NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0486n.06

No. 10-1377

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL J. MODENA,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN

Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.*

SUTTON, Circuit Judge. A federal jury convicted Michael John Modena for unlawfully

possessing a firearm. Each of the challenges to his conviction and sentence lack merit, and

accordingly we affirm.

I.

In 2008, Michigan State Police officers investigated Modena for filing fraudulent statements

with the Michigan Secretary of State. See Mich. Comp. Laws § 440.9501(6). In accordance with

a state search warrant, officers searched Modena’s residence and discovered a nine-millimeter pistol,

a bolt-action rifle and ammunition.

The Honorable William H. Stafford, Jr., SeniorUnited States District Judge for the Northern

*

District of Florida, sitting by designation.
No. 10-1377

United States v. Modena

A federal grand jury indicted Modena on one count of being a felon in possession of a firearm

and one count of being a domestic-violence misdemeanant in possession of a firearm. 18 U.S.C.

§ 922(g)(1), (9). Modena pleaded not guilty, and a jury found him guilty of both counts. The district

court granted the government’smotion to vacate the § 922(g)(9) conviction, calculated the guidelines

range at 41 to 51 months and imposed a 72-month sentence.

II.

Subject-Matter Jurisdiction. At his arraignment and initial pretrial conference, Modena

challenged the subject-matter jurisdiction of the district court, arguing that the Michigan county that

issued the warrant was not “constitutionallychartered,” R.216 at 9, depriving the court of jurisdiction

over his case. Modena does not press the merits of this jurisdictional argument on appeal but instead

claims that the trial court erred by failing to consider it. That is not true: The magistrate judge

directly rejected the argument, noting that he “d[id]n’t see how any defect in the county’s

structure . . . has any effect on” the court’s jurisdiction. R.216 at 10.

Prosecutorial Misconduct. Several courts have held, and the government agrees, see R.155

at 1–2, that the subdivisions of § 922(g) do not support separate sentences for a single criminal act. 

See, e.g., United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006) (en banc) (per curiam);

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) (separate counts under § 922(g) for possessing

ammunition and a firearm merge for sentencing). A district court thus cannot impose multiple

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United States v. Modena

punishments on a defendant who commits one act of possession yet is both a felon and a domesticviolence misdemeanant.

Modena accuses the government of prosecutorial misconduct for charging him with one

count of § 922(g)(1) and one count of § 922(g)(9), knowing that Modena could not be sentenced on

both counts. Yet the Supreme Court has approved this approach: “the Government may seek a

multiple-count indictment” for duplicitous counts even though “the accused may not suffer two

convictions or sentences on that indictment.” Ball v. United States, 470 U.S. 856, 865 (1985). That

is what happened here, and Modena cites no authority to suggest the constitutional analysis changes

when the prosecutor knows ahead of time that this may happen.

Ineffective Assistance. Modena initially chose to represent himself before the district court,

but on the day of trial requested that his standby counsel, Richard Zambon, represent him. The court

granted Modena’s request, and Zambon agreed to the appointment. In Zambon’s first act as defense

counsel, he stipulated to Modena’s prior felony and domestic-violence misdemeanor convictions. 

Modena claims Zambon provided ineffective assistance when he stipulated to the convictions. We

“typicallywill not review a claim of ineffective assistance on direct appeal except in rare cases where

the error is apparent from the existing record.” United States v. Lopez-Medina, 461 F.3d 724, 737

(6th Cir. 2006). Modena offers no good reason for departing from that practice here. His recourse

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

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United States v. Modena

Hybrid Representation. Modena complains that the trial court violated his right to hybrid

representation by prohibiting him from splitting trial responsibilities with Zambon. Yet the

Constitution provides no such right. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (“Faretta

[v. California, 422 U.S. 806 (1975)] does not require a trial judge to permit ‘hybrid’

representation.”); United States v. Treff, 924 F.2d 975, 979 n.6 (10th Cir. 1991).

Requested Forms. Before trial, Modena requested from the court 79 subpoena forms, 12

subpoena duces tecum forms, 5 blank arrest warrants, 5 deposition forms and several IRS tax forms. 

The district court denied his request and directed him to seek help from his standby counsel to obtain

any necessary forms. Modena argues this decision violated his First Amendment right to access the

courts and his Sixth Amendment right to present a defense. “In orderto state a claim for interference

with access to the courts, however, [an individual] must show actual injury,” Harbin-Bey v. Rutter,

420 F.3d 571, 578 (6th Cir. 2005), and Modena has identified no argument he was unable to raise

or any evidence he could not introduce due to the district court’s order. As for the Sixth

Amendment, the right to present a defense does not include the right to unlimited copies of whatever

forms a defendant wants. No error occurred.

Sentencing. Modena challenges the procedural reasonableness of his sentence on two

grounds: (1) the district court gave no “rationale” or “specific findings of fact” supporting its

enhancements for possessing five firearms and for obstructing justice; and (2) the district court’s

twenty-one-month upward variance lacked support in the record. Both arguments come to naught.

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No. 10-1377

United States v. Modena

Modena challenged his two-level enhancement for possessing five firearms on the ground

that the “grand jury indictment only listed two firearms.” R.206 at 19. The district court correctly

noted that “[f]or the purposes of sentencing . . . the three additional firearms are an entirely separate

matter.” R.206 at 19. “[T]he contemporaneous, or nearly contemporaneous, possession of

uncharged firearms is relevant conduct in the context of a felon-in-possession prosecution.” United

States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008) (internal quotation marks and alterations

omitted); see also U.S.S.G. § 1B1.3. Modena’s presentence report shows that Modena possessed

five firearms. In addition to the two guns that provide the basis for his conviction, Michigan State

Police officers discovered three rifles at Modena’s parents’ residence. Modena’s brother and father

separately told officers that the rifles belonged to Modena, and officers found several of his

belongings nearby.

The same goes for Modena’s obstruction-of-justice enhancement, which he opposed on the

grounds that the police issued “no speeding tickets” to him and that the police reports did not

corroborate that he was driving recklessly. R.206 at 19. The district court found that “your fleeing

from law enforcement . . . is well verified by the records in this case.” R.206 at 22. When officers

approached Modena, he drove off, “almost striking the officers’ unmarked vehicle.” PSR ¶ 22. In

doing so, Modena “recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer,” U.S.S.G. § 3C1.2, properly earning

the enhancement.

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No. 10-1377

United States v. Modena

The record also supports the district court’s upward variance. Modena challenges the district

court’s conclusion that his offense was more serious than the typical felon-in-possession case. In

explaining its sentence, the district court noted that Modena “has over and over again expressed

anti[-]government sentiments, including significantly misguided views about the criminal justice

system and the individuals who operate within it.” R.206 at 42. This conclusion finds support in

the presentence report: Modena filed false UCC claims against two state-court judges, had “militia

ties,” “made threatening statements referenc[ing] a shootout with police and a possible barricade

situation,” fled from police and “made a pointing gesture” toward a police officer “with his thumb

and finger implying they were a gun.” PSR ¶¶ 11–12, 21–23. When he fled from police, he

“attempt[ed] to return to the home where weapons were stored,” which “might well have led to a

serious, dangerous, perhaps even fatal confrontation.” R.206 at 43. The district court reasonably

considered these facts in weighing the § 3553(a) factors.

Modena also complains about the district court’s statement that “I’m not confident that

there’s anything that the criminal justice system has to offer which would provide him with

assistance in . . . the rehabilitation sense.” R.206 at 45–46. Modena believes that the district court

improperly used this as a basis for a higher sentence, but nothing indicates the district court increased

his sentence on this ground. Cf. Tapia v. United States, 564 U.S. __, 131 S. Ct. 2382 (2011). The

district court made the statement while reviewing several of the § 3553(a)factors—in particular “the

need for the sentence imposed . . . to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C.

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No. 10-1377

United States v. Modena

§ 3553(a)(2)(D). Read in context, the court’s statement shows it found the factor irrelevant.

Also unavailing is Modena’s substantive-reasonableness argument—that he committed no

violence and that his age and family ties decrease his likelihood of recidivism. Yet only an abuse

of discretion will allow us to “substitut[e] our judgment for that of the district court,” United

States v. Hairston, 502 F.3d 378, 386 (6th Cir. 2007), and nothing of the sort happened here in view

of Modena’s history of antagonism toward government officials, his efforts to evade capture and his

attempt while fleeing police to return to the house where he had stored three rifles.

Pro Se Arguments. On top of the six issues raised by counsel, Modena submitted a pro se

brief claiming that (1) a different person committed the offenses underlying his § 922(g) conviction;

(2) the AUSA committed prosecutorial misconduct; (3) the attorneys below were in contempt of

court; and (4) the district court deprived him of his speedy trial rights. We generally will not

consider a defendant’s pro se claims when he is represented by counsel, see United States v.

Williams, 641 F.3d 758, 770 (6th Cir. 2011), and Modena’s arguments at any rate change nothing. 

Three of them echo arguments raised by counsel, and Modena’s speedy trial claim lacks any

reference to relevant case law or to the record.

III.

For these reasons, we affirm.

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