United States v. Decator ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4990
KITTRELL BERNARD DECATOR,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-95-202-HNM)
Submitted: January 26, 1999
Decided: March 22, 1999
Before HAMILTON and WILLIAMS, Circuit Judges and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Gerald P. Martin, MARTIN, JUNGHANS, SNYDER & BERN-
STEIN, P.A., Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, James G. Warwick, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kittrell Bernard Decator appeals from his sentence for his convic-
tions for conspiracy to commit bank robbery in violation of 18 U.S.C.
§ 371 (1994), armed bank robbery in violation of 18 U.S.C. § 2113(a)
(1994), and attempted armed bank robbery in violation of 18 U.S.C.
§ 2113(a) (1994). For the following reasons, we affirm.
In July 1994, Decator, Jonathan Mark Jones, and Craig Lamont
Scott were charged in a seven-count indictment with conspiracy to
commit bank robbery, two counts of armed bank robbery which
occurred on September 21, 1993, and June 8, 1994, attempted armed
bank robbery which occurred on June 6, 1994, and three counts of
using and carrying a firearm during the commission of a crime of vio-
lence. The district court agreed to sever Jones's trial from that of the
remaining Defendants. The court ordered Decator and Scott tried
jointly, but the counts were severed so that the joint trial was for the
June 8 robbery and the related firearms charges only. Decator and
Scott were convicted by a jury. During the trial, the Government
moved to dismiss without prejudice the remaining five charges
against Decator and Scott, which had been severed from the two
counts being tried. The district court granted the motion, but granted
the Government a period of time within which to make an election
regarding reinstatement of the charges. Decator was sentenced to
eighty-seven months imprisonment for the armed bank robbery
charge and five years, consecutively, for the firearms charge. His con-
viction was affirmed on appeal.
In May 1995, the grand jury returned an indictment against Deca-
tor, Scott, and Keith E. Bryant. The indictment charged Decator and
Scott with the September 21 armed bank robbery, the June 6
attempted armed bank robbery, two related firearms charges, and con-
spiracy to commit bank robbery--the five charges that previously had
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been dismissed. Decator elected to dismiss his trial counsel and pro-
ceed pro se. Bryant and Scott moved for a severance, which the court
granted, and Decator was tried separately.
Decator subsequently changed his mind and proceeded to trial on
the second indictment with counsel. Decator was convicted by a jury
on all five charges. The district court imposed a sentence on Decator
for the conspiracy, the September 21 armed bank robbery, and the
June 6 attempted armed bank robbery charges, as well as a consecu-
tive sentence for the firearms charges. On appeal, however, this court
vacated Decator's sentence for the three substantive bank robbery
charges after concluding that the district court erroneously sentenced
Decator outside of his presence and remanded for resentencing. See
United States v. Decator, 112 F.3d 511 (4th Cir. May 6, 1997)
(unpublished), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3297 (U.S.
Oct. 20, 1997) (No. 97-5871).
Decator was resentenced in November 1997, which is the judgment
Decator is currently appealing. Prior to the resentencing hearing,
Decator sent a letter to the district court stating that he had dismissed
his trial counsel. The district court responded in a letter informing
Decator that he had not shown "any good cause whatever to dismiss"
his counsel. The district court stated that, therefore, there would be no
substitution of counsel or delay in the resentencing. At the resentenc-
ing hearing, Decator's counsel informed the court that Decator
"would like to represent himself." The district court denied Decator's
request to proceed pro se, and Decator's counsel represented him dur-
ing the proceeding.
The district court allowed Decator to speak on various legal points
he wished to present to the court. The court then sentenced Decator
to concurrent terms of forty-six months imprisonment for the conspir-
acy, September 21 armed bank robbery, and the June 6 attempted
armed bank robbery charges under the second indictment to run con-
currently with the unexpired term of the eighty-seven months
imposed for the armed bank robbery charge under the first indictment.
On appeal, Decator claims that he was denied his right to self-
representation at the resentencing hearing. We review the district
court's decision to deny Decator's request to represent himself at his
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resentencing hearing for an abuse of discretion. See United States v.
Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997).
A defendant does not have an absolute right to self-representation.
See United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978).
Rather, if a defendant proceeds to trial with counsel and asserts his
right to self-representation after the trial has begun, the right to self-
representation may be denied in an effort "to minimize disruptions, to
avoid inconvenience and delay, to maintain continuity, and to avoid
confusing the jury." Id.In this case, although the jury had already determined Decator's
guilt and had been discharged, the district court properly considered
the benefits of continuity in counsel and the disadvantage of further
disruptions or delay. The district court found that it would be a "major
disruption of the trial proceeding and of the prior proceedings, if at
this late date, on a remand for resentencing," Decator was permitted
to represent himself. The district court did not abuse its discretion in
denying Decator's motion to proceed pro se and deciding that Deca-
tor's interests were best protected by allowing his counsel to continue
representing him, noting that defense counsel had"done an excellent
job as appointed counsel, a very excellent job."
Decator also claims that the district court erred by not conducting
an inquiry into Decator's reasons for wanting to proceed pro se and,
thus, not creating a sufficient record to rely upon to deny his request.
We disagree. The case law advanced by Decator in support of this
argument on appeal relates to the inquiry a court must conduct before
accepting a defendant's waiver of his right to counsel. Here, after the
court decided that Decator's pro se representation would have been
inappropriate, it was unnecessary to conduct a waiver inquiry to
determine if Decator was knowingly relinquishing his right to coun-
sel.
Accordingly, we affirm Decator's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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