United States v. Joseph Hall , 403 F. App'x 214 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10216
Plaintiff - Appellee, D.C. No. 2:06-CR-00310-HDM-
PAL
v.
JOSEPH HALL, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada, Las Vegas
Howard D. McKibben, District Judge, Presiding
Submitted August 12, 2010 **
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Joseph Hall appeals his conviction on one count (Count 3) of the indictment
and his sentence for all three counts of his conviction for possession with intent to
distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
Hall contends that there was insufficient evidence to convict him of Count 3
of the indictment, which charged Hall with possession with intent to distribute 50
grams or more of crack cocaine on August 23, 2006. We review claims of
insufficient evidence de novo. See United States v. Sullivan, 522 F.3d 967, 974
(9th Cir. 2008) (per curiam). “There is sufficient evidence to support a conviction
if, viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (internal quotation marks, citation, and emphasis omitted).
The crack cocaine referred to in Count 3 was recovered pursuant to a search
warrant executed on the apartment where Hall was staying. A rational trier of fact
could have found beyond a reasonable doubt that Hall had constructive possession
of the crack cocaine because: (1) Hall was the only person that the police observed
over several days who had keys to the apartment; (2) police observed Hall going
into the apartment and staying inside it; (3) the cocaine was found in a large bag
along with money used by an undercover policeman to buy cocaine from Hall just
the day before; and (4) Hall had recently sold cocaine to an undercover policeman
twice. Viewing the evidence in the light most favorable to the prosecution, this is
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sufficient evidence from which a rational trier of fact could have found Hall had
constructive possession of the cocaine. See United States v. Young, 420 F.3d 915,
917 (9th Cir. 2005); United States v. Scott, 74 F.3d 175, 178 (9th Cir. 1996).
Hall contends that he did not knowingly and intelligently waive his right to
counsel when he decided to represent himself at sentencing. The trial judge
conducted a proper Faretta 1 hearing to determine Hall’s competence to represent
himself. We review the validity of a Faretta waiver de novo. United States v.
Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004). On appeal, the burden of
establishing the validity of a waiver of counsel is on the government, and the court
should “indulge in every reasonable presumption against waiver.” United States v.
Forrester, 512 F.3d 500, 506 (9th Cir. 2008) (internal quotation marks omitted).
In evaluating the validity of a defendant’s waiver of his right to counsel, we
review whether the district court insured that the defendant understood the nature
of the charges against him, the possible penalties, and the dangers and
disadvantages of self-representation. Id. However, “[n]either the Constitution nor
Faretta compels the district court to engage in a specific colloquy with the
defendant.” Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000) (en banc).
Furthermore, the district court should focus on the defendant’s understanding of
1
Faretta v. California, 422 U.S. 806, 808–09 (1975).
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the importance of counsel, rather than the defendant’s understanding of the
substantive law or the procedural details. Id. at 1119.
The record demonstrates that Hall understood the nature of the charges
against him. He had the trial transcript and the Presentence Report, and he had
been present at the proceedings. Also, the district court explained to Hall that the
court would consider prior convictions when fashioning Hall’s sentence. Hall also
understood the possible penalties he faced, as the district court discussed with Hall
that he might receive a life sentence as recommended in the Presentence Report.
The district court also granted Hall’s request for the grand jury transcripts and the
police reports for his prior convictions and his request that he be allowed to use the
law library while in jail to prepare for the sentencing hearing. The district court
extensively warned Hall about the dangers and disadvantages of self-representation
in a colloquy during his Faretta hearing. The district court also appointed the
counsel that had represented Hall at trial to remain as stand-by counsel to advise
Hall. Importantly, neither Hall, his attorney, nor anyone else ever advised the
district court that Hall was not mentally competent to represent himself, nor does
the record reveal any reason to think that he was not competent.
Hall contends that the government failed to prove his prior felony drug
convictions, which were used to enhance his sentence to life without the possibility
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of parole. We review de novo whether sufficient evidence supports the finding that
a defendant had been convicted of a crime. United States v. Okafor, 285 F.3d 842,
847 (9th Cir. 2002). “Evidence of the prior conviction is sufficient if, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the fact of the prior conviction beyond a reasonable doubt.” Id at
847-48.
Based on the documents of conviction provided by the government
regarding Hall’s prior convictions, the fact that Hall admitted that he was the
person named in those documents, and the fact that Hall failed to raise valid
objections to his prior convictions, the district court did not err in finding that the
government proved Hall’s two California felony drug convictions beyond a
reasonable doubt.
Next, Hall contends that 21 U.S.C. § 841, the statute of conviction, violates
the Eighth and Fourteenth Amendments. We review the constitutionality of
criminal statutes de novo. United States v. Harding, 971 F.2d 410, 412 (9th Cir.
1992). We have already upheld the constitutionality of a life sentence pursuant to
21 U.S.C. § 841 under the Eighth and Fourteenth Amendments. See Harding, 971
F.2d at 414 (holding that greater sentences for possession of crack cocaine than for
possession of powder cocaine do not deny equal protection under the Fourteenth
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Amendment); United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991)
(per curiam) (holding that the disparity in sentencing between crack cocaine and
powder cocaine is a rational distinction and that sentences based on it are not
disproportionate in violation of the Eighth Amendment).
Finally, we note there is new legislation just passed by Congress to reduce
the disparity between sentencing for powder cocaine and crack cocaine. Fair
Sentencing Act of 2010, S. 1789, 111th Cong. (2010). This legislation will not
affect Hall’s sentence, however, because: (1) he is a career offender, and the new
legislation does not change the mandatory life sentence; and (2) the new legislation
is not retroactive. Thus, the new legislation does not present a reason for us to
remand this case.
AFFIRMED.
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