United States v. Joseph Grin ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                       No. 99-4226
    JOSEPH TITO GRIN, a/k/a Jo Jo,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Durham.
    James A. Beaty, Jr., District Judge.
    (CR-98-257)
    Submitted: October 14, 1999
    Decided: November 19, 1999
    Before TRAXLER and KING, Circuit Judges, and
    BUTZNER, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed in part, vacated in part, and remanded by unpublished per
    curiam opinion.
    _________________________________________________________________
    COUNSEL
    Jeffrey S. Lisson, Winston-Salem, North Carolina, for Appellant.
    Walter C. Holton, Jr., United States Attorney, Steven H. Levin, Assis-
    tant United States Attorney, Greensboro, North Carolina, for Appel-
    lee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Joseph Tito Grin was convicted by a jury of conspiracy to possess
    with intent to distribute and to distribute cocaine base (crack), see 
    21 U.S.C. § 846
     (1994), and was sentenced to a term of 324 months
    imprisonment. Grin appeals his conviction on the ground that the evi-
    dence was insufficient to prove his participation in the conspiracy
    charged in the indictment. He also appeals his sentence, alleging that
    the district court abused its discretion in denying him a continuance
    of sentencing and erred in determining the amount of crack attribut-
    able to him for sentencing purposes. See U.S. Sentencing Guidelines
    Manual § 2D1.1 (1998). He further claims that he was denied his
    Sixth Amendment right to counsel because the district court denied
    his attorney's motion to withdraw at the sentencing hearing and did
    not inform him that he could represent himself. We affirm the convic-
    tion but vacate the sentence and remand for resentencing for reasons
    explained below.
    A conviction "must be sustained if there is substantial evidence,
    taking the view most favorable to the government, to support it."
    Glasser v. United States, 
    315 U.S. 60
    , 80 (1942). To prove a conspir-
    acy to possess crack with intent to distribute, the government must
    prove that such an agreement existed, that the defendant knew of the
    conspiracy, and that the defendant knowingly and voluntarily joined
    the conspiracy. See United States v. Burgos, 
    94 F.3d 849
    , 857 (4th
    Cir. 1996) (en banc).
    The testimony of the government's witnesses at Grin's trial estab-
    lished the existence of a conspiracy among a group of crack distribu-
    tors known as "the Florida Boys" and the people they used to sell
    crack for them in North Carolina, as well as Grin's knowledge of and
    participation in the conspiracy. Grin argues that the government's
    proof fails because there was no evidence that he participated in the
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    conspiracy before July 1996 or after April 1997, when he was
    arrested. However, the evidence of his participation between those
    dates was sufficient to establish his guilt. See Burgos, 
    94 F.3d at 858
    ("`[O]ne may be a member of a conspiracy without . . . taking part
    in the full range of its activities or over the whole period of its exis-
    tence.'") (quoting United States v. Banks, 
    10 F.3d 1044
    , 1054 (4th
    Cir. 1993)). No variance occurred, as Grin contends.
    The district court's denial of a motion to replace appointed counsel
    is reviewed for abuse of discretion. See United States v. Mullen, 
    32 F.3d 891
    , 895 (4th Cir. 1994). A defendant who wishes to waive his
    right to counsel and represent himself, must invoke his right to self-
    representation by means of a clear and unequivocal statement. See
    Fields v. Murray, 
    49 F.3d 1024
    , 1029 (4th Cir. 1995).
    Mullen sets out three factors the appeals court should consider in
    determining whether the district court abused its discretion in denying
    a motion to substitute counsel: the timeliness of the motion for new
    counsel; the adequacy of the district court's inquiry into the defen-
    dant's complaint against his attorney; and whether the attorney-client
    conflict was so great that communication had completely broken
    down and prevented an adequate defense. See Mullen, 
    32 F.3d at 895
    .
    Grin's request for new counsel came on the day he was sentenced.
    The district court gave Grin an opportunity to describe his reasons for
    wishing to dispense with his attorney, which revealed that Grin was
    somewhat dissatisfied with his attorney's performance but primarily
    unhappy with his lack of receptiveness to outside assistance. On these
    facts, we cannot say that the district court abused its discretion in
    denying the attorney's motion to withdraw.
    Grin did not invoke his right to represent himself, but he asserts
    that the district court should have advised him that he had such a
    right, so that he could have invoked it, and that the failure to so advise
    him requires resentencing. However, we cannot find that the district
    court erred in not advising Grin that he could represent himself. Invo-
    cation of the right to self-representation involves a waiver of the right
    to counsel, which is the more favored right. See Fields, 
    49 F.3d at 1028
    . Moreover, once a defendant proceeds to trial or through the
    guilt phase, his right to proceed pro se is not absolute, but is within
    3
    the discretion of the court. See Bassett v. Thompson, 
    915 F.2d 932
    ,
    941-42 (4th Cir. 1990).
    Next, we find that the district court abused its discretion in denying
    defense counsel's motion for a continuance of sentencing. See United
    States v. Hoyte, 
    51 F.3d 1239
    , 1245 (4th Cir. 1995) (providing stan-
    dard of review). Rule 32(b)(6)(A) of the Federal Rules of Criminal
    Procedure provides that the presentence report must be disclosed not
    later than thirty-five days before sentencing. Grin's attorney received
    the report a few days late. At the sentencing hearing, defense counsel
    requested a continuance. The district court denied the motion.
    Because the Rule mandates disclosure a full thirty-five days before
    sentencing, we vacate Grin's sentence and remand for resentencing.
    United States v. Miller, 
    849 F.2d 896
     (4th Cir. 1988), is explicit. "[A]
    bright-line approach is mandated by the clear language of Rule 32."
    
    Id. at 897
    . In this way, as Justice Frankfurter explained in Green v.
    United States, 
    365 U.S. 301
    , 305 (1961), speaking of Rule 32 (allocu-
    tion procedures), a trial court will "avoid litigation arising out of
    ambiguous records."*
    For the reasons discussed, we affirm the conviction, but vacate the
    sentence and remand for resentencing. We dispense with oral argu-
    ment because the facts and legal contentions are adequately presented
    in the materials before the court and argument would not aid the deci-
    sional process.
    AFFIRMED IN PART, VACATED IN PART, AND REMANDED
    _________________________________________________________________
    *This is not to say, however, that there can be no waiver of the thirty-
    five day period prior to sentencing. There may be circumstances where
    a waiver is expressed or may be inferred from the record.
    4