UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 94-40253
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UNITED STATES,
Plaintiff-Appellee,
VERSUS
CECIL RAY PATTERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
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(December 23, 1994)
Before DAVIS, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:
Cecil Ray Patterson was convicted of possession of a firearm
as a felon, 18 U.S.C. § 922(g), and carrying a firearm in
connection with a crime of violence, 18 U.S.C. § 924(c)(1).1 The
district court found that Patterson qualified as a career
offender under U.S.S.G. § 4B1.1 and sentenced Patterson to 366
months imprisonment on the 922(g) conviction and a five year
consecutive term on the 924(c)(1) conviction. This court then
vacated his sentence and remanded for a determination of whether
1
Full facts underlying these convictions are detailed in
United States v. Patterson, No. 92-5258 (5th Cir. June 18, 1993).
Patterson's prior convictions constituted crimes of violence
within the meaning of the career offender guideline. Id.
At resentencing, the district court held that Patterson did
not have the requisite prior convictions to qualify as a career
offender under U.S.S.G. § 4B1.1 and resentenced Patterson as an
armed career criminal under U.S.S.G. § 4B1.4. The district court
entered an Order and Judgment on Resentencing (Resentencing
Order), reducing Patterson's sentence to 327 months imprisonment
on the 922(g) conviction. The remainder of the sentence did not
change.
Shortly after resentencing, the district court filed a
Corrected Order and Judgment on Resentencing (Corrected Order)
vacating Patterson's 924(c)(1) conviction.2 Except for deleting
all reference to the 924(c)(1) conviction, this order was
identical to the Resentencing Order. Patterson attacks this
Corrected Order on several grounds.
I.
Patterson first argues that the district court erred by
declining to appoint counsel at his resentencing hearing. Prior to
his first sentencing, Patterson dismissed his court-appointed
attorney, made a knowing and intelligent waiver of his right to
counsel, and represented himself through the original sentencing
hearing. At his resentencing hearing, Patterson told the district
court that he thought it would be beneficial to have an attorney,
but only to help him get access to law enforcement documents
pertaining to his prior convictions. Patterson told the court that
2
The district court found that the 924(c)(1) conviction was
improper because the underlying crime of violence was not a
federal crime, as the statute requires.
"[o]ther than doing the investigative work, I do not want an
attorney." He filed a written motion reiterating this limited
request. The district court did not appoint him an attorney.
Patterson now claims that the district court erred by not
appointing him new counsel. We disagree. Patterson did not
unequivocally withdraw his prior waiver and reassert his right to
counsel. If he had, this might be a different issue. See United
States v. Taylor, 933 F.2d 307, 311-13 (5th Cir.), cert. denied,
112 S.Ct. 235 (1991). At best, Patterson was asking the district
court to appoint advisory counsel - an attorney who would be
limited to assisting him in technical matters. The sixth amendment
right to counsel does not extend to such a request. Locks v.
Sumner, 703 F.2d 403, 407-08 (9th Cir.), cert. denied, 464 U.S. 933
(1983). See also United States v. Shea, 508 F.2d 82, 85-86 (5th
Cir.), cert. denied, 423 U.S. 847 (1975). The decision to allow
this type of hybrid representation is squarely within the
discretion of the district court. Locks, 703 F.2d at 408. The
court did not abuse its discretion in declining to appoint counsel
under these circumstances.
II.
Patterson complains next that the district court erred by not
holding another hearing before entering its last sentencing order,
the Corrected Order. Patterson received two full sentencing
hearings, one before the district court entered his original
sentence and another before the court entered the Resentencing
Order. The district court did not hold an additional hearing
3
before it rendered the Corrected Order, which it entered within a
week of the Resentencing Order. Patterson now contends that he was
entitled to a third chance to object to the Presentence
Investigation Report (PSR) and a third sentencing hearing before
the entry of the Corrected Order. Patterson's contention is
incorrect.
A defendant's right to be present when the district court
alters his sentence depends on the type of action the district
court is taking. If the district court is imposing a new sentence
after the original sentence has been set aside, the defendant is
entitled to be there. United States v. Moree, 928 F.2d 654, 655
(5th Cir. 1991). However, a defendant is not entitled to be
present when the district court merely modifies an existing
sentence. Id.
With its Corrected Order, the district court was not imposing
a new sentence. To the contrary, it was correcting a discrete
portion of the Resentencing Order it had already rendered. The
Resentencing Order had not been vacated or set aside. The sole
change made by the Corrected Order was to vacate Patterson's
924(c)(1) conviction and remove all reference to that conviction
from the sentence. Thus, Patterson had no right to be present or
to be heard before the district court entered its Corrected Order.
III.
Patterson argues that because his conviction for carrying a
firearm in connection with a crime of violence has been vacated, he
no longer qualifies as an armed career criminal under U.S.S.G.
4B1.4. However, his armed career criminal status has never
4
depended on his 924(c)(1) conviction; it has always rested solely
on the fact that Patterson, a felon in possession of a firearm,
used that firearm to shoot a policeman. See Patterson, No. 92-5258
(5th Cir. 1992). Nothing about his corrected sentence changes
this.3
IV.
Patterson argues finally that the district court vindictively
penalized him for exercising his right to appeal by making his
second sentence more severe than his initial sentence. Patterson
was originally sentenced to 366 months on the 922(g) conviction
plus five consecutive years on the 924(c)(1) conviction, for a
total of 426 months. After the Corrected Order, Patterson was left
with a 327 month sentence on the 922(g) conviction. Patterson
argues that the first sentence was at the bottom of his original
guideline range, while his second sentence was at the very top of
his new, lower guideline range, making it a harsher sentence.
3
Patterson also argues that the district court incorrectly
enhanced his 922(g) sentence under several guideline provisions.
These contentions were addressed in the earlier appeal and we
decline to revisit them.
Additionally, in his Supplemental Response to Brief of
Appellee, Patterson argues for the first time that the district
court did not adequately specify its reasons for choosing a
particular length of sentence within a guideline range that
exceeds 24 months. We do not find that this is an issue of
manifest injustice, and so decline to address this tardy
argument. See United States v. Winn, 948 F.2d 145, 157 (5th Cir.
1991), cert. denied, 112 S.Ct. 1599 (1992).
5
Patterson's argument is meritless. Viewed cumulatively or
count-by-count, Patterson's second sentence was shorter than his
first. There is no error here.4
For the above reasons, Patterson's sentence imposed by the
district court in its Corrected Order and Judgment on Resentencing
is AFFIRMED.
4
Patterson contends that the PSR will provide the Bureau of
Prisons with inaccurate information because it does not reflect
that his 924(c)(1) conviction is no longer valid. Patterson's
concern is baseless. In addition to the PSR, the Bureau of
Prisons will receive the district court's Corrected Order, which
clearly vacates the 924(c)(1) conviction.
6