IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 17, 2008
No. 07-60397
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES EDWARD SPARKMAN, also known as Edward Charles Sparkman,
also known as Popa Charlie,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:06-CR-200-1
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
A jury convicted Charles Edward Sparkman of being a convicted felon in
possession of a firearm. The district court sentenced him to 294 months of
imprisonment and a five-year term of supervised release. Sparkman filed a
timely notice of appeal.
Sparkman contends that the district court should have instructed the jury
to approach with great care and caution the testimony of interested witnesses.
However, because Sparkman did not request such an instruction on the record,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60397
review of the instruction given regarding the credibility of witnesses is reviewed
only for plain error. See United States v. Redd, 355 F.3d 866, 874-76 & n.8 (5th
Cir. 2003). The instruction given tracked this court’s pattern jury instructions.
Sparkman has not shown plain error in this regard. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005); United States v. Foy,
28 F.3d 464, 474 (5th Cir. 1994).
Sparkman argues that he was denied a fair trial when the prosecutor
made improper comments during closing argument. This argument, too, is
reviewed only for plain error as it was not raised in the district court. The
inference argued by the prosecutor, that Sparkman could have thrown a gun
from a car window without a pursuing law enforcement officer noticing, was
supported by the evidence adduced at trial. Accordingly, the comment was not
improper, and Sparkman has not shown plain error. See United States v.
Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998).
Sparkman argues that his Sixth Amendment rights were violated when
he was allowed to proceed pro se at sentencing without a sufficient colloquy to
establish that he knowingly and unequivocally waived his right to counsel. We
agree. Because the sentencing transcript in Sparkman’s case contains no
Faretta1 colloquy demonstrating that the district court warned him of the “perils
and disadvantages of self-representation,” particularly before attempting “to
navigate the Guidelines’ various potentialities on his own,” we vacate
Sparkman’s sentence and remand for resentencing. See United States v. Virgil,
444 F.3d 447, 454, 456 (5th Cir. 2006). That being so, we do not address the
other sentencing issue Sparkman now raises. See United States v. Akpan, 407
F.3d 360, 377 n.62 (5th Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED
FOR RESENTENCING.
1
Faretta v. California, 422 U.S. 806, 833-35 (1975).
2