United States v. Sparkman
Opinion
A jury convicted Charles Edward Spark-man of being a convicted felon in possession of a firearm. The district court sentenced him to 294 months of imprisonment and a five-year term of supervised release. Sparkman filed a timely notice of appeal.
Sparkman contends that the district court should have instructed the jury to approach with great care and caution the testimony of interested witnesses. However, because Sparkman did not request such an instruction on the record, review of the instruction given regarding the credibility of witnesses is reviewed only for plain error. See United States v. Redd, 355 F.3d 866, 874-76 & n. 8 (5th Cir. 2003). The instruction given tracked this court’s pattern jury instructions. Sparkman has not shown plain error in this regard. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005); United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994).
Sparkman argues that he was denied a fair trial when the prosecutor made improper comments during closing argument. This argument, too, is reviewed only for plain error as it was not raised in the district court. The inference argued by the prosecutor, that Sparkman could have thrown a gun from a car window without a pursuing law enforcement officer noticing, was supported by the evidence adduced at trial. Accordingly, the comment was not improper, and Sparkman has not shown plain error. See United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998).
Sparkman argues that his Sixth Amendment rights were violated when he was allowed to proceed pro se at sentencing without a sufficient colloquy to establish that he knowingly and unequivocally waived his right to counsel. We agree. Because the sentencing transcript in Sparkman’s case contains no Faretta 1 colloquy demonstrating that the district court warned him of the “perils and disadvantages of self-representation,” particularly before attempting “to navigate the Guidelines’ various potentialities on his own,” we vacate Sparkman’s sentence and remand for resentencing. See United States v. Virgil, 444 F.3d 447, 454, 456 (5th Cir. 2006). That being so, we do not address the other sentencing issue Sparkman now raises. See United States v. Akpan, 407 F.3d 360, 377 n. 62 (5th Cir. 2005).
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward SPARKMAN, Also Known as Edward Charles Sparkman, Also Known as Popa Charlie, Defendant-Appellant
- Cited By
- 1 case
- Status
- Unpublished