. 168, 179-81
(1984) (concluding Faretta rights had been adequately vindicated where defendant
“was given ample opportunity to present his own position to the court on every matter
discussed”); see also United States v. Evans, 559 F. App’x 475, 479-80, 484 (6th Cir.
2014) (unpublished) (where record showed defendant and counsel disagreed as to
strategy on important issues, including which motions to file and objections to assert,
and issues were not resolved in accordance with defendant’s wishes, denial of
self-representation at sentencing could not be harmless, even assuming harmless-error
review applied). In light of this conclusion, we need not consider the arguments
raised in the Anders and pro se briefs.
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Accordingly, we vacate Sanders’s sentence and remand to the district court for
further proceedings consistent with this opinion.
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