United States v. Wallace

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOINE JERAMINE WALLACE, a/k/a Antoine Vermaine Wallace,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00201-RDB-1)
Submitted: December 16, 2009 Decided: January 11, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Bonnie S. Greenberg, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine Jeramine Wallace appeals his conviction by a
jury of one count of bank robbery in violation of 18 U.S.C. §
2113(a), (f) (2006), and his 216 month sentence of imprisonment.
We affirm.
We review de novo the district court’s denial of
Wallace’s motion for self-representation. United States v.
Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997). To properly
exercise the right to self-representation, the defendant’s
request must be: “(1) clear and unequivocal; (2) knowing,
intelligent, and voluntary; and (3) timely.” United States v.
Bush, 404 F.3d 263, 271 (4th Cir. 2005). A defendant cannot use
the right to self-representation as a means to delay the trial.
Id. at 272.
On appeal, Wallace contends that his assertion of his
right to self-representation was knowing, intelligent, and
voluntary, claiming that, unlike the defendant in Bush, he was
psychologically capable of making the decision to proceed
without counsel, and was prepared to represent himself. We
agree with the district court that Wallace’s request for self-
representation, made for the first time on the morning of trial,
was neither clear and unequivocal nor timely. See Bush, 404
F.3d at 271. Thus, the district court did not err in denying
Wallace’s motion for self-representation.
2
Wallace next argues that the district court erred in
considering the charging papers from the state district court to
determine whether his previous conviction for assault in the
state circuit court was a crime of violence as defined by U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.2 (2007). He
asserts that the district court charging papers for the assault
offense are not approved documents under Shepard v. United
States, 544 U.S. 13, 20-21 (2005). However, our review of the
record convinces us that the district court correctly found the
state circuit court proceeded on the district court charging
documents. See Md. R. Crim. P. 4-201(b), (c)(3) (providing
statement of charges constitutes charging document in district
court; in circuit court, offense may be tried on charging
document from district court); see also United States v.
Kirksey, 138 F.3d 120, 126 (4th Cir. 1998) (holding that, under
Maryland law, affidavit setting forth facts for probable cause,
required by Md. R. Crim. P. 211(b), is part of charging papers).
Therefore, those documents were properly considered in assessing
whether Wallace’s assault conviction was a crime of violence.
See United States v. Simms, 441 F.3d 313, 316 (4th Cir. 2006)
(holding that, under Shepard, Maryland application for statement
of charges is properly considered part of charging document).
3
Thus, the district court did not err by considering the state
district court charging papers. *
Wallace further contends that the facts that form the
basis of his assault conviction do not necessarily indicate that
the assault was a crime of violence. However, based on the
facts presented in the charging document, one of the elements of
Wallace’s assault conviction involved the use, attempted use, or
threatened use of physical force against the victim. USSG
§ 4B1.2. As a result, the district court properly determined
that the previous assault conviction constituted a crime of
violence and did not err in finding that Wallace was a career
offender subject to an enhanced sentence.
Accordingly, we affirm Wallace’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before the court and argument would not aid the decisional
process.
AFFIRMED
*
Our recent decision in United States v. Harcum, __ F.3d
__, 2009 WL 3834401 (4th Cir. Nov. 17, 2009) (No. 07-4890), does
not alter this result. In Harcum, an information was issued for
proceedings in the Maryland circuit court, and thus became the
“charging document” for Shepard purposes. Therefore, the
statement of charges used in the district court was not the
charging document relevant to Harcum’s circuit court conviction,
and could not be consulted to determine whether the conviction
constituted a violent felony under 18 U.S.C. § 924(e) (2006).
4