United States v. Jason Welch

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4439

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JASON CHRISTOPHER WELCH,

Defendant - Appellant.

No. 13-4440

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JASON CHRISTOPHER WELCH,

Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:06-cr-00291-TDS-1; 1:10-cr-00110-TDS-1)

Submitted: December 12, 2013 Decided: January 30, 2014

Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Alan D. Campbell, S. Hamilton, Massachusetts, for Appellant.
Harry L. Hobgood, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Jason Christopher Welch pled guilty in 2007 to one

count of mail fraud, in violation of 18 U.S.C. § 1341 (2012),

and one count of aggravated identity theft, in violation of

18 U.S.C. §§ 2, 1028A(a)(1) (2012), and was sentenced to

twenty-seven months’ imprisonment, a consecutive term of

twenty-four months’ imprisonment, and concurrent terms of

supervised release of three years and one year. In 2010, Welch

pled guilty to one count of escape from a residential re-entry

center, in violation of 18 U.S.C. § 751(a) (2012), and was

sentenced to sixteen months’ imprisonment and three years of

supervised release. In 2012, the district court revoked Welch’s

terms of supervised release and sentenced him to concurrent

prison terms of fourteen months and twelve months in the mail

fraud and aggravated identity theft case and a consecutive

prison term of fourteen months in the escape case. The court

also imposed two consecutive twenty-two-month terms of

supervised release.

Welch appealed the revocation judgment, arguing that

the district court had erred in ordering that the

twenty-two-month terms of supervised release run consecutively.

The Government conceded that the district court had reversibly

erred under 18 U.S.C. § 3624(e) (2012) in ordering that the

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terms of supervised release run consecutively * and moved this

court for a remand to the district court for resentencing. We

granted the Government’s motion, vacated Welch’s sentences, and

remanded for resentencing pursuant to 18 U.S.C. § 3624(e).

On remand, the district court entered an amended

judgment re-imposing the concurrent fourteen- and twelve-month

prison terms and the consecutive fourteen-month prison term and

imposing concurrent twenty-two-month terms of supervised

release. On appeal from the amended judgment, Welch’s counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal,

but questioning whether the district court abused its discretion

in denying Welch’s motion to appoint substitute counsel and

erred in not “fully vacating” his sentences and convening a

“complete resentencing” hearing and in ordering that the prison

term imposed in the escape case run consecutively to the prison

term imposed in the mail fraud and aggravated identity theft

case. Welch was informed of his right to file a pro se

supplemental brief, but he has not done so. The Government

declined to file a brief. We affirm.

*
Section 3624(e) provides that a “term of supervised
release . . . runs concurrently with any Federal, State, or
local term of . . . supervised release . . . for another offense
to which the person is subject or becomes subject during the
term of supervised release.”

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We review for abuse of discretion a district court’s

ruling on a motion to substitute counsel. United States v.

Perez, 661 F.3d 189, 191 (4th Cir. 2011). In determining

whether a district court has abused it discretion in denying a

motion seeking appointment of substitute counsel, we consider

“three factors: the timeliness of the motion; the adequacy of

the [district] court’s inquiry into the defendant’s complaint;

and whether the attorney/client conflict was so great that it

resulted in a total lack of communication preventing an adequate

defense.” Id. (internal quotation marks omitted). We then

weigh these factors against the district court’s “interest in

the orderly administration of justice.” United States v.

Reevey, 364 F.3d 151, 157 (4th Cir. 2004).

After reviewing the record, we conclude that the

district court did not abuse its discretion in denying Welch’s

motion. With respect to the first factor, Welch delayed in

bringing the motion. This court’s judgment remanding for

resentencing issued on March 1, 2013, and Welch’s resentencing

hearing was scheduled for May 14, 2013. Welch, however, did not

make his motion until after the commencement of the resentencing

hearing. That is, he waited over two months to bring the motion

on the day of resentencing. If the district court had granted

the motion, it may have had to continue the resentencing

hearing. Moreover, Welch has not shown, and the record does not

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reveal, any exigent circumstances justifying his last-minute

request. Accordingly, the motion was not timely. See Perez,

661 F.3d at 191-92 (concluding that defendant who filed motion

for substitution four months after conviction and two weeks

before scheduled sentencing hearing had delayed in bringing the

motion); Reevey, 364 F.3d at 157 (“[A] continuance request for

the substitution of counsel made on the first day of trial is

clearly untimely under all but the most exigent circumstances.”

(internal quotation marks omitted)).

Additionally, upon inquiry, the district court learned

the basis for Welch’s motion, heard and considered his

explanation for why he wanted new counsel appointed, and

addressed his reasons in its oral ruling denying the motion.

Accordingly, the district court’s inquiry into the basis for

Welch’s complaint was adequate. See Perez, 661 F.3d at 192

(concluding that the inquiry factor weighed in the Government’s

favor where district court requested that defendant explain why

he believed he should be appointed new counsel, considered those

reasons, and found current counsel had done an effective job in

representing defendant). Further, the record does not reveal

any basis for concluding that there existed an attorney-client

conflict so great that it prevented Welch from receiving an

adequate defense. Weighing these factors against the district

court’s interest in efficient administration of justice on

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remand, we conclude that the court correctly denied Welch’s

motion to appoint substitute counsel.

Turning to Welch’s challenges to his sentences, we

conclude they are without merit because the mandate rule

precluded the district court from altering the prison sentences

it imposed in 2012. “The mandate rule is a specific application

of the law of the case doctrine.” Volvo Trademark Holding

Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir.

2007). When we remand for resentencing, the mandate rule

precludes the district court from considering issues that were

expressly or impliedly decided by this court on appeal.

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).

“In addition, the [mandate] rule forecloses litigation of issues

decided by the district court but foregone on appeal or

otherwise waived, for example because they were not raised in

the district court.” Id.; see Doe v. Chao, 511 F.3d 461, 465

(4th Cir. 2007) (“[A]ny issue conclusively decided by this court

on the first appeal is not remanded, and . . . any issue that

could have been but was not raised on appeal is waived and thus

not remanded.” (internal quotation marks omitted)).

Welch had the opportunity to challenge his prison

sentences in his initial appeal, but he did not do so.

See Volvo Trademark, 510 F.3d at 481 (noting that the plaintiff

failed to raise its claim in earlier proceedings and that “a

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remand proceeding is not the occasion for raising new arguments

or legal theories”). The propriety of those prison terms and

their sequential posture thus was not before the district court

at resentencing. Further, we remanded for resentencing pursuant

to 18 U.S.C. § 3624(e). Accordingly, the district court did not

reversibly err on remand in failing to alter Welch’s revocation

prison sentences or to hold a “complete” resentencing hearing.

Finally, in accordance with Anders, we have reviewed

the entire record in this case and have found no meritorious

issues for appeal. We therefore affirm the district court’s

amended judgment. This court requires that counsel inform

Welch, in writing, of the right to petition the Supreme Court of

the United States for further review. If Welch requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Welch.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED