NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 21-2039 _______________

UNITED STATES OF AMERICA

v.

JAMES WILLIAMS, Appellant

_______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 2-17-cr-00645-001) District Judge: Honorable Gene E.K. Pratter _______________

Submitted Under Third Circuit L.A.R. 34.1(a): April 6, 2023 _______________

Before: CHAGARES, Chief Judge; GREENAWAY, JR., and PORTER, Circuit Judges.

(Filed: April 14, 2023)

______________

OPINION ______________

 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.

A jury convicted James Williams of various drug and firearm offenses, but he

claims that the District Court denied him his Sixth Amendment right to represent himself

and wrongfully applied the Sentencing Guidelines’ career offender enhancement. We

disagree. But Williams is correct that, in entering concurrent sentences of 162 months on

the four counts of conviction, the District Court sentenced him beyond the statutory

maximum term then authorized by

(g)(1). So we will affirm the judgment

of conviction as to counts one, two, and three, vacate the sentence imposed for count five,

and remand for resentencing on count five only.1

I

We exercise plenary review of a claim that a district court violated a defendant’s

right to self-representation. United States v. Peppers,

(3d Cir. 2002).

That right is firmly rooted in our legal system, “find[ing] support in the structure of the

Sixth Amendment, as well as in the English and colonial jurisprudence from which the

Amendment emerged.” Faretta v. California,

(1975).

“It is undeniable that in most criminal prosecutions defendants could better defend

with counsel’s guidance than by their own unskilled efforts.”

. Thus, a

defendant must state his request to proceed pro se “unambiguously to the court so that no

reasonable person can say that the request was not made.” Buhl v. Cooksey,

,

1 The District Court had jurisdiction under

. We have jurisdiction under

and

(a).

2 790 n.9 (3d Cir. 2000) (quoting Dorman v. Wainwright,

(11th Cir.

1986)). And courts must “indulge in every reasonable presumption against waiver.”

Brewer v. Williams,

(1977). Judges who receive a clear and

unambiguous waiver must conduct a colloquy with the defendant and make him aware of

“the dangers and disadvantages of self-representation.” Faretta,

.

Before trial, Williams expressed dissatisfaction with defense counsel and asked to

be appointed new representation. The District Court denied his request, a decision

Williams does not challenge. Also before trial, Williams, defense counsel, and the

government worked with the District Court to subpoena two cell phone providers for

recordings of phone conversations involving his codefendant and a confidential

informant. The providers responded that they did not possess responsive recordings. This

was unsurprising because there was no record of a wiretap for those calls.

Nevertheless, at a hearing on April 4, 2019, defense counsel argued to the District

Court that the providers’ responses were ambiguous and suggested that the defense might

subpoena individuals from both providers. The District Court responded that it would not

limit the defense’s ability to call witnesses, but that, in the Court’s view, the providers

had complied with the subpoena and the testimony of individual employees of the

providers would likely be irrelevant at trial. The Court also indicated that it was not

inclined to delay trial, which was scheduled to begin in less than a week. The below

exchange followed:

THE COURT: No, there’s no inference [that the recordings may exist]. The only thing is that the witness is called to come in and testify and take the

3 jury’s time and they don’t know anything on the point that you’re asking them.

WILLIAMS: Can I proceed pro se for a minute?

THE COURT: Pardon?

WILLIAMS: Can I proceed pro se for a minute so I can speak for myself because there’s case law specific to this situation.

THE COURT: No, there isn’t, sir.

App. 80.

Williams then insisted that providers can be required to turn over responsive

records, but he did not acknowledge that the providers in question had already informed

the Court that they did not possess any. The Court responded, “[i]t’s defense counsel’s

strategy and I’m not—” before defense counsel interrupted and Williams made what he

claims was a clear, unequivocal request to proceed pro se:

DEFENSE COUNSEL: If my client is requesting I subpoena the individuals, then I’m going to have to subpoena them. If they’re not available, then I would be requesting a continuance from the Court. WILLIAMS: I would like to move pro se from this moment forward. THE COURT: No, we’re not going to do this again until you think it through. WILLIAMS: I have. I have.

App. 81. The Court then addressed defense counsel and again advised her that she could

call individuals from each provider, subject to objections about relevance, and that the

Court was unlikely to issue a continuance.

In sum, Williams asked to “proceed pro se for a minute,” and then, a few minutes

later, “to move pro se from this moment forward.” In many other contexts, these

statements would be enough to effect a waiver of the right to counsel. But it is not clear

4 to us now, and it certainly was not clear to the District Court during the hearing in

question, that Williams wanted to fire his appointed defense counsel and assume all

aspects of his defense. Instead, we agree with the District Court that the record suggests

that Williams wanted to “glide in and out of self-representation.” App. 279. There is no

constitutional right to a hybrid arrangement where a defendant proceeds pro se at some

points and is represented by counsel at others. McKaskle v. Wiggins,

(1984).

Williams proceeded to trial without further objection to his representation by

counsel. After trial, Williams wrote a letter to the District Court and asked “to proceed[]

in a pro se capacity . . . representing [himself]” with standby counsel. App. 106. The

District Court held a hearing on the motion, conducted a Faretta colloquy, and allowed

Williams to proceed pro se. In contrast to this unambiguous post-trial request, Williams’

pretrial statements about self-representation were far from clear and unambiguous, and

the Supreme Court requires trial judges to “indulge in every reasonable presumption

against waiver.” Brewer,

. So we reject Williams’ claim that the District

Court erred in denying him the right to proceed pro se before his trial.

II

The career offender provision of the Guidelines dramatically increases a

defendant’s sentencing range if he has previously been convicted of two “crimes of

violence” or “controlled substance offenses.” U.S.S.G. § 4B1.1(a). Before his most recent

arrest, Williams was twice convicted of violating 35 Pa. Stat. Ann. § 780-113(a)(30),

which prohibits manufacturing, delivering, or possessing with the intent to manufacture

5 or deliver a controlled substance. The District Court correctly determined that these

convictions were for controlled substance offenses as defined by the Guidelines and

applied the enhancement.

Courts apply the categorical approach to determinate whether a state offense

triggers an enhancement articulated in the Guidelines. See United States v. Brasby,

, 133–34 (3d Cir. 2023). That approach requires judges to ignore the

defendant’s actual conduct and instead “compare the elements of [the state] statute with

the relevant Guidelines provision—here, § 4B1.2(b)’s definition of a ‘controlled

substance offense.’ ” United States v. Dawson,

, 260 (3d Cir. 2022). “If the

statute proscribes a broader range of conduct than the Guideline, then a conviction for the

state offense will not count as a controlled substance offense.”

Williams originally argued that his prior convictions under § 780-113(a)(30) do

not count as controlled substance offenses because the statute punishes the attempted

transfer of a controlled substance. The Guidelines definition does not mention attempt

offenses—it covers “manufacture, import, export, distribution or dispensing of a

controlled substance”—so Williams maintained that § 780-113(a)(30) was not a

categorical match. Appellant’s Br. at 32 (citing U.S.S.G. § 4B1.2(b)). We recently

rejected Williams’ argument in Dawson. 32 F.4th at 258–59. We explained that “§ 780-

113(a)(30) is a completed offense which, in one definition, uses the word ‘attempted’ in

its ordinary sense.” Id. at 259 (citing United States v. Havis,

(6th Cir.

2019) (Sutton, J., concurring in the denial of en banc reconsideration)).

6 Williams also argued that § 780-113(a)(30) punishes the “administering” of

controlled substances, while the Guidelines do not go so far. See § 780-102(b). We

considered this theory in United States v. Womack and found it without merit.

, 238–40 (3d Cir. 2022). We held that § 780-113(a)(30) “expressly excludes the

possibility that ‘administering,’ as defined in Section 780-102, falls within its scope.” Id.

at 239.

In a letter filed with the Court, Williams commendably acknowledged that

Dawson and Womack foreclose his arguments that his convictions under § 780-

113(a)(30) do not qualify as controlled substance offenses under the Guidelines. As a

result, all agree that the District Court properly applied the career offender enhancement.

III

The District Court sentenced Williams to four concurrent terms of 162 months.

One of the counts of conviction, count five, was for possession of a firearm as a

prohibited person in violation of

(g)(1). When Williams was arrested, that

offense had a maximum sentence of 10 years, so the District Court’s sentence of 162

months was improper. See

(a)(2) (2017). 2 Williams did not object when

the District Court imposed this sentence. Had he done so, we are confident the District

2 Congress recently increased the maximum penalty to 15 years. Bipartisan Safer Communities Act,

Stat. 1313, 1329 (2022), codified at

(a)(8). The revised penalty does not apply to Williams because a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,” violates the ex post facto clause, U.S. Const. art. 1, § 9, cl. 3. Calder v. Bull,

, 390 (1798) (emphasis added).

7 Court would have corrected the error in real time. But a sentence that exceeds the

statutory maximum is plainly erroneous, so we will remand for the District Court to

resentence Williams on count five only. United States v. Gunter,

(3d

Cir. 2008), vacated on other grounds,

(2009).

IV

We reject Williams’s claims that he was denied the right to represent himself and

that the District Court improperly sentenced him as a career offender, but he is correct

that the Court sentenced him beyond the statutory maximum under § 922(g)(1). We will

affirm the judgment of conviction on counts one, two, and three. We will vacate the

sentence imposed for count five and remand solely for resentencing on that count.

8