United States v. Patterson

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

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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

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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).

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 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.

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