United States v. Ruben Mancillas , 880 F.3d 297 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1254
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUBEN MANCILLAS,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cr-00020-WTL-DML-1 — William T. Lawrence, Judge.
ARGUED DECEMBER 7, 2017 — DECIDED JANUARY 23, 2018
Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. A jury convicted Ruben Mancillas of
two counts of possessing ammunition as a felon, in violation of
18 U.S.C. § 922(g)(1). On appeal, he raises two challenges to his
sentencing: (1) that he was denied the right to represent
himself at sentencing; and (2) that the district court applied the
wrong base offense level because the Indiana offense of
2 No. 17-1254
strangulation is not a “crime of violence” for Sentencing
Guidelines purposes. We hold that the Indiana offense of
strangulation is a crime of violence for Sentencing Guidelines
purposes, and thus, the district court did not err in calculating
Mancillas’ base offense level. However, we remand for
resentencing since the court summarily denied Mancillas’
clear and unequivocal request to represent himself at sentenc-
ing and failed to conduct a Faretta colloquy.
I. BACKGROUND
On August 4, 2015, Mancillas and his girlfriend engaged in
a heated argument in their Indianapolis home. The argument
drew the attention of Mancillas’ next-door neighbor, Donna
Little, when she heard gunshots. When Little looked out her
back door, she observed Mancillas outside wielding a gun, and
promptly called the police.
When officers from the Indianapolis Metropolitan Police
Department arrived, Mancillas ran into a wooded area behind
his house. After the officers detained him, the officers discov-
ered ammunition on Mancillas’ person, near the back-door of
Mancillas’ house, and in a duffel bag belonging to Mancillas in
the wooded area behind his house. No gun was ever recovered
from the search.
Mancillas was indicted on January 20, 2016, with two
counts of being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1). Attorney Jeffrey Baldwin
initially filed an appearance on behalf of Mancillas. However,
Joseph Clearly of the Indiana Federal Community Defenders
was appointed to represent Mancillas during his initial
appearance. On May 23, 2016, Mancillas filed a pro se “Motion
No. 17-1254 3
for Withdraw of Counsel,” and shortly thereafter, without the
district court’s intervention, Michael Donahoe of the Indiana
Federal Community Defenders replaced Cleary as counsel.
Mancillas proceeded to trial with Donahoe as his attorney.
After a two-day trial, the jury found Mancillas guilty of both
counts.
On January 30, 2017, one day before Mancillas’ sentencing,
the district court received a letter from Mancillas, dated
January 18, 2017. In the letter, Mancillas asked the court to
continue the sentencing, stating that they, meaning Mancillas
and Donahoe, “were not prepared to proceed.” Mancillas
noted that there were “viable defenses” that were not pre-
sented at trial, and that he needed more time to “have all
available documented material of facts to be presented by my
defense counsel at my sentencing hearing.”
At the beginning of the sentencing, the district court asked
Mancillas if he had adequate time to read through the Pre-
sentence Investigation Report (PSR) and go over it with
Donahoe. Mancillas told the court he had not, and, referencing
his letter, requested that the court continue the sentencing.
Mancillas sought to contest the PSR’s suggested application
of a four-level enhancement to his base offense level for
possessing ammunition in connection with the state felony
offense of criminal recklessness, pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B). See Ind. Code § 35-42-2-2(b)(1)(A) (2014).
Mancillas disputed that he fired a gun in the incident, and he
explained that in order to contest the enhancement, he wished
to submit tape recordings of three phone calls, as well as to call
a case agent to testify. Donahoe also objected to the application
4 No. 17-1254
of this enhancement during the sentencing, but disagreed that
playing the phone calls would assist in contesting the enhance-
ment.
Mancillas then tied his request for a continuance to a
request to proceed pro se:
So I won’t be able to—properly be able to de-
fend myself today, and I’ve asked Mr. Donahoe
to ask the Court to withdraw from the case. I
feel he’s ineffective. He has been ineffective
throughout the whole trial. He refused to call
witnesses on my behalf. So he didn’t raise any
viable issues.
Mancillas concluded by requesting that the court issue one
final continuance in order to allow him “personally to be
prepared for the sentencing hearing.”
The court immediately decided Mancillas would not be
allowed to proceed without Donahoe as counsel, stating, “In
regards to relieving Mr. Donahoe of his representation, I am
not going to do that, Mr. Mancillas.” The court noted that
Donahoe was Mancillas’ third lawyer, and reiterated that
Donahoe would not be allowed to withdraw.
The court then asked Donahoe to opine on Mancillas’
request to continue the sentencing in order to play the phone
calls, which resulted in a return to the issue of Mancillas’
request to represent himself:
Donahoe: I don’t think [the phone calls] help
his case at all, and that’s not going to
No. 17-1254 5
change. We could continue this for
30 days. It’s still not going to change.
So what he has expressed to me –
and I don’t know if he still has this
position or not – is that he wants to
represent himself so that he can go
down that path and play those calls
for the Court.
The Court: I think I’ve hopefully indicated that
I will not relieve Mr. Donahoe of his
responsibilities. We will continue
with this sentencing hearing today.
All right.
Mancillas: So Your Honor, you’re denying my
request to proceed pro se?
The Court: I am.
Mancillas: And you’re also denying the
continuance?
The Court: I am.
As the court continued with the sentencing, the prosecutor
interjected to clarify the grounds for denying Mancillas’
requests to continue the sentencing and represent himself. The
court noted that “in regards to the removal of Mr. Donahoe,
this is Mr. Mancillas’ third lawyer … . Mr. Donahoe’s been
here for the trial. I think it would take another attorney way
too long to get up to speed, have to review transcripts and such
as that.”
6 No. 17-1254
The sentencing proceeded that day, and the court imposed
a 100-month sentence.
II. DISCUSSION
A. Mancillas’ Self-Representation Request
The Sixth Amendment implicitly entails a right to self-
representation. Faretta v. California, 422 U.S. 806, 819 (1975). A
defendant may proceed pro se as long as he can knowingly
and intelligently waive his or her Sixth Amendment right to
counsel. United States v. Clark, 774 F.3d 1108, 1112 (7th Cir.
2014).
In order to proceed pro se, a defendant must “clearly and
unequivocally” raise the right to self-representation. See Faretta,
422 U.S. at 835. Courts have required an unequivocal assertion
of the right to self-representation in order to prevent a defen-
dant from using an ambiguous waiver of the right to counsel
as a tool to overturn his or her conviction. See United States v.
Campbell, 659 F.3d 607, 612 (7th Cir. 2011), vacated on other
grounds, sub. nom. Campbell v. United States, 568 U.S. 802 (2012).
Moreover, a request to proceed pro se must be made in a
timely fashion. United States v. Oakey, 853 F.2d 551, 553 (7th Cir.
1988). We have noted that “no case holds that an absolute right
of self-representation exists after trial begins,” United States v.
Kosmel, 272 F.3d 501, 506 (7th Cir. 2001), and we have upheld
the denial of requests to proceed pro se made in the middle of
trial. See Oakey, 853 F.2d at 553–54 (finding no error in denial of
“ambiguous” request to proceed pro se made prior to fourth
day of trial).
No. 17-1254 7
However, we have also recognized that defendants can
waive the right to counsel and proceed pro se post-trial and at
sentencing. See United States v. Harrington, 814 F.3d 896, 900–01
(7th Cir. 2016) (finding a knowing and intelligent waiver of the
right to counsel at sentencing).
Mancillas’ initial letter to the district court did not consti-
tute a clear and unequivocal request for self-representation. In
fact, the letter was framed as a request for a continuance, and
contemplated that a continuance was necessary in order for his
lawyer to present certain arguments Mancillas believed were
necessary to contest a sentencing enhancement.
However, on the day of sentencing, Mancillas unequivo-
cally raised the issue of self-representation, and his statements
clearly indicated that he wished to proceed pro se. Mancillas
told the court that he had “asked Mr. Donahoe … to withdraw
from the case,” and that he needed a continuance in order to be
“personally” prepared for the sentencing. Donahoe elaborated
on Mancillas’ statements and said that Mancillas “wants to
represent himself so that he can go down that path and play
those calls for the Court.”
More importantly, the district court clearly understood
Mancillas’ statements as a request to proceed pro se: “In
regards to relieving Mr. Donahoe of his representation, I am
not going to do that, Mr. Mancillas.” When Mancillas directly
asked the court to confirm it was denying his “request to
proceed pro se,” the court did so, and then moved on with the
sentencing.
All of these statements were more than sufficient to raise
the issue of self-representation. At that point, the court should
8 No. 17-1254
have performed a formal colloquy to address Mancillas’
request for self-representation. See Faretta, 422 U.S. at 834–35;
Clark, 774 F.3d at 1112; see also Campbell, 659 F.3d at 612 (stating
that an “unequivocal though conditional” request for self-
representation in a letter was sufficient to trigger a colloquy).
Faretta colloquies, as they are commonly called, are necessary
to ensure that a defendant properly waives the right to counsel
when the issue of self-representation is raised clearly and
unequivocally. Clark, 774 F.3d at 1112.
We have stated that in these colloquies, courts “should
explore whether the defendant realizes the difficulties he will
encounter in acting as his own attorney and advise the defen-
dant that proceeding pro se is unwise.” United States v. Todd,
424 F.3d 525, 531 (7th Cir. 2005). As part of this formal and
thorough inquiry, we have also stressed that courts should
inquire as to the defendant’s age and education, and inform
him of the charges against him and the possible penalties a
conviction might carry. United States v. Belanger, 936 F.2d 916,
918 (7th Cir. 1991). However, when the request is made post-
trial, a defendant is “already well aware of the charges and
their severity,” thus lessening the need for such a searching
inquiry. See Harrington, 814 F.3d at 900.
Rather than address Mancillas’ request for self-representa-
tion, the court summarily denied it, only reminding Mancillas
that Donahoe was his third attorney. When Donahoe,
Mancillas, and the prosecutor returned to the issue of self-
representation, the court again reaffirmed that it was denying
the request without any inquiry into the matter.
No. 17-1254 9
Even at sentencing, where the complexities of trial and the
difficult strategic choices are past, a court must respect the
wishes of a defendant who unequivocally wishes to exercise
his or her right to proceed pro se. This means undertaking a
meaningful inquiry into a request for self-representation;
summarily denying the request without any inquiry is error.
Since denial of the right to self-representation is not subject
to the harmless error analysis, we must remand for
resentencing. See McKaskle v. Wiggins, 465 U.S. 168, 177, n.8
(1984). On remand, the court should inquire as to whether
Mancillas wishes to represent himself at resentencing. If he
does, the court should conduct a formal Faretta colloquy. If
Mancillas insists on representing himself, then he may pro-
ceed pro se and raise his arguments contesting the sentencing
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B). See
Harrington, 814 F.3d at 901 (noting that “[u]nless the judge
could convince [the defendant] to change his mind, the judge
had no choice but to allow [the defendant] to proceed [at
sentencing], as he had insisted, without counsel.”).
B. Mancillas’ Base Offense Level and the Indiana Crime
of Strangulation
Mancillas also contends that the Indiana crime of strangula-
tion is not a “crime of violence” for purposes of the federal
Sentencing Guidelines. Mancillas’ criminal history included a
2007 Indiana state court conviction for strangulation. The
PSR recommended a base offense level of 20, rather than 14
pursuant to U.S.S.G. § 2K2.1(a)(6), on the basis that his prior
strangulation conviction qualified as a crime of violence. See
U.S.S.G. § 2K2.1(a)(4)(A); § 2K2.1, cmt. n.1; § 4B1.2(a).
10 No. 17-1254
The district court adopted the PSR’s recommended base
offense level of 20; because Mancillas did not contest this
before the district court, we review for plain error. United States
v. Tyson, 863 F.3d 597, 599 (7th Cir. 2017). Under this standard,
we will only reverse if (1) there was an error; (2) the error was
plain; (3) the error affected the defendant’s substantial rights;
and (4) the error “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” Id. (quoting Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)).
U.S.S.G. § 4B1.2(a)(1), part of the career offender Sentencing
Guidelines, defines a “crime of violence” as “any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that—has as an element the use, attempted
use, or threatened use of physical force against the person of
another … .” This is commonly called the “elements clause.”
See United States v. Campbell, 865 F.3d 853, 855 (7th Cir. 2017).
The Sentencing Guidelines also enumerate certain offenses as
crimes of violence, but strangulation is not one of them. See
§ 4B1.2(a)(2).
The phrase “physical force” in the elements clause “means
violent force—that is, force capable of causing physical pain or
injury to another person.” Johnson v. United States, 559 U.S. 133,
140 (2010).
We apply the categorical approach in determining whether
an offense is a crime of violence under the elements clause.
Campbell, 865 F.3d at 855. Thus, we are to “look only to the
statutory elements of the crime, without paying attention to the
specific facts of the case.” Id.
No. 17-1254 11
In 2007, when Mancillas committed the offense of strangu-
lation, the Indiana statute for strangulation stated as follows:
(b) A person who, in a rude, angry, or insolent
manner, knowingly or intentionally:
(1) applies pressure to the throat or
neck of another person; or
(2) obstructs the nose or mouth of the
another person;
in a manner that impedes the normal breathing
or the blood circulation of the other person
commits strangulation, a Class D felony.
Ind. Code § 35-42-2-9 (2006).
Mancillas focuses on the second means of committing
strangulation: by obstructing the nose or mouth of another. He
points out that the words “force” and “bodily injury” are
absent from the statute, and suggests that the mere obstruction
of the nose or mouth can be accomplished in a non-violent
manner. In support, Mancillas directs us to an unpublished
Indiana Court of Appeals opinion which affirmed a strangula-
tion conviction for a defendant who “held a blanket over [the
victim’s] face, smothering her and causing her to have diffi-
culty breathing for about fifteen seconds.” Smith v. State, No.
49A04-0712-CR-713, 2008 WL 2673231, *2 (Ind. Ct. App. July 9,
2008) (unpublished).
The Supreme Court in Johnson held that physical force
means violent force that is only “capable of causing physical
pain or injury.” Johnson, 559 U.S. at 140 (emphasis added).
Johnson did not hold that physical force requires “a level of
12 No. 17-1254
force likely to cause serious injury, or traumatic injury.” United
States v. Duncan, 833 F.3d 751, 756 (7th Cir. 2016). Rather, the
physical force must only rise to a “degree of force necessary to
inflict pain” which could be as minimal as a slap in the face.
Johnson, 599 U.S. at 143; see also Duncan, 833 F.3d at 754 (“While
mere touching is not enough to show physical force, the
threshold is not a high one; a slap in the face will suffice.”).
The Indiana strangulation statute explicitly contemplates a
degree of violent force in the final element of the offense. A
conviction for strangulation requires proof of applying
pressure to the throat or neck, or obstructing the nose or
mouth, “in a manner that impedes the normal breathing or the blood
circulation.” Ind. Code § 35-42-2-9 (2006) (emphasis added).
Obstructing another’s nose or mouth in a manner that impedes
normal breathing or blood circulation—another way of
describing suffocation—is certainly capable of causing pain or
injury. See Ind. Code § 35-31.5-2-29 (defining “bodily injury” to
include “physical pain”).
Even the “smothering” of another’s face with a blanket in
Smith surely required the use of physical force, as defined in
Johnson, to cause someone to have difficulty breathing. Unsur-
prisingly, other circuits that have dealt with nearly identical
state statutes for strangulation have found that they require
violent force capable of causing physical injury or pain. See,
e.g., United States v. Parrow, 844 F.3d 801, 803 (8th Cir. 2016)
(“Knowingly strangulating another is categorically capable of
causing physical pain or injury to another person because it
requires proof that the victim's breathing or blood circulation
was impaired by the defendant.”); United States v. Howell, 838
F.3d 489, 502 (5th Cir. 2016) (“It is difficult to conceive of how
No. 17-1254 13
applying pressure to either a person's throat or neck in a
manner that resulted in ‘impeding the normal breathing or
circulation’ could not involve the use of physical force.”).
Since Indiana’s crime of strangulation “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” it is a “crime of violence” for
purposes of the Sentencing Guidelines, and the district court
did not err in setting Mancillas’ base offense level at 20
pursuant to U.S.S.G. § 2K2.1(a)(4)(A).
III. CONCLUSION
For the foregoing reasons, we reject Mancillas’ argument
that Indiana’s strangulation offense is not a crime of violence
under the Sentencing Guidelines. The district court applied the
correct base offense level under U.S.S.G. § 2K2.1(a)(4)(A). In
light of the Faretta violation, however, we VACATE the
sentence and REMAND for further proceedings consistent
with this opinion.