11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2011

(Submitted: April 18, 2012 Decided: May 16, 2014 Amended: June 18, 2014)

Docket Nos. 11-5462-cr(L), 10-3393-cr(con) ________________________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

- v. -

DESMOND KERR,

Defendant-Appellant. ________________________________________________________________________

Before: KEARSE, PARKER, and HALL, Circuit Judges.

Appeal from the August 6, 2010 judgment of the United States District Court for the Northern District of New York (Glenn T. Suddaby, District Judge), convicting Appellant, following his mid-trial guilty plea, of possession with intent to distribute methylenedioxymethamphetamine and sentencing him principally to 121 months‟ incarceration. We affirm for the reasons set forth below.

AFFIRMED.

KATHERINE ALFIERI, Law Offices of Katherine Alfieri, New York, NY, for Defendant-Appellant Desmond Kerr.

RAJIT S. DOSANJH, Assistant United States Attorney (Ransom P. Reynolds, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee United States of America.

1 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

HALL, Circuit Judge:

Defendant-Appellant Desmond Kerr is a Canadian citizen who was arrested by

United States customs authorities after they searched his vehicle at the U.S.-Canadian border

and discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine

(“MDMA”), a Schedule I controlled substance. Kerr was charged with one count of

knowingly and intentionally possessing MDMA with intent to distribute, in violation of

(a)(1) and (b)(1)(C). A turbulent pretrial period ensued, during which Kerr

ceased communicating with and then effectively fired his first two appointed attorneys,

insisted on pressing several ill-advised theories of defense to the exclusion of all others, and

underwent a court-ordered competency examination that ultimately found him competent to

stand trial. Kerr elected to represent himself at trial but, with the assistance of a newly

appointed attorney, pled guilty midway through. After entering his plea, Kerr resumed his

prior behavior: he again refused to communicate with counsel and filed numerous pro se

motions in which he sought to withdraw his plea, press his theories of defense, and obtain

the assistance of new counsel. At sentencing, Kerr‟s attorney expressed concern about

Kerr‟s mental stability and represented that Kerr had been unable to help him prepare for

sentencing; the district court also commented on Kerr‟s belligerent and counterproductive

behavior. Ultimately, the district court sentenced him principally to 121 months‟

imprisonment, rejecting his several sentencing arguments.

Through new counsel, Kerr argues on appeal that his “erratic” and “irrational”

behavior following the entry of his plea required the district court to hold a competency

2 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

hearing before imposing sentence and that he was deprived of his Sixth Amendment right to

counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw

his plea. He also challenges several aspects of the sentence imposed. In a separate pro se

brief, Kerr contends that the district court erroneously denied his pro se motion to withdraw

his plea and challenges several pre-plea aspects of his prosecution and trial. We affirm.

BACKGROUND

In February 2009, Customs and Border Protection officers searched Kerr‟s vehicle as

he attempted to enter the United States from Canada at the Alexandria Bay, New York port

of entry. In the course of the search, the officers discovered approximately seven thousand

pills containing MDMA. The officers found the pills in two locations: four thousand were

concealed in black packages between the vehicle‟s front seats, while the remaining three

thousand were stowed within the vehicle‟s rear interior paneling. Together, the seven

thousand pills weighed 2,068 grams. Kerr was arrested and charged with one count of

possession with attempt to distribute MDMA.

I. Pretrial Proceedings

Between his February 2009 arraignment and his April 2010 trial, Kerr cycled through

a succession of attorneys and inundated the district court with numerous pro se requests for

its assistance with his several theories of defense. First, in September 2009, Kerr moved to

replace the Federal Public Defender initially assigned to his case. The district court granted

the motion and, after Kerr expressed dissatisfaction with a second attorney, appointed

Jeffery DeRoberts as new counsel. Several weeks later, DeRoberts informed the court that

Kerr was unhappy with his representation and had requested that the court appoint a

3 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

different attorney known to Kerr. The district court denied this request, explaining that

Kerr was not entitled to choose assigned counsel. At a subsequent conference and

suppression hearing held in October 2009, Kerr alleged that the government had improperly

destroyed a number of the recovered MDMA pills, that the assigned Assistant United States

Attorney (“AUSA”) had committed perjury, and that his various attorneys had refused to file

motions addressing these issues.1 When Kerr continued to interject and press these pro se

arguments, the district court halted the proceedings to inquire whether he understood the

charge against him, the potential penalties he faced, and the importance of his attorney.

Kerr confirmed that he was charged with possession with intent to distribute, stated that he

understood the penalties, and acknowledged that his lawyer had knowledge of the law and

court procedure he did not possess.

On December 9, 2009, some five days before the scheduled trial date, the district

court held a final pretrial conference during which Kerr represented that DeRoberts was

“ineffective” and in “dereliction of duty.” Kerr repeatedly stated that he did not want

DeRoberts to speak on his behalf or appear at trial, and that he wished to represent himself.

The court acknowledged Kerr‟s right to self-representation and stated that DeRoberts would

1 In December 2009, Kerr filed a pro se notice of appeal from the district court‟s denial of his suppression motion and his motion to dismiss the indictment due to the government‟s destruction of evidence. The resulting interlocutory appeal remained pending in this Court without substantive filings by either party until October 2011, when the government moved to dismiss the appeal as taken from a non-final order. By that time, however, the interlocutory appeal had been designated the lead case and consolidated with Kerr‟s August 2010 appeal from his final judgment of conviction, which by then was fully-briefed. In February 2012, we denied the government‟s motion to dismiss, but construed Kerr‟s arguments made in the interlocutory appeal as relating to his 2010 appeal from the final judgment.

4 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

be available at trial as standby counsel. Kerr objected to this proposal, informing the court

that he wanted to call DeRoberts as a defense witness to testify about the government‟s

“perjury” as to the existence of certain surveillance videotapes of the border crossing. Kerr

also requested that the court subpoena several other witnesses, including the then-Chief

Judge of the Northern District of New York and the then-interim United States Attorney for

the Northern District of New York. Kerr refused to explain his reasons for subpoenaing

these last witnesses, stating only that the court would “find out” on the date of trial.

Expressing concern with Kerr‟s “wilder and wilder” requests and “self-destructive”

decisions, the district court adjourned the trial and ordered him, pursuant to

(a), to undergo a mental competency examination. After examining Kerr,

psychologists at the Federal Medical Center (“FMC”) found him competent to stand trial

and presented those results in a forensic medical report dated March 19, 2010. The report

described Kerr as “an obstinate, strong-willed, and opinionated individual” whose

dissatisfaction with his attorneys stemmed not from “psychotic symptoms,” but rather from

“his belief that his attorneys ha[d] not done sufficient work to mount an adequate defense.”

The report also explained that Kerr‟s defensive strategy of accusing the AUSA of perjury,

while possibly imprudent, was not evidence of incompetence. In sum, the report concluded

that Kerr was able to assist his attorney in preparing a defense if he so chose, and that there

was no “objective evidence” that he suffered from “a mental disorder which would impair

his ability to understand the nature and consequences of the court proceedings against him.”

The district court reconvened on March 31, 2010. On that date, Kerr did not permit

DeRoberts to sit with him at counsel table. He adamantly expressed his desire to represent

5 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

himself with the assistance only of standby counsel, insisting that the results of the

competency evaluation proved his ability to do so. The court granted DeRoberts‟s resulting

motion to withdraw on the ground that there had been a complete breakdown in attorney-

client communication. In his stead, the court appointed Robert Wells as standby counsel

and directed Kerr to consult with him. At the close of the conference, the court scheduled

trial to begin on April 14, 2010 and explained to Kerr that it would ask him a series of

questions at the beginning of trial to ensure he fully understood the implications of self-

representation.

II. Trial and Guilty Plea

On the scheduled trial date, Kerr appeared with Wells as standby counsel. Before

jury selection, the district court stated that it had previously “advised [Kerr] of the

disadvantages of representing [himself]” and inquired of Kerr whether that remained his

intention. Kerr confirmed that it was. The court cautioned him that self-representation was

“very difficult” and that, despite his pro se status and lack of legal training, he was required to

follow the court‟s instructions and comply with the rules of evidence and procedure. When

Kerr renewed his request to subpoena three witnesses—his former attorney, the former

interim United States Attorney, and the Chief Judge of the Northern District—the court

stated that it would issue the subpoenas only if Kerr explained how their testimony was

relevant to the pending criminal charge. Kerr demurred, claiming that he should not be

required to disclose his theory of defense. Again, the court flagged Kerr‟s lack of legal

training, explaining, inter alia, that any testimony of these witnesses would “certainly” be

hearsay and the fact that his former attorney represented Kerr in the matter did not make

6 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

the attorney “a witness with any relevant testimony to offer in this case.” The court later

urged Kerr to consult with Wells concerning issues of jury selection.

On April 14, the case proceeded to trial at which Kerr selected a jury in consultation

with Wells; gave an opening statement premised on his theories that the AUSA committed

perjury, the government destroyed evidence, and he was prevented from calling his chosen

witnesses; extensively cross-examined government witnesses; and made relevant objections.

Upon the close of the government‟s evidence on April 16, however, Kerr informed the court

that he intended to plead guilty to the charge. The following exchange took place:

THE COURT: Now, have you agreed to allow Mr. Wells to represent you in this matter, for this -- THE DEFENDANT: Yes, your Honor. THE COURT: -- in this capacity? Because there are questions that I‟m going to need to ask him and he needs to advise you and hopefully he‟s talked to you about the Sentencing Guidelines . . . . THE DEFENDANT: Yes.

Appellant App‟x at 96. Following this colloquy, the district court informed Kerr that it was

“going to at this point accept the fact that Mr. Wells is your attorney.”

The court conducted a change of plea hearing that same day.2 Kerr testified that he

was not under the care of a doctor or psychiatrist and that his ability to understand the

proceeding was not impaired. Attorney Wells also stated that he was satisfied that Kerr‟s

plea was given freely and voluntarily. Based upon these representations and Kerr‟s other

responses during its Rule 11 inquiry, the court determined that he was “competent and

2 Although Kerr did not plead guilty pursuant to a formal plea agreement, he agreed during the change of plea hearing to withdraw his December 2009 interlocutory appeal from the denial of his suppression motion and motion to dismiss.

7 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

capable of entering an informed plea.” As to the factual basis for the plea, the government

explained that its proof at trial had shown that the Customs and Border Protection officers

discovered pills containing MDMA in two locations of Kerr‟s vehicle and that, in total, the

recovered pills weighed 2,068 grams. Kerr confirmed this assessment of the evidence,

further explaining that he had entered into an agreement with an unidentified individual

whereby the individual would place something in his parked vehicle and then, in exchange

for $5,000, Kerr would drive the vehicle from Canada to New York. After accepting the

plea, the district court told Kerr that the Probation Department would interview him in

connection with his presentence report and that “Wells can be there with you if you like,

that‟s up to you and him.”

III. Post-Plea Proceedings & Sentencing

Several days after pleading guilty, Kerr filed a pro se motion to withdraw his plea—

the first in a succession of pro se motions he filed in the post-plea, pre-sentencing phase of

the case. Kerr asserted in the motion that he wanted to “take back” his plea to permit the

“the jury [to] find [him] guilty or not guilty.” The district court denied his request on April

26, concluding that Kerr‟s plea allocution satisfied the requirements of Federal Rule of

Criminal Procedure 11(b), he had not shown a “fair and just” reason for withdrawing the

plea, and he had not accounted for the prejudice that would inure to the government and the

court if his request were granted.

8 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

On May 14, Kerr requested the appointment of counsel to assist him with, inter alia, a

motion to withdraw his guilty plea.3 The following day, he again moved to withdraw his

plea, asserting, without providing specifics, that the AUSA and government witnesses had

perjured themselves, he had received ineffective assistance of counsel, there were “valid

grounds for withdrawing [his] guilty plea,” and he had a “claim of innocence.” Kerr

reiterated his request for new counsel in a June 22 letter and in a July 7 pro se motion to

dismiss the charges due to the government‟s alleged perjury and destruction of evidence. In

his June 22 letter, Kerr claimed, for the first time, that “standby counsel” provided

ineffective assistance by “instructing [him] to plea[d] guilty.” The court denied all pending

motions by order entered on July 22, ruling that both Kerr‟s request for new counsel and his

renewed motion to withdraw his plea were “unsupported by a showing of cause,” and noting

that in April it had denied Kerr‟s first motion to withdraw his guilty plea.4

While these events unfolded, the Probation Department submitted a presentence

report in which it held Kerr accountable for the entire quantity of MDMA pills found in the

vehicle. Based on a total offense level of 32 and Kerr‟s criminal history category of I, the

Probation Department calculated Kerr‟s advisory sentencing range under the United States

Sentencing Guidelines as 121 to 151 months‟ imprisonment. It also noted that Kerr had

3 Wells informed Kerr before the submission of this letter that, given his affirmations during the change of plea hearing regarding the knowing and voluntary nature of Kerr‟s plea, he was “prohibited” from assisting Kerr with the motion to withdraw the plea. Wells also urged Kerr to “return to representing [himself] pro se” so that Wells could advise him as he proceeded. 4 The court also denied Kerr‟s several pro se motions to set aside the “jury verdict” and to

vacate his conviction on various grounds.

9 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

refused to meet with the Probation officer tasked with preparing the report. In a pro se letter

sent shortly before sentencing, Kerr explained that although he had wanted to meet with the

Probation officer, he did not wish to do so with Wells present because Wells had “lied” to

him during trial.

For his part, Wells explained in a sentencing memorandum submitted on Kerr‟s

behalf that Kerr had refused to meet with him to prepare for sentencing; he also expressed

his concern with Kerr‟s “mental stability.” Wells took issue with the FMC psychologists‟

competency determination, representing that although he had no “training in mental health

diagnosis,” Kerr‟s actions over the course of the prosecution were “not that of a rational and

undisturbed mind” and he had been unable to help Wells prepare for sentencing. Wells

further advised the court that he could not ethically help Kerr with the motion to withdraw

the plea because his affirmation at the change of plea hearing that Kerr pled guilty

voluntarily created a “classic and irremediable conflict” with respect to that motion. He

therefore urged the court to appoint new counsel for purposes of that motion. Finally,

Wells argued that Kerr should be held accountable only for the four thousand MDMA pills

found between the front seats of his vehicle because there was no evidence he knew about

the pills hidden within the rear interior paneling.

The court imposed sentence on August 4, 2010. Although Wells appeared at the

hearing, he informed the court that Kerr had instructed him not to speak. In his statement

to the court, Kerr again expounded at length upon his theories that the government

improperly destroyed a number of the MDMA pills, the AUSA committed perjury, and the

court improperly deprived him of the opportunity to call his chosen witnesses at trial. The

10 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

court interjected, stating that Kerr was “hung up on . . . insignificant . . . details” irrelevant

to sentencing. It went on: “I cannot figure you out, sir, which is why I had a mental exam

done. They tell me you‟re competent and capable but you are the most belligerent individual

I have ever met in my life . . . , [and] I can‟t figure out why.” The court further asserted that

Kerr‟s refusal to accept the advice of an attorney had “made [his] situation so much worse.”

After obtaining Kerr‟s permission to speak, Wells again expressed his concerns about Kerr‟s

mental state and reiterated his disagreement with the FMC psychologists‟ competency

determination. He also argued that the court should recognize Kerr‟s minor role as a

“courier” or “drug mule.”

After hearing from the government, the court adopted the facts contained in the

presentence report and found, consistent with the calculations of the Probation Department,

that Kerr‟s Guidelines range of imprisonment was 121 to 151 months. The court sentenced

Kerr to 121 months‟ imprisonment, explaining that it found the sentence “fair, just, and

sufficient but not greater than necessary to comply with the goals of sentencing set forth in

18 U.S.C. 3553(a).” The court emphasized that, had Kerr been “more cooperative” with

counsel and the Probation Department, it may have been presented with a “fuller record”

justifying the imposition of a lesser sentence, especially given his lack of criminal history.

Once again, the court remarked that it could not understand Kerr‟s intransigent behavior.

Kerr timely appealed the court‟s August 6, 2010 judgment. Approximately one week later,

he submitted a letter reiterating that Wells was “standby counsel” only and did not speak on

his behalf.

11 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

DISCUSSION

I. Kerr’s Competency

Due process “„prohibits the criminal prosecution of a defendant who is not

competent to stand trial.‟” United States v. Quintieri,

(2d Cir. 2002)

(quoting Medina v. California,

(1992)). A defendant is not competent, and

the criminal proceeding against him may not progress, when his “mental condition is such

that he lacks the capacity to understand the nature and object of the proceedings against

him, to consult with counsel, and to assist in preparing his defense.” Drope v. Missouri,

(1975). This constitutional right is safeguarded by

, which

requires the district court, upon its own motion if necessary, to hold a competency hearing

“if there is reasonable cause to believe that the defendant may presently be suffering from a

mental disease or defect rendering him mentally incompetent to the extent that he is unable

to understand the nature and consequences of the proceedings against him or to assist

properly in his defense.”

(a); see also United States v. Zhou,

(2d Cir. 2005) (noting that the standards under due process and § 4241 are “essentially

equivalent” (citing Nicks v. United States,

(2d Cir. 1992))).

The existence of “reasonable cause” is a highly particularized assessment that “„varies

in each case.‟” Zhou,

(quoting United States v. Nichols,

(2d

Cir. 1995)). We have identified several factors upon which the district court may rely when

making the reasonable cause determination, including psychiatric reports assessing the

defendant‟s competence, see Zhou,

, and the court‟s own “observations of the

defendant‟s demeanor during the proceeding,” Quintieri,

. See also Drope, 420

12 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

U.S. at 180 (explaining that there are “no fixed or immutable signs which invariably indicate

the need for further inquiry to determine [the defendant‟s] fitness to proceed”). The right

not to be prosecuted while incompetent “spans the duration of a criminal proceeding.”

United States v. Arenburg,

(2d Cir. 2010). A district court must therefore

“„always be alert to circumstances suggesting a change that would render the accused unable to

meet the standards of competence to stand trial,‟”

at 168-69 (quoting Drope,

) (emphasis in original), an obligation that “takes on increased significance where, as here,

a criminal defendant elects to proceed pro se,”

. We review a district court‟s decision

not to order a competency hearing for abuse of discretion.

Here, the district court acted well within its discretion when it declined to order a

competency hearing before accepting Kerr‟s April 16, 2010 guilty plea. Although the court

was obviously troubled by Kerr‟s pretrial behavior, it was entitled to rely on the March 19,

2010 forensic report that found him competent to understand the proceedings and capable

of working with his attorney if he so chose. Zhou,

. In addition, the district

court had the benefit of observing Kerr during the March 31 pretrial conference and the

April 14-16 trial. The transcripts of those proceedings show that although he was unfamiliar

with the law and court procedure, Kerr vocally advocated on his own behalf, made relevant

objections during the government‟s direct examination of witnesses, and consulted with

standby counsel when necessary. During the change-of-plea hearing, Kerr also responded

cogently to the district court‟s inquiries and displayed his understanding of the charge. In

short, we discern no unusual circumstances that should have given the district court pause

before accepting Kerr‟s plea. See Quintieri,

; see also Wojtowicz v. United States,

13 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

(2d Cir. 1977) (where a defendant has been found competent following a

court-ordered evaluation, a district court generally is “not required to hold a competency

hearing before accepting a plea”); Saddler v. United States,

(2d Cir. 1976)

(district court under no obligation to question a defendant‟s competency when his “answers

to the court‟s Rule 11 inquiries, his demeanor and his testimony . . . all appeared to be

rational and coherent”).5

Having concluded that the district court was not required to hold a competency

hearing before Kerr‟s April 16 plea, we must now assess whether the record reflects any

“circumstances suggesting a change that would render [Kerr] unable to meet the standards

of competence” by the time of his August 4 sentencing. Arenburg,

(internal quotation marks omitted). In his counseled brief, Kerr contends there were two

such circumstances: his “erratic” and “irrational” post-plea behavior, and Wells‟s

representations that the FMC psychologists “missed something” and that Kerr was unable to

help him prepare for sentencing.

We first hold that, upon consideration of the whole record, Kerr‟s post-plea behavior

was not so “erratic” that it should have given the district court reason to doubt his

competency. Indeed, the record reflects that Kerr‟s obstinate, belligerent, and obsessive

behavior remained a constant throughout the entire proceedings. The district court ordered

the pretrial competency evaluation after it became increasingly disturbed by Kerr‟s obsession

with his pro se theories of defense to the exclusion of other issues, his refusal to cooperate or

5 Given this conclusion, we reject any suggestion in counsel‟s brief that Kerr was “likely” incompetent at the time of his trial and plea. See Appellant Br. at 45 & n.12.

14 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

communicate with his attorneys, and his insistence on subpoenaing irrelevant witnesses.

This is precisely the same behavior Kerr flags as “erratic” in the post-plea phase of the case,

when he cut off communication with Wells and repeatedly attempted to press his theories of

defense despite having pled guilty. Although the “obligation to be vigilant for reasonable

cause [to question the defendant‟s competency] . . . does not disappear upon a pretrial

finding that the defendant is competent to stand trial,” Arenburg,

(internal

quotation marks omitted), under the circumstances of this case we will not fault the district

court—which observed Kerr over the entirety of the proceedings below—for not twice

questioning the same behavior. Kerr‟s situation is therefore distinguishable from those cases

in which we have found it necessary for courts to revisit their initial reasonable cause

determinations. See

(district court erred by suggesting that a magistrate judge‟s

pretrial competency determination was dispositive of the defendant‟s competence at trial and

was required to revisit the reasonable cause determination where, at trial, the assigned AUSA

questioned the defendant‟s mental stability and the defendant, who had a history of mental

illness, made numerous incoherent statements); Wojtowicz,

(remanding to

the district court for an evidentiary hearing where defendant, who was assessed as competent

before the entry of his plea, submitted a post-judgment affirmation stating that he had

attempted to commit suicide on the morning of sentencing).

Kerr‟s obsession with his defensive theories, his distrust of his attorneys, and his

belligerent attitude were also not so bizarre as to require the district court to question his

competency for a second time. Compare Arenburg,

(reasonable cause to

reconsider defendant‟s competency where “he made repeated references to „radio waves,‟

15 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

„microwave channels,‟ and a conspiracy involving MGM Studios and the government with

the object of publicly broadcasting his thoughts”), and United States v. Auen,

(2d Cir. 1988) (finding reasonable cause for a competency hearing and

remanding for the district court to conduct such a hearing where defendant, inter alia,

compared the agent investigating his case with a cat he had put down, complained that he

had been the victim of “psychopolitical terrorism by the Internal Revenue Service,” and

threatened the government‟s attorneys), with Zhou,

(no reasonable cause

to question defendant‟s competency where the district court had observed the defendant

“over a substantial period of time” and the defendant was found competent in a medical

report that described him as “defensive, stubborn, and evasive regarding the details of his

case”). Disputes between criminal defendants and their attorneys are not at all uncommon,

see United States v. White,

(2d Cir. 1999), and many defendants “assert that

their rights have been denied at every turn,” “demonstrate that they do not understand how

the legal system handles witnesses,” and “forget or choose to ignore what judges said

earlier,” Timberlake v. Davis,

(7th Cir. 2005). In sum, although Kerr

“demonstrated that he can be rude, unreasonable, and myopic in his approach to this case,

that is not the same as incompetence and is not the type of conduct that implies the kind of

mental shortcomings required to oblige a district court to sua sponte order a competency

examination.” United States v. Alden,

(7th Cir. 2008).

Against a different backdrop, we may well have greater cause for alarm when

confronted with such statements by defense counsel as Wells‟s that his client was acting

irrationally and could not assist with preparing a defense. Cf. United States v. Kirsh,

11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

1062, 1071 (2d Cir. 1995) (noting that defense counsel‟s failure to indicate the defendant

could not assist in her defense or understand proceedings was “substantial evidence” of

competency). Here, however, the district court had substantially longer experience with

Kerr over the course of the proceedings than did Wells, who did not become standby

counsel until immediately before trial. In addition, Wells freely acknowledged that, in

making these representations, he had “no training in mental health diagnosis.” Appellant

App‟x at 235. Finally, it is apparent that Wells‟s declaration that Kerr could not help him

prepare for sentencing was based on Kerr‟s refusal to meet with him, which, as we have

noted, was consistent with Kerr‟s pretrial behavior toward his former attorneys. Given all

of the above, we hold that the district court did not abuse its discretion by not revisiting the

issue of Kerr‟s competency before imposing sentence.

II. Sixth Amendment Right to Counsel during Post-Plea Proceedings

As an initial matter, although Kerr suggests that it “appears . . . [he] never entered a

constitutionally sufficient waiver of his right to counsel” because the district court

“neglected to engage in the appropriate waiver of counsel inquiry” before allowing him to

proceed pro se, he expressly forgoes a separate Sixth Amendment claim premised on this

supposed deficiency. See Appellant Br. at 24 & n.10. We therefore decline to address the

propriety of the district court‟s pretrial ruling permitting Kerr to represent himself. See

Norton v. Sam’s Club,

(2d Cir. 1998) (“Issues not sufficiently argued in the

17 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

briefs are considered waived and normally will not be addressed on appeal.”); see also United

States v. Greer,

(2d Cir. 2002) (same).6

With respect to the Sixth Amendment arguments he does raise, Kerr first asserts in

his counseled brief that it is unclear from the record whether, at the change of plea hearing,

the district court appointed Wells as counsel for the remainder of the proceedings, or only

for the entry of the plea. Appellant Br. 25. Given this opacity, Kerr advances two

alternative arguments regarding right to counsel. First, he contends that if the district court

elevated Wells from standby counsel to full counsel only for purposes of the plea, then it

deprived him of his right to counsel at a critical stage of the proceeding when it denied his

request for counsel‟s assistance with his motion to withdraw the plea. Appellant Br. at 25-

6 Even if were we to reach this issue, we likely would conclude that Kerr knowingly and intelligently waived his right to counsel before trial. See Faretta v. California,

(1975) (holding that a defendant who seeks to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open” (internal quotation marks omitted)). The record reflects that over the course of the pretrial proceedings, during which he repeatedly and emphatically demanded to represent himself, Kerr: (1) confirmed that he understood the nature of the charges and the potential penalties he faced, see Special App‟x at 28; and (2) acknowledged the importance of having the assistance of an attorney, see id. at 55-56. In addition, the district court warned Kerr immediately before trial about the dangers and difficulties of proceeding pro se. See Appellant App‟x at 80, 84-86. Thus, while the district court‟s Faretta colloquy in this case was not ideal, it was not so deficient as to make Kerr‟s waiver of his Sixth Amendment right unknowing. See, e.g., Torres v. United States,

(2d Cir. 1998) (explaining that “there is no talismanic procedure to determine a valid waiver” and that “[w]e need not analyze the district court‟s every word, so long as the record as a whole demonstrates that the defendant knowingly and intelligently waived her right to counsel”); United States v. Hurtado,

(2d Cir. 1995) (finding a Faretta examination “adequate” where the district court warned the defendant “of the specific perils of representing himself and the advantages of having legal representation,” the defendant was “clearly aware of the penalties he faced if convicted,” and the defendant “clearly stated that he would prefer to proceed pro se”).

18 11-5462-cr(L); 10-3393-cr(con) United States v.

. Alternatively, he argues that if the court upped Wells to full counsel for the remainder of

the proceeding, then it should have appointed new counsel to assist Kerr with his motion to

withdraw his plea because of Wells‟s “actual conflict” with respect to that motion. See id. at

28-41.

We note that the district court did not state explicitly that Wells returned to standby

status following the entry of the plea. Despite any possible confusion, several reasons

support our conclusion that the district court elevated Wells to full counsel only for

purposes of the plea, and that Kerr thereafter resumed his self-representation.

Although the district court told Kerr at the plea hearing that it was “going to at this

point accept the fact that Mr. Wells is your attorney,” Appellant App‟x at 98, it implied after

accepting the plea that participation in an on-going relationship was optional, informing

Kerr that the Probation Department would interview him and that “Wells can be there if

you like, that‟s up to you and him,” id. at 117 (emphasis added). The district court‟s

observation that Wells was entitled to opt out of accompanying Kerr for such an interview,

rather than having an obligation to attend, was a clear indication that the court viewed Wells,

subsequent to the entry of Kerr‟s guilty plea, as having completed his service as counsel and

returned to the status of standby counsel. See, e.g., Gonzalez v. United States,

(2d Cir. 2013) (noting, among the ways in which Gonzales‟s attorney‟s “performance

was deficient with regard to sentencing,” that counsel “did not accompany Gonzalez when

Gonzalez was interviewed by the Probation Department”). In addition, there is no

indication that Kerr waived his right to self-representation during the post-plea period

because during that time he made numerous pro se filings, refused to allow Wells to speak on

19 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

his behalf at sentencing, and submitted a post-judgment letter reiterating that Wells was

“standby counsel.” Cf. United States v. Barnes,

(2d Cir. 2012) (noting that

“even after the right to proceed pro se has been clearly and unequivocally asserted, the right

may be waived through conduct indicating that one is vacillating on the issue or has

abandoned one‟s request altogether” (internal quotation marks omitted)). The district court

also made clear its view that Kerr continued to represent himself by accepting and ruling on

his numerous pro se submissions. Tellingly, some of these filings requested the assignment of

new counsel, which the court denied without stating or otherwise indicating that Wells

remained Kerr‟s attorney. Finally, although Wells submitted a sentencing memorandum and

appeared with Kerr at sentencing, it is routine, and certainly not unusual, for standby counsel

to perform such essential tasks. See, e.g., United States v. Schmidt,

(2d Cir.

1997) (standby counsel not elevated to full counsel when he “examined and cross-examined

witness, and gave the defense summation”). We therefore conclude that Kerr continued

representing himself after the entry of his plea and address only the first of Kerr‟s alternative

Sixth Amendment arguments—that the district court deprived him of his right to counsel

when it did not appoint an attorney to assist him with his second motion to withdraw his

plea.

This inquiry is complicated by the fact that Kerr‟s post-plea request for counsel came

after he waived his right to counsel before trial. While it is undisputed that the Sixth

Amendment protects a criminal defendant‟s right to the assistance of counsel “„at all critical

stages of the criminal process,‟” Marshall v. Rodgers, __ U.S. __,

(2013)

(quoting Iowa v. Tovar,

(2004)), it is also well settled “that a defendant . . .

20 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

has the right to „proceed without counsel when he voluntarily and intelligently elects to do

so,‟” Marshall,

(quoting Faretta,

); see also Forbes v. United

States,

(2d Cir. 2009) (“A motion to withdraw a guilty plea is a critical stage

of a criminal proceeding . . . .”); see generally United States v. Davis,

(2d Cir.

2001) (a defendant who wishes to withdraw his plea of guilty “may waive his . . . right to

counsel . . . and proceed pro se”). To resolve the tension that can exist between these two

principles when a defendant who elected to proceed pro se later demands an attorney, there is

broad consensus that, once waived, the right to counsel is no longer unqualified. See United

States v. Thompson,

(9th Cir. 2009); United States v. Leveto,

(3d Cir. 2008); United States v. Proctor,

, 403 & n.8 (1st Cir. 1999); United

States v. Reddeck,

(10th Cir. 1994); United States v. Taylor,

(5th Cir. 1991); United States v. West,

(4th Cir. 1989); United States v.

Solina,

(7th Cir. 1984); see also United States v. Brasch,

(2d Cir. 1999) (table) (unpublished decision).

Although we have not definitively spoken on this precise issue, we have held that a

defendant‟s right to represent himself in the first place is not absolute. See Barnes,

. Among other qualifications placed on the exercise of that right, we have required

that the request to proceed pro se be “„unambiguous and unequivocal‟” so as to “„inhibit[] any

deliberate plot to manipulate the court by alternatively requesting, then waiving counsel.‟”

at 271 (quoting Williams v. Bartlett,

(2d Cir. 1994)). In addition, the

request may be denied if the district court finds it to be “obstructionist” or “manipulative or

abusive in some other way.”

(internal quotation marks omitted). These concerns are

21 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

equally applicable to a situation in which a defendant, having invoked his right to proceed pro

se, later seeks the reappointment of counsel. Accordingly, we hold, in agreement with our

sister Circuits that have considered the issue, that once a defendant voluntarily and

intelligently waives his right to counsel and elects to proceed pro se, the decision whether to

grant or deny his “post-waiver request for counsel is well within the discretion of the district

court.” Leveto,

(citing cases).

Given the critical role that access to professional legal representation plays in our

criminal justice system, a district court‟s discretion to deny post-waiver requests for counsel

is necessarily circumscribed. Thus, it is manifestly improper for a court to deny such a

request on purely punitive grounds. See Menefield v. Borg,

(9th Cir. 1989)

(“We are certainly unwilling to deny counsel because of some conception that the

defendant‟s initial decision to exercise his Faretta right and represent himself at trial is a

choice cast in stone.”); see also Taylor,

(defendant must ordinarily be allowed

to “change his mind about whether he will represent himself”). In addition, a district court‟s

denial of such a request made after trial or before any meaningful trial proceedings have

begun may be subject to more searching scrutiny than the denial of a request made on the

eve (or in the midst) of trial, when assigning new counsel would inevitably disrupt the court‟s

schedule and impede the orderly administration of justice. See Leveto,

; Proctor,

; Solina,

; Menefield,

. On the other

hand, a motion to withdraw a mid-trial plea of guilty—and to have a new trial—where the

defendant has elected to plead guilty after hearing the government‟s evidence, also portends

inefficiencies, to wit, duplications of effort on the part of the prosecution, the judge, and the

22 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

witnesses, and the need for a second set of citizens to serve as jurors. See, e.g., United States v.

Schmidt,

(2d Cir. 2004).

A district court “need not countenance abuse of the right to counsel or the right to

waive it,” Taylor,

, and it is well within the court‟s discretion to deny a post-

waiver motion for new counsel when it is made in an effort to delay or disrupt the

proceedings, see

(“A defendant is not entitled to choreograph special appearances by

counsel or repeatedly . . . alternate his position on counsel in order to delay his trial or

otherwise obstruct the orderly administration of justice.” (internal quotation marks and

citation omitted)); Leveto,

(same); Proctor,

(same). Although

we will generally require a district court faced with a post-waiver motion for new counsel to

inquire into the defendant‟s reasons for the request and fully explain on the record the

grounds for its ultimate decision, we will “not insist upon a formal inquiry or colloquy where

the rationales for the request and decision are clearly apparent on the record.” Leveto,

.

With these principles in mind, we turn to the facts of Kerr‟s case and find that the

district court, having properly denied Kerr‟s first pro se motion to withdraw his plea, did not

abuse its discretion when it refused his post-waiver request for new counsel to help him file

a second.7 Acting pro se, Kerr filed his first motion to withdraw his plea days after it was

entered, asserting only that he wanted “the jury [to] find [him] guilty or not guilty.”

7As noted above, Kerr does not challenge on appeal the validity of his initial pretrial waiver of his right to counsel. We therefore assume for purposes of this analysis that it was knowingly and voluntarily made.

23 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

Appellant App‟x at 173. As the district court correctly determined in its April 26, 2010 order

denying the motion, this does not constitute a valid ground for withdrawal. See Fed. R.

Crim. P. 11(d)(2)(B) (defendant may withdraw his plea before sentencing if he “can show a

fair and just reason”); United States v. Gonzalez,

(2d Cir. 1992)

(defendant‟s “change of heart” not a “sufficient reason to permit withdrawal of a plea”). In

addition, a careful review of the plea colloquy clearly indicates that the district court

complied with the requirements of Rule 11 and fully ensured that Kerr‟s plea was knowing,

voluntary, and supported by a factual basis. See Fed. R. Crim. P. 11(b). The district court

therefore properly denied Kerr‟s first withdrawal motion. See Gonzalez,

.

Thus, when, in mid-May 2010, Kerr filed his post-waiver motion for the appointment

of new counsel, the district court was confronted with the following facts: (1) Kerr

effectively fired three attorneys before electing to proceed pro se at trial with a fourth as

standby counsel; (2) he pled guilty with the assistance of counsel midway through trial and

then resumed acting as his own attorney days later when he filed his first meritless pro se

motion to withdraw his plea; and (3) less than one month after the denial of that motion,

Kerr moved for the appointment of a fifth attorney to assist him with a second motion to

withdraw his plea. Considering these facts, we have little trouble concluding that the district

court acted within its discretion when it denied the request. While a first motion to

withdraw a plea is a “critical stage of the proceeding,” see Forbes,

, successive

motions in the form presented here, seeking the same relief yet articulating no specific

factual details which would support that relief, do not rise to that level. A defendant has no

right to whipsaw the district court and delay the proceedings by continually alternating his

24 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

position on counsel, especially when his post-waiver request for counsel arises in connection

with a motion the court has already denied. See Taylor,

; cf. Barnes,

. Moreover, although it would have been preferable for the district court to explain its

reasons for denying the request, see Leveto,

, we find no abuse of discretion

in this instance because the reasons for the court‟s decision—Kerr‟s alternating positions

with respect to representation and his attempt to delay the proceedings—are “clearly

apparent on the record,”

.

III. Sentencing Issues

Kerr challenges the procedural reasonableness of his sentence on three grounds,

arguing that the district court: (1) improperly held him accountable for the combined weight

of all 7,000 MDMA pills because he did not know about the 3,000 pills hidden in his

vehicle‟s rear interior paneling; (2) failed to find him eligible for a two-level minor role

adjustment pursuant to U.S.S.G. § 3B1.2; and (3) did not articulate an adequate basis for its

sentence. We review sentences for procedural and substantive reasonableness using a

“deferential abuse-of-discretion standard.” Gall v. United States,

(2007).

Procedural error occurs when, for example, the district court improperly calculates the

applicable Guidelines range, fails to consider the sentencing factors articulated in

(a), or neglects to explain the reasons for its chosen sentence. See United States v.

Cavera,

(2d Cir. 2008) (en banc).

Contrary to Kerr‟s first argument, the district court was not required to find that he

“knowingly” possessed all 7,000 MDMA pills before holding him accountable for them all.

We rejected an identical challenge in United States v. de Velasquez, where a defendant

25 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

convicted of the importation of heroin argued that because she had been unaware of the

heroin secreted in her shoes, she could not be held accountable for that amount.

(2d Cir. 1994). As we stated in that case, “[t]here is no requirement under the Guidelines

that the defendant know or foresee the total quantity of drugs in his possession to be

sentenced for the full amount.”

; see also U.S.S.G. § 1B1.3 cmt. n.2 (2010) (explaining

that “the defendant is accountable for all quantities of contraband with which he was directly

involved” and that the reasonable foreseeability requirement “does not apply to conduct that

the defendant personally undertakes”).

Kerr next argues that he was entitled to a minor role adjustment because he “was no

more than a onetime drug mule.” Appellant Br. at 56. “To the extent that [a defendant]

claims that one who is simply a courier is automatically entitled to a [U.S.S.G.] § 3B1.2 minor

role adjustment based on that status, we reject his argument.” United States v. Garcia,

(2d Cir. 1990) (per curiam). Instead, it was Kerr‟s burden to establish that his

conduct was minor “as compared to the average participant” in the crime of conviction.

United States v. Rahman,

(2d Cir. 1999); see also Garcia,

(“It is

the defendant‟s burden to establish by a preponderance of the evidence that his level of

culpability entitles him to a minor role reduction.”). This inquiry is highly fact-intensive and,

in cases involving drug couriers, necessarily depends on “such factors as the nature of the

defendant‟s relationship to other participants, the importance of the defendant‟s actions to

the success of the venture, and the defendant‟s awareness of the nature and scope of the

criminal enterprise.” Garcia,

. We have no difficulty concluding that Kerr

26 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

did not meet this burden as he failed to present any evidence or arguments addressing these

factors.

Finally, Kerr maintains that the district court rejected his sentencing arguments

without adequate explanation. As we have repeatedly reiterated, “we never have required a

District Court to make specific responses to points argued by counsel in connection with

sentencing.” United States v. Bonilla,

(2d Cir. 2010). Instead, the court is

required to “satisfy us only that it has considered the party‟s arguments and has articulated a

reasonable basis for exercising its decision-making authority.”

(citing Cavera,

). Here, the district court did just that: it “reviewed and considered all the pertinent

information including . . . submissions by counsel,” Appellant App‟x at 143-44, and

explained that it found “a sentence at the low end of the Guidelines range . . . fair, just, and

sufficient but not greater than that which is necessary to comply with the goals of

sentencing,” id. at 145. We also note that the district court made clear its desire to further

consider and likely credit Kerr‟s sentencing arguments, but stated that Kerr‟s refusal to meet

with the Probation Department deprived it of the necessary information to do so. Kerr‟s

sentence was procedurally sound.

IV. Pro Se Brief

Kerr argues in his pro se brief that the district court improperly denied his motion to

withdraw his guilty plea and challenges various aspects of his prosecution and trial. See Pro

Se Br. at 9-20. As we concluded above, Kerr‟s guilty plea was knowing and voluntary, and

the district court did not abuse its discretion when it denied his motion to withdraw it.

Kerr‟s remaining pro se arguments—concerning alleged prosecutorial misconduct, discovery

27 11-5462-cr(L); 10-3393-cr(con) United States v. Kerr

improprieties, the denial of his motion to dismiss the indictment, and various trial errors—

are therefore barred by his valid guilty plea. See United States v. Lasaga,

(2d

Cir. 2003) (“A defendant who pleads guilty unconditionally admits all elements of the formal

charge and, in the absence of court-approved reservation of issues for appeal, waives all

challenges to prosecution except those going to the court‟s jurisdiction.”).

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

28