UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4956
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIOMBE N. STAFFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00030-MR-1)
Submitted: June 15, 2012 Decided: July 24, 2012
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Henderson Hill, Executive Director, Ann L. Hester, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina,
Thomas M. Kent, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tiombe Stafford appeals her conviction and sentence
for possession with intent to distribute cocaine, 21 U.S.C.
§ 841(a)(1). We affirm her conviction, but vacate her sentence
and remand for resentencing.
First, Stafford contends that she was deprived of her
Sixth Amendment right to counsel because the district court
failed to obtain a valid waiver of counsel and allowed Stafford
to represent herself.
The Sixth Amendment guarantees not only the right to
be represented by counsel, but also the right to self-
representation. Faretta v. California, 422 U.S. 806, 819
(1975). The decision to represent oneself must be knowing and
intelligent. Id. at 835. Courts must entertain every
reasonable presumption against the waiver of counsel. Brewer v.
Williams, 430 U.S. 387, 404 (1977). The determination of a
waiver of the right to counsel is a question of law, and, thus,
is reviewed de novo. United States v. Singleton, 107 F.3d 1091,
1097 n.3 (4th Cir. 1997).
An assertion of the right to self-representation must
be: (1) clear and unequivocal; (2) knowing, intelligent, and
voluntary; and (3) timely. United States v. Frazier-El, 204
F.3d 553, 558 (4th Cir. 2000). While a district court must
determine if a waiver of counsel is knowing and intelligent, no
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particular interrogation of the defendant is required, so long
as the district court warns the defendant of the dangers of
self-representation so that she makes her choice with her eyes
open. United States v. King, 582 F.2d 888, 890 (4th Cir. 1978).
We have reviewed the proceedings and find that Stafford was
adequately warned of the dangers of self-representation and
knowingly and voluntarily waived her right to counsel. Id.
Additionally, the district court prudently required Stafford to
proceed with hybrid representation--appointing an attorney to
serve as her standby counsel. Such a decision was within the
district court’s discretion. McKaskle v. Wiggins, 465 U.S. 168,
176 (1984).
Next, Stafford contends that the district court erred
when it ordered her to reimburse the government for the services
of her court-appointed attorneys. On this contention, the
government concedes error.
In United States v. Moore, 666 F.3d 313 (4th Cir.
2012), we noted that under the Criminal Justice Act, 18 U.S.C. §
3006A, the government must provide adequate legal representation
to criminal defendants charged with a federal felony who are
unable to pay, but if the district court subsequently finds that
the defendant “‘is financially able to obtain counsel or to make
partial payment for the representation,’” repayment is
authorized under subsection (f). Moore, 666 F.3d at 321
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(quoting 18 U.S.C. § 3006A(c)). Subsection (f) authorizes a
district court to order repayment of attorneys’ fees “[w]henever
. . . the court finds that funds are available for payment from
or on behalf of a person furnished representation.” 18 U.S.C.
§ 3006A(f).
In Moore, we held that to order reimbursement of
attorneys’ fees, the district court must “find[] that there are
specific funds, assets, or asset streams (or the fixed right to
those funds, assets or asset streams) that are (1) identified by
the court and (2) available to the defendant for the repayment
of the court-appointed attorneys’ fees.” 666 F.3d at 322. We
noted that the district court made no findings that the
defendant was “financially able . . . to make partial payment
for the representation” or that funds were “available for
payment.” Id. at 323 (internal quotation marks omitted). We
also noted that, in the absence of such findings, the district
court simultaneously concluded that the defendant was unable to
pay a fine or interest. Id. Finding that the district court’s
reimbursement order conflicted with the statutory requirements,
we vacated that portion of the judgment and remanded for
resentencing. Id. at 324.
Similarly, the district court here made no findings
regarding Stafford’s ability to reimburse the government for
attorneys’ fees or the availability of such funds. To the
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contrary, the district court concluded that Stafford was unable
to pay a fine or interest. Because Stafford’s reimbursement
order is of the same type we rejected in Moore, we vacate that
portion of the district court’s judgment and remand for
resentencing.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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