FILED
NOT FOR PUBLICATION JUN 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30002
Plaintiff - Appellee, D.C. No. 3:11-cr-05158-RBL-1
v.
MEMORANDUM *
DANA LEON BROOKS,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted February 7, 2013.
Submission Withdrawn February 19, 2013.
Resubmitted June 21, 2013,
Seattle, Washington
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Appellant Dana Leon Brooks appeals his conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), and his sentence under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not deprive Brooks of his right to proceed pro se
under Faretta v. California, 422 U.S. 806 (1975). To invoke the right to
self-representation, a defendant must make a request that is “timely, not for
purposes of delay, unequivocal, voluntary, [and] intelligent.” United States v.
Maness, 566 F.3d 894, 896 (9th Cir. 2009) (per curiam). “A conditional waiver
can be stated unequivocally, as for example when a defendant says in substance: ‘If
I do not get new counsel, I want to represent myself.’” United States v.
Mendez-Sanchez, 563 F.3d 935, 946 (9th Cir. 2009). Brooks asked to represent
himself only when told he would not be given new counsel. Such a conditional
request can be unequivocal, but Brooks nonetheless equivocated. After a full
Faretta colloquy, Brooks stated that he would prefer to proceed with his current
counsel and not pro se. Brooks then reversed course just before the jury venire
was brought in and announced that he would rather proceed by himself. By stating
that he preferred counsel at the close of his Faretta colloquy, and then changing his
mind minutes later, Brooks equivocated and did not make an unequivocal request
for self-representation. We “indulge in every reasonable presumption against
waiver.” United States v. Forrester, 512 F.3d 500, 506 (9th Cir. 2008) (internal
2
quotation omitted). Brooks’s inconsistent positions did not present the
unequivocal request necessary to overcome this presumption and invoke his right
to self-representation. See Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989).
As we explained in Mendez-Sanchez, the need for unequivocal demand follows
from the nature of the “dueling rights at stake in Faretta,” and the fact that “self-
representation in most cases will have negative consequences.” 563 F.3d at 945.
Viewing the totality of the circumstances here, the district court did not err in
denying Brooks’s request for self-representation made minutes after he had
explicitly rejected self-representation following a full Faretta colloquy.
The district court also did not err in determining that Brooks was an armed
career criminal. Brooks argued that his conviction for second-degree burglary
under Wash. Rev. Code § 9A.52.030(1) does not qualify as an ACCA predicate
offense. A conviction under § 9A.52.030(1) is not categorically an ACCA
predicate offense because the definition of “building” under Washington law
contains alternatives that are not included in the generic definition of burglary
under federal law. United States v. Wenner, 351 F.3d 969, 972–73 (9th Cir. 2003).
Under the modified categorical approach, we must determine (1) what facts
the state conviction necessarily rested on and (2) whether these facts satisfy the
elements of the generic offense. See Shepard v. United States, 544 U.S. 13, 20–21
3
(2005). In making these determinations, we look to the “statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.” Id. at
16.
Brooks’s Shepard documents, his amended information and plea agreement,
indicate that he pleaded guilty to “enter[ing] or remain[ing] unlawfully in a
building located at 115 Orchard Ave. So., Eatonville, known as the residence of
G[] K[].” This describes the burglary of a “building” as the term is defined
generically, see United States v. Grisel, 488 F.3d 844, 848 (9th Cir. 2007) (en
banc), and Brooks’s decision to enter an Alford plea does not alter the legal
consequences of his plea agreement. United States v. Guerrero-Velasquez, 434
F.3d 1193, 1197 (9th Cir. 2006). Brooks’s conviction necessarily rested on the
building’s description because the State was required to prove that Brooks entered
or remained in something that matched at least one definition of “building” in the
statute. See Shepard, 544 U.S. at 21. Because the statute provided a finite list of
definitions, the district court could “determine which statutory phrase was the basis
for the conviction.” Descamps v. United States, 570 U.S. __, 11-9540, 2013 WL
3064407, at *6 (U.S. June 20, 2013) (internal quotation marks omitted). The
4
district court did not err in concluding that Brooks was an armed career criminal
and enhancing his sentence under the ACCA.1
Brooks contends that his sentence exceeded the statutory maximum in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Booker, 543 U.S. 220 (2005). Our circuit precedent forecloses this argument.
Grisel, 488 F.3d at 846–47.
Brooks contends for the first time on appeal that the residual clauses of the
ACCA and the United States Sentencing Guidelines §4B1.2 are unconstitutionally
vague. Because the district court did not base its sentencing decision on either
residual clause, we need not reach this issue.
AFFIRMED.
1
Brooks also contends that his burglary was not a “crime of violence” under
the United States Sentencing Guideline §4B1.2. “[T]he terms ‘violent felony’ in
the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and ‘crime of violence’ in Guidelines
section 4B1.2[] are interpreted according to the same precedent.” United States v.
Crews, 621 F.3d 849, 856 (9th Cir. 2010). The district court does not appear to
have relied on §4B1.2 in sentencing Brooks. To the extent it did, the district court
did not err because the same modified categorical analysis applies.
5