IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 22, 2009
No. 08-20760 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL D GOODSON, also known as Mike Goodson
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-06-98
Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Convicted, inter alia, of mail and wire fraud, Michael D. Goodson appeals
his conviction and sentence. Primarily, his contentions revolve around his
proceeding pro se. AFFIRMED.
I.
Prior to trial in July 2007, Goodson retained Abraham Fisch as his
attorney. Fisch, however, was unable to represent Goodson because the United
States District Court for the Southern District of Texas denied his application
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20760
for renewal of admission to practice before that court. Therefore, the district
court appointed Robert Fickman to replace Fisch as Goodson’s counsel.
Subsequently, Goodson advised the district court by letter that he desired
Fisch to represent him, would not accept any attorney other than Fisch, and
requested the court to inform Fickman not to contact him again. At a pretrial
conference in April 2007, Goodson reiterated his position: he wanted Fisch as
counsel or no one. Consequently, the district court dismissed Fickman as
Goodson’s counsel.
Prior to trial, the district court held a Faretta hearing and again
questioned Goodson about his decision to proceed pro se. See generally Faretta
v. California, 422 U.S. 806 (1975) (holding defendant in state criminal trial has
constitutional right to proceed without counsel when he voluntarily and
intelligently elects to do so). During the Faretta hearing, the court repeatedly
admonished Goodson concerning the dangers of proceeding at trial without
counsel. The court also questioned him about his educational background and
experience, establishing that he possessed sufficient knowledge and
understanding to represent himself. As discussed infra, Goodson informed the
court that he did not intend to present a defense. The district court appointed
James Alston as standby counsel and informed Goodson that Alston would not
try the case but, instead, would act as a “walking lawbook” for Goodson at trial.
Goodson proceeded pro se at trial and, consistent with what he had advised
the court at his Faretta hearing, did not question witnesses or otherwise present
evidence. He was convicted on 25 July 2007 on nine counts of conspiracy and
mail and wire fraud. At sentencing on 22 October 2008, Goodson, still
proceeding pro se, was sentenced, inter alia, to 293 months’ imprisonment.
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II.
Goodson contends: the district court erred at trial by excusing Government
witnesses without first asking him whether he desired to question them; he did
not knowingly and intelligently waive his Sixth Amendment right to counsel at
sentencing; and, the district court erred in applying the two-level enhancement
under Guideline § 2B1.1(b)(13)(A). Goodson failed, however, to present these
contentions in district court. Therefore, each is reviewed only for plain error, as
further discussed infra. See United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
To establish reversible plain error, Goodson must show a clear or obvious
error that affected his substantial rights. E.g., United States v. Baker, 538 F.3d
324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If reversible plain
error is established, we still have discretion to correct it and, generally, will do
so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
A.
Goodson’s assertion that the district court erred through its excusing-
without-asking procedure is premised on Goodson’s Sixth Amendment right to
self-representation, which includes a defendant’s right to control his case. See
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). Goodson maintains that,
because the court excused the witnesses as it did, the jury was given the
impression that Goodson was not in such control.
This is a claim of structural error, not subject to harmless-error review.
See id. at 177 n.8 (“[T]he right of self-representation is a right that when
exercised usually increases the likelihood of a trial outcome unfavorable to the
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No. 08-20760
defendant, its denial is not amenable to ‘harmless error’ analysis”.).
Nevertheless, review is only for plain error because, as noted, Goodson did not
preserve the issue in district court. See United States v. Phipps, 319 F.3d 177,
189 n.14 (5th Cir. 2003) (“An error not susceptible to harmless error review is
nevertheless susceptible to plain error review if the defendant did not object at
trial.”).
Goodson does not claim he attempted to question the Government
witnesses but was denied the opportunity. Instead, he maintains: even though,
at the Faretta hearing, he stated his intention to the district court not to
question any witnesses, the district court erred by not asking him in the presence
of the jury if he desired to do so.
The district court’s failure to make that inquiry did not, inter alia,
constitute clear or obvious error. Following Goodson’s statement at the Faretta
hearing that he did not intend to question Government witnesses, the court told
Goodson that, if he decided to question them, all he needed to do was stand and
the court would recognize him. Therefore, because Goodson deliberately chose
not to question any witness, the district court did not plainly err by failing to ask
Goodson if he desired to do so. Along that line, the record shows Goodson, inter
alia, utilized his standby counsel and gave his own closing argument, which
would indicate to the jury that he was in control of his case.
B.
As discussed, at the Faretta hearing, the district court determined that
Goodson had knowingly and voluntarily waived his right to counsel. Goodson
has not challenged the validity of his waiver for trial purposes, nor did he object
to continuing pro se at sentencing. Because Goodson failed to preserve in district
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court his assertion that he did not knowingly and intelligently waive his right
to counsel at sentencing, our review is only for plain error.
As shown, Goodson was fully aware of his right to counsel during trial.
Further, he made no attempt before or at sentencing to request counsel.
Several circuits have held that a waiver of counsel at trial carries over to
sentencing. See United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004)
(collecting cases); but see United States v. Ellerbe, 372 F.3d 462, 467-69 (D.C. Cir.
2004) (remanding to district court to determine whether defendant intended his
waiver of counsel at trial to carry over to sentencing). Therefore, the district
court’s decision not to obtain a second waiver of counsel for sentencing was not
clear or obvious error.
C.
Concerning his challenge to the two-level enhancement under Guideline
§ 2B1.1(b)(13)(A), Goodson concedes review is only for plain error. Nevertheless,
he claims reversible plain error.
Under Guideline § 2B1.1(b)(13)(A), if a defendant derives more than
$1,000,000 in gross receipts from one or more financial institutions, his base-
offense level should be increased two levels. According to Goodson, there was an
insufficient factual basis to support finding he obtained from a financial
institution the $1,555,048 listed in the presentence investigation report.
Goodson bases this on the definition of financial institution applicable at
the time of his sentencing, which did not specifically include mortgage lenders.
That definition, however, contained the catch-all provision “any similar entity
whether or not insured by the federal government”. U.S.S.G. § 2B1.1, cmt. n.1
(2007). A mortgage lender could easily be construed as a “similar entity”. E.g.,
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No. 08-20760
United States v. Edelkind, 467 F.3d 791, 801-02 (1st Cir. 2006) (holding a private
mortgage lender could be considered a “financial institution” for purposes of the
two-level enhancement under Guideline § 2B1.1(b)(13)(A)). Therefore, the
district court did not commit clear or obvious error by applying the two-level
enhancement.
III.
For the forgoing reasons, the judgment is AFFIRMED.
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