United States v. Curtis Richardson , 674 F. App'x 262 ( 2017 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-4359
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    CURTIS RICHARDSON,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence. R. Bryan Harwell, District Judge.
    (4:15-cr-00492-RBH-1)
    Submitted:   November 30, 2016            Decided:   January 3, 2017
    Before NIEMEYER, TRAXLER, and FLOYD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    William F. Nettles, IV, Assistant Federal Public Defender,
    Florence, South Carolina, for Appellant.  Christopher Dolan
    Taylor, Assistant United States Attorney, Florence, South
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Curtis Richardson appeals his conviction and sentence of 57
    months of imprisonment following his plea of guilty to being a
    felon in possession of a firearm and ammunition, in violation of
    18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012).           Appellate counsel has
    filed a brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967), concluding that there are no meritorious issues for appeal
    but questioning whether: (1) the district court erred in denying
    Richardson’s motion to dismiss for alleged violations of the Speedy
    Trial Act, 18 U.S.C. § 3161(b) (2012); (2) the district court erred
    in denying Richardson’s motion in limine; and (3) the district
    court erred in allowing Richardson to proceed pro se.            Richardson
    has filed a pro se supplemental brief contending that two prior
    state convictions used to enhance his sentence were invalid, and
    the presentence report counted offenses that were too old to be
    included in his criminal history score.         We affirm.
    We review a district court’s legal conclusions with respect
    to a motion to dismiss the indictment de novo, and its factual
    findings for clear error.         United States v. Perry, 
    757 F.3d 166
    ,
    171 (4th Cir. 2014).
    The   Speedy   Trial   Act    provides,   in   pertinent    part:   “Any
    information   or    indictment     charging    an   individual    with   the
    commission of an offense shall be filed within thirty days from
    the date on which such individual was arrested or served with a
    2
    summons in connection with such charges.”        18 U.S.C. § 3161(b)
    (2012).
    Richardson contends that the Speedy Trial Act’s 30-day period
    was triggered upon his state arrest on April 14, 2015.       However,
    his argument is directly foreclosed by our decision in United
    States v. Thomas, where we held that the 30-day period is triggered
    upon a defendant’s arrest or indictment on federal charges, not
    state charges.   
    55 F.3d 144
    , 148 (4th Cir. 1995); see United States
    v. Burgess, 
    684 F.3d 445
    , 451 (4th Cir. 2012) (citing Thomas).
    Richardson was indicted on the federal charge on July 28, 2015,
    and arrested the next day, July 29.     Thus, we conclude there was
    no violation of the Speedy Trial Act.
    Next, we review de novo a district court’s refusal to allow
    a justification defense.     United States v. Perrin, 
    45 F.3d 869
    ,
    871 (4th Cir. 1995); United States v. Ricks, 
    573 F.3d 198
    , 200
    (4th Cir. 2009).
    To    establish   the   justification   defense   to   unlawfully
    possessing a firearm, a defendant must show that he
    (1)   was under unlawful and present threat of death or
    serious bodily injury;
    (2)   did not recklessly place himself in a situation
    where he would be forced to engage in criminal
    conduct;
    (3)   had no reasonable legal alternative (to both the
    criminal act and the avoidance of the threatened
    harm); and
    3
    (4)    [can show] a direct causal relationship between the
    criminal action and the avoidance of the threatened
    harm.
    
    Ricks, 573 F.3d at 202
    (internal quotation marks omitted).                This
    defense is construed “very narrowly.”            United States v. Mooney,
    
    497 F.3d 397
    ,   404   (4th   Cir.   2007)   (internal   quotation    marks
    omitted).
    We conclude that the district court did not err in denying
    Richardson’s motion in limine.          Although Richardson may have had
    a generalized fear, the record does not show that he was under any
    immediate threat of serious bodily injury, and thus, Richardson
    has not shown that he was entitled to the justification defense.
    We review de novo a district court’s determination that a
    defendant has waived his right to counsel.          United States v. Owen,
    
    407 F.3d 222
    , 225 (4th Cir. 2005); see United States v. Ductan,
    
    800 F.3d 642
    , 647 n.1 (4th Cir. 2015).
    A defendant “may waive the right to counsel and proceed at
    trial pro se only if the waiver is (1) clear and unequivocal,
    (2) knowing, intelligent, and voluntary, and (3) timely.”               United
    States v. Bernard, 
    708 F.3d 583
    , 588 (4th Cir. 2013); see Faretta
    v. California, 
    422 U.S. 806
    , 835 (1975).
    Our review of the record reveals that the district court fully
    complied with Faretta in granting Richardson’s motion to proceed
    pro se after a thorough hearing.            Thus, we conclude the district
    court did not err in allowing Richardson to proceed pro se.
    4
    We review a sentence for reasonableness “under a deferential
    abuse-of-discretion standard.”        United States v. McCoy, 
    804 F.3d 349
    , 351 (4th Cir. 2015) (quoting Gall v. United States, 
    552 U.S. 38
    , 41 (2007)).
    In his pro se supplemental brief, Richardson contends that
    two prior state convictions used to enhance his sentence were
    invalid because they were uncounseled and not the result of knowing
    and voluntary guilty pleas.          However, Richardson has presented
    nothing more than an assertion that his prior convictions are
    invalid.   Moreover, the PSR states that Richardson was represented
    by counsel with respect to the marijuana charge, and the firearm
    charge was dismissed and did not affect Richardson’s criminal
    history score.      We conclude there was no error with respect to
    these charges.
    Finally, Richardson contends in his pro se supplemental brief
    that the PSR counted offenses that were too old to be included in
    his criminal history score.        In particular, he points to a second-
    degree burglary charge that was committed in 1998, beyond the 15-
    year applicable time period. See U.S. Sentencing Guidelines Manual
    § 4A1.2(e)(1) (2015).     However, USSG § 4A1.2(k)(2) provides that
    in the case of a revocation of parole involving a felony, the
    applicable   time    period   is    “the   date   of   last   release   from
    incarceration on such sentence.”           Richardson’s parole for the
    burglary charge was revoked in December 2005, and he was released
    5
    from prison in July 2006, within 15 years of the possession of the
    firearm and ammunition.      Thus, we conclude there was no sentencing
    error.
    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 judgment of the district court.             This court
    requires that counsel inform Richardson, in writing, of the right
    to petition the Supreme Court of the United States for further
    review.    If Richardson 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 Richardson.
    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
    6