United States v. Norman Kerr , 446 F. App'x 558 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4557
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN ALAN KERR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:09-cr-00290-NCT-1)
Submitted: September 13, 2011 Decided: September 15, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Robert A. J. Lang, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norman Alan Kerr was convicted after a jury trial of
one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006), and was
sentenced to 268 months’ imprisonment. On appeal, Kerr
challenges his sentence, arguing that the district court erred
in denying his March 9, 2010 motion for substitution of counsel
and in sentencing him as an armed career criminal. We vacate
and remand for resentencing.
Although a criminal defendant has a right to counsel
of his own choosing, that right is “not absolute” but is limited
so as not to “deprive courts of the exercise of their inherent
power to control the administration of justice.” United States
v. Gallop, 838 F.2d 105, 107-08 (4th Cir. 1988). Thus, a
defendant’s right to substitute counsel after the court’s
initial appointment is restricted, and the defendant must show
good cause as to why he should receive substitute counsel.
Id. at 108. We review for abuse of discretion the district
court’s ruling on a motion for substitute counsel. United
States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004). When
analyzing the district court's decision on a motion for
substitution, we consider three factors: “(1) the timeliness of
[the motion]; (2) the adequacy of the court's inquiry into [the
defendant’s] complaint about counsel; and (3) whether [the
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defendant] and his counsel experienced a total lack of
communication preventing an adequate defense.” Id. (internal
quotation marks omitted).
Application of these factors convinces us that the
district court did not abuse its discretion in denying Kerr’s
motion for substitution. The motion was timely filed, as it was
made over a month before the then-scheduled sentencing hearing.
See United States v. Mullen, 32 F.3d 891, 896 (4th Cir. 1994)
(finding motion for substitution filed twenty-seven days before
trial timely). Although the district court inquired into the
basis for Kerr’s motion, we conclude the inquiry was not as
thorough as it should have been because the court never asked
defense counsel whether he believed communications with his
client had broken down irretrievably or whether he thought he
could continue to represent Kerr adequately.
However, we conclude that Kerr has not shown that his
attorney was unable to represent him adequately at sentencing.
Kerr claims in conclusory fashion that his inability to
communicate with counsel effectively prevented communication
concerning his history and characteristics and hampered the
potential for gathering evidence and presenting witnesses at
sentencing. Further, although Kerr claims that counsel objected
to the presentence report’s determination that Kerr was an armed
career criminal without the benefit of a “full and complete”
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consultation with Kerr, he fails to explain what more counsel
should have done or how his interests at sentencing would have
been served by a more “full” or “complete” consultation.
Moreover, the record discloses that counsel challenged Kerr’s
designation as an armed career criminal assiduously, if
unsuccessfully, and argued for a sentence below the Guidelines
range recommended in the presentence report. Kerr has not
demonstrated that his counsel was unable to represent him
adequately at sentencing. We therefore conclude that the
district court did not abuse its discretion in denying Kerr’s
motion for substitution of counsel.
We turn now to Kerr’s challenge to his designation as
an armed career criminal. A defendant is properly designated an
armed career criminal if he is subject to an enhanced sentence
under the provisions of 18 U.S.C. § 924(e) (2006).
U.S. Sentencing Guidelines Manual § 4B1.4(a) (2009). The
enhanced sentence under 18 U.S.C. § 924(e) applies to a
defendant who violates 18 U.S.C. § 922(g) and has “three
previous convictions . . . for a violent felony or a serious
drug offense, or both.” 18 U.S.C. § 924(e)(1). To qualify as a
“violent felony,” the conviction must be “punishable by
imprisonment for a term exceeding one year.” Id.§ 924(e)(2)(B).
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Kerr argues that none of the prior convictions on
which his armed career criminal classification was based—his
North Carolina state convictions for breaking and entering—was
punishable by imprisonment for a term exceeding one year.
See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth
minimum and maximum sentences applicable under North Carolina’s
sentencing scheme). When Kerr raised this argument in the
district court, it was foreclosed by our decision in United
States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
Subsequently, however, we overruled Harp with our en banc
decision in United States v. Simmons, ___ F.3d ___, No. 08–4475,
2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), in which the
defendant raised a similar argument under the Controlled
Substances Act. In light of Simmons, we vacate the district
court’s judgment and remand to the district court for
resentencing. *
*
Although the parties agree that Kerr’s North Carolina
state convictions for breaking and entering are Class H
offenses, the record on appeal does not disclose Kerr’s prior
record level or whether the state sentencing court made findings
of mitigating or aggravating circumstances. See Simmons, 2011
WL 3607266, at *5 (stating that, for prior North Carolina
convictions where no aggravating or mitigating circumstances are
present, test is whether defendant could receive more than one
year in prison based upon his offense class and prior record
level). We express no opinion as to whether Kerr’s prior state
convictions qualify as armed career criminal predicates and
leave this determination to the district court on remand.
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We deny Kerr’s motion to file a pro se supplemental
brief and dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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