United States v. Jason Welch

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4439
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON CHRISTOPHER WELCH,
Defendant - Appellant.
No. 13-4440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON CHRISTOPHER WELCH,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:06-cr-00291-TDS-1; 1:10-cr-00110-TDS-1)
Submitted: December 12, 2013 Decided: January 30, 2014
Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan D. Campbell, S. Hamilton, Massachusetts, for Appellant.
Harry L. Hobgood, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jason Christopher Welch pled guilty in 2007 to one
count of mail fraud, in violation of 18 U.S.C. § 1341 (2012),
and one count of aggravated identity theft, in violation of
18 U.S.C. §§ 2, 1028A(a)(1) (2012), and was sentenced to
twenty-seven months’ imprisonment, a consecutive term of
twenty-four months’ imprisonment, and concurrent terms of
supervised release of three years and one year. In 2010, Welch
pled guilty to one count of escape from a residential re-entry
center, in violation of 18 U.S.C. § 751(a) (2012), and was
sentenced to sixteen months’ imprisonment and three years of
supervised release. In 2012, the district court revoked Welch’s
terms of supervised release and sentenced him to concurrent
prison terms of fourteen months and twelve months in the mail
fraud and aggravated identity theft case and a consecutive
prison term of fourteen months in the escape case. The court
also imposed two consecutive twenty-two-month terms of
supervised release.
Welch appealed the revocation judgment, arguing that
the district court had erred in ordering that the
twenty-two-month terms of supervised release run consecutively.
The Government conceded that the district court had reversibly
erred under 18 U.S.C. § 3624(e) (2012) in ordering that the
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terms of supervised release run consecutively * and moved this
court for a remand to the district court for resentencing. We
granted the Government’s motion, vacated Welch’s sentences, and
remanded for resentencing pursuant to 18 U.S.C. § 3624(e).
On remand, the district court entered an amended
judgment re-imposing the concurrent fourteen- and twelve-month
prison terms and the consecutive fourteen-month prison term and
imposing concurrent twenty-two-month terms of supervised
release. On appeal from the amended judgment, Welch’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal,
but questioning whether the district court abused its discretion
in denying Welch’s motion to appoint substitute counsel and
erred in not “fully vacating” his sentences and convening a
“complete resentencing” hearing and in ordering that the prison
term imposed in the escape case run consecutively to the prison
term imposed in the mail fraud and aggravated identity theft
case. Welch was informed of his right to file a pro se
supplemental brief, but he has not done so. The Government
declined to file a brief. We affirm.
*
Section 3624(e) provides that a “term of supervised
release . . . runs concurrently with any Federal, State, or
local term of . . . supervised release . . . for another offense
to which the person is subject or becomes subject during the
term of supervised release.”
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We review for abuse of discretion a district court’s
ruling on a motion to substitute counsel. United States v.
Perez, 661 F.3d 189, 191 (4th Cir. 2011). In determining
whether a district court has abused it discretion in denying a
motion seeking appointment of substitute counsel, we consider
“three factors: the timeliness of the motion; the adequacy of
the [district] court’s inquiry into the defendant’s complaint;
and whether the attorney/client conflict was so great that it
resulted in a total lack of communication preventing an adequate
defense.” Id. (internal quotation marks omitted). We then
weigh these factors against the district court’s “interest in
the orderly administration of justice.” United States v.
Reevey, 364 F.3d 151, 157 (4th Cir. 2004).
After reviewing the record, we conclude that the
district court did not abuse its discretion in denying Welch’s
motion. With respect to the first factor, Welch delayed in
bringing the motion. This court’s judgment remanding for
resentencing issued on March 1, 2013, and Welch’s resentencing
hearing was scheduled for May 14, 2013. Welch, however, did not
make his motion until after the commencement of the resentencing
hearing. That is, he waited over two months to bring the motion
on the day of resentencing. If the district court had granted
the motion, it may have had to continue the resentencing
hearing. Moreover, Welch has not shown, and the record does not
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reveal, any exigent circumstances justifying his last-minute
request. Accordingly, the motion was not timely. See Perez,
661 F.3d at 191-92 (concluding that defendant who filed motion
for substitution four months after conviction and two weeks
before scheduled sentencing hearing had delayed in bringing the
motion); Reevey, 364 F.3d at 157 (“[A] continuance request for
the substitution of counsel made on the first day of trial is
clearly untimely under all but the most exigent circumstances.”
(internal quotation marks omitted)).
Additionally, upon inquiry, the district court learned
the basis for Welch’s motion, heard and considered his
explanation for why he wanted new counsel appointed, and
addressed his reasons in its oral ruling denying the motion.
Accordingly, the district court’s inquiry into the basis for
Welch’s complaint was adequate. See Perez, 661 F.3d at 192
(concluding that the inquiry factor weighed in the Government’s
favor where district court requested that defendant explain why
he believed he should be appointed new counsel, considered those
reasons, and found current counsel had done an effective job in
representing defendant). Further, the record does not reveal
any basis for concluding that there existed an attorney-client
conflict so great that it prevented Welch from receiving an
adequate defense. Weighing these factors against the district
court’s interest in efficient administration of justice on
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remand, we conclude that the court correctly denied Welch’s
motion to appoint substitute counsel.
Turning to Welch’s challenges to his sentences, we
conclude they are without merit because the mandate rule
precluded the district court from altering the prison sentences
it imposed in 2012. “The mandate rule is a specific application
of the law of the case doctrine.” Volvo Trademark Holding
Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir.
2007). When we remand for resentencing, the mandate rule
precludes the district court from considering issues that were
expressly or impliedly decided by this court on appeal.
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
“In addition, the [mandate] rule forecloses litigation of issues
decided by the district court but foregone on appeal or
otherwise waived, for example because they were not raised in
the district court.” Id.; see Doe v. Chao, 511 F.3d 461, 465
(4th Cir. 2007) (“[A]ny issue conclusively decided by this court
on the first appeal is not remanded, and . . . any issue that
could have been but was not raised on appeal is waived and thus
not remanded.” (internal quotation marks omitted)).
Welch had the opportunity to challenge his prison
sentences in his initial appeal, but he did not do so.
See Volvo Trademark, 510 F.3d at 481 (noting that the plaintiff
failed to raise its claim in earlier proceedings and that “a
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remand proceeding is not the occasion for raising new arguments
or legal theories”). The propriety of those prison terms and
their sequential posture thus was not before the district court
at resentencing. Further, we remanded for resentencing pursuant
to 18 U.S.C. § 3624(e). Accordingly, the district court did not
reversibly err on remand in failing to alter Welch’s revocation
prison sentences or to hold a “complete” resentencing hearing.
Finally, in accordance with Anders, we have reviewed
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm the district court’s
amended judgment. This court requires that counsel inform
Welch, in writing, of the right to petition the Supreme Court of
the United States for further review. If Welch requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Welch.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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