NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0486n.06 No. 10-1377 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. MI CHAEL

J . MODENA, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Be fore : SUTTON and WHI TE, Circuit J udg es; STAFF ORD, District J udg e. * SUTTON, Circuit J udg e. A fede ral jury convicted Michae l J oh n Modena for unlawfully possessing a firea

rm. Eac h of the chall en ges to his conviction and sentenc e lack merit, and

acc ording ly

we a ffirm.

I
.
I n 2008, Michig an State Police office rs investigated Modena for filing fra udulent statements with the Michig an Secr etar y of State. See Mich. Comp. L aws § 440.9501(6). I n acc ordanc e with

a state sear ch war

rant , o f f ic ers sear ched Modena’ s residenc e and discovere d a nine-millimeter pistol, a bolt-ac tion rifle and a

mmuniti on.

The Honora

ble Wil liam H. Stafford, J r., Se n ior United States District J udg e for the Norther n * District of F lorida, sitting by desig nation.No. 10-1377

United States v. Mode na A fede ral g rand jury indicted Modena on one count of being a felon in possession of a firea rm and one count of being a domestic-violence misdemeana nt in possession of a firea rm . 1 8 U.S.C. § 922(g )(1) , (9). Modena pleade d not g uilty , and a jury found him g uilty of both counts. The district court g rante d the g o v e r

n me n t’ s mo ti o n to vacate the § 922(g )(9) conviction, calc ulated the g uidelines rang e at 41 to 51 months and imposed a 72- month sentence

.
I I
. Subject-M

atter Jurisdiction

. At his arr aig nment and initial pretria l confe renc e, Modena challeng ed the subject-matter jurisdiction of the district court, arguing that the Michig an county that issued the w a

r r a n t w a s not “constitutionally char tere d,” R.216 at 9, depriving the court of jurisdiction

over his case . Modena does not press the merits of this jurisdictional argument on appea l but instead claims that the trial court err ed by failing to consider it. That is not true: The m agi s t ra t e j u d ge direc tly reje cted the argument, noting that he “d[id] n’t see how any defe ct in the county ’s structure . . . has any

eff ect on” the cour

t’s jurisdiction. R.216 at 10.
Prosecutorial Misconduct. Severa l courts have held, and the g overnme nt ag ree s, see R.155 at 1–2, that the subdivisions of § 922(g ) do not support separ ate sentenc es for a single criminal act. S ee, e.g. , United States v. Richardson , 439 F.3d 421, 422 (8th Cir. 2006) (en banc) (per curia m ); United States v. Munoz-Romo , 989 F.2d 757, 759–60 (5th Cir. 1993); cf. United States v. Throneburg , 921 F.2d 654, 657 (6th Cir. 1990) (sepa rate counts under § 922(g ) for possessing ammunition and a firea

rm merg e for sentenc ing)

. A district court thus cannot impose multipl e

- 2 -No. 10-1377

United States v. Mode na punishments on a defe ndant who commits one act of possession y et is both a felon and a domesticviolence misdeme anant.
Modena acc uses the g overnme nt of prosec utorial misconduct for ch ar gi n g h im with one count of § 922(g )(1) and one count of § 922(g )(9) , knowing that Modena could not be sentenc ed on both counts. Yet the Supreme Court has approve d this ap p ro ac h : “the Gover nment may seek a multipl e-c ount indictment” for duplicitous coun t s ev en though “the acc used may not suffe r two convictions or sentenc es on that indictment.” Ball v. United States , 470 U.S. 856, 865 (1985). That is what happene d here , and Modena cites no authority to sug g est the constitutional analy sis chang es when the pr osecutor know s ahea d of time that this may happen. Ineffec tive Assistance

. Modena initially chose to repr esent himself befor e the district court, but on the day of trial reque sted that his standby counsel, Richard Z ambon, repr esent him. The court g rante d Modena’ s reque st, and Z ambon ag ree d to the appointment. I n Z ambon’s first act as defe nse counsel, he stipulated to Mode na’s prior felony and domestic-violence misdemeanor convictions. Modena claims Z ambon provided ineffe ctive assistance when he stipulated to the convictions. We “ty pically will not revie w a claim of ineffe ctive assistance on direc t appea l except in rar e case s wher e the err or is a

ppare nt f rom the exis ting rec ord.” United States v. Lopez-Me dina , 461 F.3d 724, 737 (6th Cir. 2006). Modena offe rs no g ood rea son for depar ting from that prac tice here

. His rec ourse is to file a motion pursuant to 28 U.S.C. § 2255.

- 3 -No. 10-1377

United States v. Mode na Hybrid Repr es en t a t i o n . Modena complains that the t rial court violated hi s rig ht to hy brid repr esen t at i o n by prohibiting him from splitt ing trial responsibilities with Z ambon. Yet the Constit ution provides no such rig ht. See McKaskle v. W iggins , 465 U.S. 168, 183 (1984) (“ Faretta [ v. Calif ornia , 4 2 2 U. S

. 8 0 6 (1975)] does not require a trial judge to permit ‘hy brid’ repr esentation.”); United States v. Treff , 924 F.2d 975, 979 n.6 ( 10th Cir. 1991). Reque sted Forms. Be fore trial, Modena re q u est ed from the court 79 subpoena forms, 12 subpoena duces tecum forms, 5 blank arr est war rants, 5 deposition forms and sever al I RS tax forms. The district court denied his reque st and direc ted him to seek help from his standby counsel to obtain any nece ssary forms. Modena argues this decision violated his First Amendment rig ht to acc ess the courts and his Six th Amendment rig ht to prese nt a defe nse. “In order to state a claim for interfe renc e with acc ess to the courts, howeve r, [an individual] must show actua l injury ,” Harbin-Bey v. Rutter , 420 F.3d 571, 578 ( 6th Cir. 2005), and Modena has i dentified no arg

ument he wa s unable to ra ise

or any evidenc e he could not in t ro d u ce due to the district court’s order

. As for the Six th Amendment, the rig ht to prese nt a defe nse does not include the rig ht to unlimit ed copies of whateve r forms a de fenda

nt wants. No er

ror oc curr ed.
Sentenc ing
. Modena challeng es the proce dural rea sonablene ss of his sentenc e on two g rounds: (1) the district court g ave no “rationale” or “s p ecific finding s of fac t” supporting its enhanc ements for possessing five firearm s and for obstructing justice; and (2) the district court’s twenty -one- month upwar d varia nce lacke d support in the rec ord. Both arg uments come to naug ht.

- 4 -No. 10-1377

United States v. Mode na Modena challeng ed his two-leve l enhanc ement for possessing five firearms on the grou nd that the “g rand jury indictment only listed two firea rms.” R.206 at 19. The district court corr ectly noted that “[f]or the purposes of sentenc ing

. . . the three additional firea rms are an entirely separ ate matter.” R.206 at 19. “[T] he contempora neous, or n ea rl y contempora neous, possession of unchar g ed firea

rms is rele vant conduct in the context of a felon-in- possession prosec ution.” United States v. Phillips , 516 F.3d 479, 483 (6th Cir. 2008) (i nterna l quotation marks and alterations omitted); see also U.S.S.G. § 1B1.3. Modena’ s prese ntence repor t shows that Modena possessed five firea rms. I n addition to the two g uns that provide the basis for his c onviction, Mic higa n State Police office rs discovere d three rifles at Modena’ s pare nts’ residenc e. Modena’ s brother and fathe r separ ately told office rs that the rifles belong ed to Modena, and office rs found sever al o f his belong ings ne arby

. The same g oes for Modena’ s obstruction-of- justice enhanc ement, which he opposed on the g rounds that the poli ce i s s ued “no speeding tickets” to him and that the police repor ts did not
corr oborate that he was driving rec klessly

. R.206 at 19. The district court found that “y our flee ing from law enfor ceme nt
. . . is well verifie d by the rec ords in this case .” R.206 at 22. When office rs approa ched Modena, he drove off, “almost striking the office rs’ unmarke d vehicle.” PSR ¶ 22. I n doing so, Modena “re cklessly cre ated a substantial risk of death or serious bodily injury to a nother person in the course of flee ing from a law enfor ceme nt office r,” U.S.S.G. § 3C1.2, proper ly ear ning the enha nceme nt.

- 5 -No. 10-1377

United States v. Mode na The rec ord also supports the district court’s upwar d varia nce. Modena challeng es the district court’s conclusion that his offe nse was more serious than t he ty pical felon-in-possess i o n case . I n explaining its sentenc e, the district court noted that Modena “has over and over ag ain ex p re s sed anti[-] g overnme nt sentiments, inclu d i n g s i g nificantly misguided views about the criminal justice sy stem and the individuals who operate within it.” R.206 at 42. This conclusion finds support in the prese ntence repor

t: Modena filed false UCC claims ag ainst two state-c ourt judge s, had “militia ties,” “made threatening statements ref er en c[ i n g] a shootout with police and a possible barr icade situation,” fled from police and “made a pointing g esture” toward a police office r “with his thumb and fing er imply ing they wer e a g un.” PSR ¶¶ 11

– 1 2 , 2 1–23. When he fled from police, he “attempt[ed] to return to the home wher e wea pons wer e stored,” which “mig ht well have led to a serious, dange rous, perhaps eve n fa t al confrontation.” R.206 at 43. The dist rict court rea sonably considere d these fa cts in weig hing the § 3553(a) fac tors.
Modena also complains about the district court’s statement t h at “I ’m not confide nt that there ’s any

thing that the criminal justice sy stem has to offe r which would provide hi m with assistance in

. . . the reha

bilitation sense.” R.206 at 45–46. Modena believes that the district court improperly used this as a basis for a highe r sentenc e, but nothing indicates the district court incre ased his se ntence on this g round. Cf. Tapia v. United States , 564 U.S. __, 131 S. Ct. 2382 (2011). The district court made the statement while revie wing sever al of the § 3553(a) fac tors—in particula r “the need f or the sente nce imposed . . . to provide the def endant with nee ded educ ational or voc ational training , medical car e, o r other corr ectional trea tment in the most eff ective manner .” 18 U.S.C.
- 6 -No. 10-1377

United States v. Mode na § 3553(a) (2)( D). Read in context , the court’s statement shows it found the fac tor irrele vant. Also unavailing is Modena’ s substantive-re asonable ness argument—that he committed no violence and t hat hi s ag e and family ties decr ease his likelihood of rec idivism

. Yet only an abuse of discretio n wi l l allow us to “substitut[ e] our judgme nt for that of the district court,” United States v. Hairston , 502 F.3d 378, 386 (6th Cir. 2007), and nothing of the sort happene d here in view of Modena’ s history of antag onism toward g overnme nt officia ls, his eff orts to evade captur e and his attempt while flee ing police to return to the house wher e he ha d stored thre e rifle s.
Pro Se Arguments. On t op of t he si x issues raised by counsel, Modena

submitt ed a pro se brief claiming that (1) a differ ent person committed the offe nses underly ing his § 922(g ) conviction; (2) the AU S A committed prosec utorial misconduct; (3) the attorney s below wer e in contempt of court; and (4) the district court d ep ri v ed him of his speedy trial rig hts. We g ener ally will not consider a defe ndant’s pro se claims when he is repr esente d by counsel, see United States v. W illiams , 641 F.3d 758, 770 (6th Cir. 2011), and Modena’ s arguments at any rate chang e nothing. Three of th em ec h o ar g uments raised by counsel, and Modena’ s speedy trial claim lacks any ref ere nce to r eleva

nt case law or to the r ecor d.

I I I
. For these re asons, we a ffirm.

- 7 -