United States v. Enrique Collazo-Juban , 462 F. App'x 937 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 23, 2012
No. 11-10388
JOHN LEY
Non-Argument Calendar
CLERK
________________________
Docket No. 1:09-cr-20110-ASG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE COLLAZO-JUBAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 23, 2012)
Before EDMONDSON, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Enrique Collazo-Juban appeals his conviction and 60-month, above-
guidelines sentence for possession of a firearm by a convicted felon, 18 U.S.C. §
922(g)(1). No reversible error has been shown; we affirm.
On appeal, Collazo-Juban challenges whether he waived his right to counsel
knowingly and voluntarily. Whether a defendant has waived his right to appointed
counsel knowingly, voluntarily, and intelligently is a mixed question of fact and
law that we review de novo. United States v. Kimball, 291 F.3d 726, 730 (11th
Cir. 2002).
A criminal defendant has a constitutional right to represent himself at trial.
Id. But before a defendant may waive his right to counsel, he “‘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.’” Id. (citing Faretta v. Cal., 95 S.Ct. 2525, 2541 (1975)). Although not
required, the “ideal method” for the district court to ensure that a defendant
understands the consequences of waiving the assistance of counsel is through a
pre-trial hearing -- known as a Faretta inquiry -- during which the court informs
the defendant of the charges against him, the possible punishments, basic trial
procedures, and the hazards of self-representation. Id.2
“[T]he ultimate test for whether there has been a valid waiver of the right to
counsel ‘is not the trial court’s express advice, but rather the defendant’s
understanding.’” United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995).
Thus, in determining whether the defendant’s waiver is valid, we consider a
variety of factors:
(1) the defendant’s age, health, and education; (2) the defendant’s
contact with lawyers prior to trial; (3) the defendant’s knowledge of
the nature of the charges and possible defenses and penalties; (4) the
defendant’s understanding of the rules of evidence, procedure, and
courtroom decorum; (5) the defendant’s experience in criminal trials;
(6) whether standby counsel was appointed and, if so, the extent to
which standby counsel aided in the trial; (7) any mistreatment or
coercion of the defendant; and (8) whether the defendant was
attempting to manipulate the trial.
Kimball, 291 F.3d at 730-31.
Here, the district court conducted two Faretta hearings, after which the court
concluded that Collazo-Juban’s waiver of his right to counsel was “unequivocal,
knowing[,] and intelligent.” In its orders, the district court described the content
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of its advice and warnings to Collazo-Juban during the Faretta hearings and its
reasons for granting Collazo-Juban’s request to represent himself. But, to
determine whether Collazo-Juban understood the court’s advice and warnings, we
look at other factors.
In doing so, we conclude that the factors weigh in favor of the validity of
Collazo-Juban’s waiver. Collazo-Juban was 53 years old when he went to trial,
and nothing evidences that he was in poor physical or mental health. Although he
only completed the tenth grade, his three pro se letters to the court demonstrated
his ability to read, to write, and to communicate effectively. Collazo-Juban also
had extensive contact with his lawyer, Joaquin Mendez, before trial, including
during three pre-trial hearings on his motions to suppress evidence. Upon
granting Collazo-Juban’s request to represent himself at trial, the district court
appointed Mendez as standby counsel to assist Collazo-Juban during his trial and
with his trial preparation. The record reflects that Mendez provided considerable
assistance during the trial, helping Collazo-Juban with jury selection, the
introduction of evidence, stipulations about his prior felony conviction, and the
jury instructions.
That Collazo-Juban understood the nature of the charges against him and his
possible defenses is also evidenced both by his pro se letters to the court and his
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performance at trial. Collazo-Juban’s pro se letters reflected his understanding
that his federal charge stemmed from the same incident as did his state charge for
illegal possession of a firearm. And at trial, Collazo-Juban told the jury during his
opening statement that he had been charged with being a felon in possession of a
firearm but that he never possessed the firearm; his cross-examination of witnesses
focused on whether the witnesses in fact saw him in possession of a firearm; and
his closing argument also addressed the issue of possession.1 Moreover, based on
his extensive criminal record -- including 11 convictions, 1 of which followed a
jury trial -- we accept that Collazo-Juban understood basic trial procedures and
had sufficient experience in criminal proceedings. See Nelson v. Alabama, 292
F.3d 1291, 1299 (11th Cir. 2002) (concluding that the defendant’s earlier
participation in criminal proceedings provided a “strong indication that [he]
understood the relevant rules of procedure and evidence and the appropriate
courtroom decorum”).
In addition, nothing evidences that Collazo-Juban was coerced into
defending himself or that his request was merely an attempt to manipulate the trial
process. Instead, the district court -- suspecting that Collazo-Juban was only
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The district court’s pertinent order indicated that the court informed Collazo-Juban that he faced
up to ten years’ imprisonment; nothing evidences that Collazo-Juban understood this information.
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trying to delay his trial -- conducted two separate Faretta hearings, “urged”
Collazo-Juban not to represent himself, and verified immediately before trial that
Collazo-Juban still desired to do so. Considering all the circumstances, we agree
with the district court’s conclusion that Collazo-Juban’s waiver was knowing,
voluntary, and intelligent.
We next address Collazo-Juban’s sentencing argument. He argues that the
district court’s above-guidelines sentence was substantively unreasonable given
the facts of his case and the age of his prior convictions. We evaluate the
substantive reasonableness of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 128 S.Ct. 586, 597 (2007). The party challenging
the sentence bears the burden of establishing that the sentence is unreasonable in
the light of both the record and the section 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will not reverse unless we are
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
We conclude that Collazo-Juban failed to satisfy his burden of proof. First,
his 60-month sentence is well below the 10-year statutory maximum sentence for
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his offense. See 18 U.S.C. § 924(a)(2); United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008) (concluding that the reasonableness of a sentence may also
be indicated when the sentence imposed was well below the statutory maximum
sentence).
According to the Presentence Investigation Report, Collazo-Juban has 11
prior convictions, 4 of which were for illegal possession of firearms. He also has a
conviction for attempted first-degree murder based on a 1991 incident in which he
shot his victim eight times after a verbal dispute. Although Collazo-Juban was
sentenced to 22 years’ imprisonment for that offense, he was released in 2003 and
committed the instant offense in 2008.2 Based on this record, we accept the
district court’s conclusion that an above-guidelines sentence was needed to
promote respect for the law, to deter Collazo-Juban from further criminal activity,
and to protect the public.
We are unconvinced that the facts of this case warrant a different result.
Collazo-Juban attempted to flee from a security guard who had observed him
trying to break into a truck. The guard followed Collazo-Juban; and, as the guard
2
Because Collazo-Juban’s prior convictions occurred more than 15 years before the instant
offense, most of them did not result in criminal history points, pursuant to U.S.S.G. § 4A.2(e)(1).
He did, however, receive 3 criminal history points for his attempted murder conviction because he
had been incarcerated for that conviction within 15 years of the instant offense. Based on his offense
level of 20 and criminal history category of II, Collazo-Juban’s guidelines range was 37 to 46
months’ imprisonment.
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approached him, Collazo-Juban threatened the guard verbally. At that same
moment, a backup guard arrived; and Collazo-Juban fled again. When the guards
later caught Collazo-Juban, a gun fell out of his waistband. Although no one was
injured during the commission of the offense, the facts of this case do not support
Collazo-Juban’s argument that the district court abused its discretion in imposing
an above-guidelines sentence.
We also reject Collazo-Juban’s argument that the staleness of his
convictions renders them inappropriate for consideration under the section 3553(a)
factors. Although Collazo-Juban suggests that the age of his convictions reflects
his rehabilitation, we note that his hiatus from crime had more to do with his
serving a prison sentence for attempted murder between 1991 and 2003 than it did
his rehabilitation. In addition, that Collazo-Juban continued to possess a firearm
after 4 prior convictions for illegal possession of a firearm and after serving more
than 12 years in prison for attempted murder contradicts Collazo-Juban’s
rehabilitation theory and supports the district court’s conclusion that the facts of
this case warranted an above-guidelines sentence.
AFFIRMED.
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