United States v. Maness ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30607
Plaintiff-Appellee, D.C. No.
v.  CR-03-00077-a-
BRET F. MANESS, RRB
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 07-30035
Plaintiff-Appellee, D.C. No.
v.  CR-03-00077-a-
BRET F. MANESS, RRB
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
February 2, 2009—Seattle, Washington
Filed May 19, 2009
Before: Betty B. Fletcher, Pamela A. Rymer and
Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion
6011
UNITED STATES v. MANESS 6013
COUNSEL
Bret F. Maness (argued), Atwater, California, pro se
defendant-appellant.
Nelson P. Cohen, United States Attorney, Jo Ann Farrington
and Thomas C. Bradley (argued), Assistant United States
Attorneys, Anchorage, Alaska, for the plaintiff-appellee.
OPINION
PER CURIAM:
Bret F. Maness was convicted of firearm possession fol-
lowing a jury trial and, after a remand from this court, sen-
tenced to 120 months’ imprisonment. Maness appeals his
sentence on the grounds that the district court violated his
right to represent himself at sentencing and improperly
6014 UNITED STATES v. MANESS
applied a sentencing enhancement based on his possession of
a semiautomatic assault weapon. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.1
I.
In June 2001, Alaska state troopers went to Maness’ home
in Wasilla to take him into custody and involuntarily commit
him to a psychiatric institution pursuant to a petition filed by
his wife. Maness fled from the troopers, but was arrested after
a long pursuit and eventual confrontation that ended with a
trooper shooting Maness in the shoulder as he pointed a
weapon at the officers. At the time he was arrested, Maness
had two firearms in his possession as well as other weapons
and ammunition found in his motor home.
Maness was found guilty of two counts of firearm posses-
sion in June 2003. The district court sentenced him to 120
months with supervised release for three years. Maness
appealed his conviction and sentence to this court. We granted
a limited remand on his sentencing issues pursuant to United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
See United States v. Maness, 139 Fed. App’x 780 (9th Cir.
2005); United States v. Maness, 112 Fed. App’x 610 (9th Cir.
2004).
After the initial briefing in the district court on remand,
Maness moved to proceed pro se, which the district court
denied. The district court ultimately affirmed Maness’ origi-
nal sentence, and this appeal followed.
II.
[1] The Sixth Amendment guarantees a defendant the right
to represent himself. See Faretta v. California, 422 U.S. 806,
1
Maness also appeals several other aspects of his sentence, which we
address in a concurrently filed memorandum disposition.
UNITED STATES v. MANESS 6015
819 (1975). If a defendant’s request to proceed pro se is
timely, not for purposes of delay, unequivocal, voluntary,
intelligent and the defendant is competent, it must be granted.
See United States v. Hernandez, 203 F.3d 614, 620-21 & 620
n.8 (9th Cir. 2000), abrogation on different grounds noted in
United States v. Ferguson, 560 F.3d 1060, 1067 (9th Cir.
2009). When the district court denied Maness’s motion to pro-
ceed pro se, it explained:
Maness has an extensive history with the criminal
justice system and likely understands the ramifica-
tions of self-representation. However, the issue
remaining before this Court is limited to the issue of
re-sentencing, which has yet to be resolved by this
Court. If re-sentencing is permitted, Defendant
would likely benefit from legal representation.
The issue of whether or not re-sentencing is required
has been fully briefed and is currently under consid-
eration. Therefore, although the Court DENIES the
Motion to Proceed Pro Se at this time, all of Mr.
Maness’s pleadings will be considered by the Court.
The district court did not, however, address the Hernandez
requirements or find that Maness did not meet those require-
ments. This was error.2 The question is whether the error may
be considered harmless.
[2] An improper denial of a request to proceed pro se at
trial is “not amenable to harmless error analysis. The right is
either respected or denied; its deprivation cannot be harm-
less.” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); see
2
We have not yet clarified whether denial of a request to proceed pro
se is reviewed de novo or for abuse of discretion. See United States v.
Kaczynski, 239 F.3d 1108, 1116 (9th Cir. 2001). Under either standard,
however, the district court erred in denying Maness’ motion without fol-
lowing Hernandez.
6016 UNITED STATES v. MANESS
also United States v. Arlt, 41 F.3d 516, 524 (9th Cir. 1994).
We have held, however, that violating a defendant’s Sixth
Amendment right to counsel of his choice is subject to harm-
less error analysis if the violation occurred only at sentencing
and not at the guilt phase of trial. See United States v. Wal-
ters, 309 F.3d 589, 592-93 (9th Cir. 2002). In Walters, we
addressed a district court’s improper refusal to allow out-of-
state counsel to proceed pro hac vice. See id. at 591. Discuss-
ing the district court’s error, we noted that structural errors —
which are not subject to harmless error review — are defined
as errors that “permeate[ ] the entire conduct of the trial from
beginning to end or affect[ ] the framework within which the
trial proceeds.” Id. at 593 (quoting Rice v. Wood, 77 F.3d
1138, 1141 (9th Cir. 1996)) (internal quotations omitted).
Because Walters’ pro hac vice attorney “was excluded from
participating only in the sentencing phase, not the guilt
phase,” we held that “[t]his exclusion did not affect the frame-
work within which the trial proceed[ed].” Id. (internal quota-
tions omitted).
[3] Similar analysis applies to Maness’ request to proceed
pro se at his Ameline sentencing remand. We hold that an
improper denial of a defendant’s motion to proceed pro se at
sentencing, rather than at trial, is not a structural error and is
thus subject to harmless error analysis. The error is not intrin-
sically harmful to the entire proceedings. See id. (quoting
Neder v. United States, 527 U.S. 1, 7 (1999)). The appellate
court may review the sentencing proceedings and ascertain
beyond a reasonable doubt whether the error contributed to
the sentence imposed. See id. Indeed, the record here is quite
evident that the district court’s denial of Maness’ request to
represent himself did not cause any error because, although it
did not allow Maness to proceed without an attorney, the
court did permit Maness to file briefs and motions pro se. The
court acted upon those pro se filings, ordering the government
to respond to several motions and granting one. It is thus clear
beyond a reasonable doubt that the Sixth Amendment error
UNITED STATES v. MANESS 6017
did not result in prejudice. See United States v. Marks, 530
F.3d 799, 812 (9th Cir. 2008).
III.
[4] One of the weapons Maness possessed at the time he
was arrested was a Norinco MAK-90. The Sentencing Guide-
lines in effect when Maness was sentenced specified a higher
base offense level if the offense involved a firearm described
in 26 U.S.C. § 921(a)(30), which described characteristics of
semiautomatic assault weapons as part of the then-extant
semiautomatic assault weapons ban. Another section of the
statute, however, exempted weapons manufactured prior to
September 13, 1994 from the ban. See 18 U.S.C. § 922(v)(2).
Maness argues that because the Norinco MAK-90 was manu-
factured prior to that date, the district court should not have
applied the sentencing enhancement. We disagree. The
Guidelines borrow the statutory definition of a semiautomatic
assault weapon, but do not explicitly incorporate the statute’s
effective date, and the Sentencing Commission’s determina-
tions do not turn on whether possession of a weapon consti-
tutes a separate criminal act under the statute. See, e.g.,
United States v. Simmons, 485 F.3d 951, 954 (7th Cir. 2007);
United States v. Laureano-Velez, 424 F.3d 38, 41 (1st Cir.
2005); United States v. Ray, 411 F.3d 900, 905-06 (8th Cir.
2005); United States v. Vega, 392 F.3d 1281, 1282-83 (11th
Cir. 2004). The district court’s sentencing enhancement was
therefore proper.
AFFIRMED.