FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 16, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15022

Non-Argument Calendar

________________________

D. C. Docket No. 09-00009-CR-JRH-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NATHAN SMITH,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(March 16, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Nathan Smith appeals his convictions and the sentences imposed for bank
robbery and interstate transportation of a stolen motor vehicle. After a review of

the record, we affirm.

On March 3, 2009, Smith entered a bank in Dublin, Georgia, handed the

teller a note demanding money, and warned the teller that he had a gun. The teller

handed him two bundles of bills totaling $2,380 and Smith fled the bank.

Witnesses reported that Smith ran to the rear parking lot after which they saw a

gold van with Florida plates speeding away. The bank manager called 911 and the

teller gave a description of Smith to police. The witnesses also described the van

to police. That afternoon, a police patrol saw a gold van on the interstate with a

driver matching Smith’s description and conducted a stop. A search of the van

revealed the bundled money. Police also determined that the gold van had been

reported stolen from a dealership a month earlier.

Smith was indicted for bank robbery, in violation of 18 U.S.C. § 2113(a),

and interstate transportation of a stolen vehicle, in violation of 18 U.S.C. § 2313.

In May 2009, the court appointed Matthew Waters as Smith’s counsel. The trial

was scheduled for September 14, 2009.

About three weeks before the trial was set to begin, Smith notified the court

by letter that he wanted to remove his court-appointed attorney. A magistrate

judge held an in camera hearing to address the issue and informed Smith of the

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risks of proceeding pro se. Smith stated that he wished to proceed pro se because,

although Waters was a competent attorney, Waters had expressed no confidence in

the case and Smith did not want the jury to notice this lack of confidence. Smith

denied that he was seeking pro se status so that he could raise the representation

issue on appeal. After Smith confirmed that he was waiving his right to

representation freely and voluntarily, the magistrate judge relieved Waters from

representing Smith but instructed him to act as stand-by counsel.

At a pre-trial hearing, the district court reiterated the warnings against selfrepresentation and advised Smith that he could hire his own attorney, accept courtappointed representation, or represent himself. Smith elected to represent himself

and informed the court that he was aware of the risks. After the district court

questioned Smith about his decision, it concluded that Smith had knowingly,

freely, and voluntarily waived his right to counsel.

Jury selection began on September 14 and the trial began on September 23.

The jury convicted Smith of both counts. Smith filed a motion for a new trial,

arguing that the court violated the Speedy Trial Act by conducting trial less than

thirty days after he elected to proceed pro se. He also requested court-appointed

counsel for his post-trial motions. The court appointed counsel but denied the

Speedy Trial Act claim, finding that the time period began to run when Smith first

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appeared more than four months before trial.

One month later, Smith moved to terminate appointed counsel’s

representation, alleging that his appointed attorney, Henry Crane, had misled him

and refused to discuss the case. At a hearing before the same magistrate judge,

Smith requested that he be allowed to proceed pro se at sentencing and on appeal.

The magistrate judge again warned Smith about this decision before relieving

Crane from the representation.

According to the presentence investigation report (PSI), Smith qualified as a

career offender under U.S.S.G. § 4B1.1 because he had two prior convictions for

crimes of violence. Specifically, the probation officer cited a conviction for

aggravated assault on a law enforcement officer and a conviction for terroristic

threats. The records showed that Smith’s aggravated-assault charge resulted from

a fight with officers in which Smith punched an officer with a closed fist. Smith’s

terroristic-threats charge involved a domestic dispute in which Smith entered a

woman’s home through the window and began choking and hitting her until she

stabbed him with a knife in self-defense. Smith’s classification as a career

offender resulted in a sentencing range of 210 to 262 months’ imprisonment. The

statutory maximum sentence for bank robbery, however, was twenty years’

imprisonment.

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Crane filed two objections to the PSI, which he later withdrew. Smith

moved for additional time to research sentencing issues, but the court denied the

motion because Smith had been represented by counsel when the probation officer

issued the PSI, had signed the objections Crane submitted, and had waived the

right to file additional objections outside the applicable time period.

At sentencing, the government requested a sentence at the statutory

maximum, noting Smith’s lengthy criminal history. After considering the

guideline range and the sentencing factors in 18 U.S.C. § 3553(a), the court

sentenced Smith to 240 months for bank robbery and a consecutive 22 months for

the stolen vehicle, for a total sentence of 262 months’ imprisonment. In reaching

this sentence, the court specifically noted Smith’s violent history, his moving state

to state “in an apparent attempt to avoid criminal prosecution,” and that he posed a

significant danger to the public.

Smith now appeals on the grounds that (1) he did not voluntarily waive his

right to counsel at trial and at sentencing; (2) the court violated the Speedy Trial

Act when it held his trial less than thirty days after he decided to proceed pro se;

(3) his prior convictions did not qualify as violent felonies and therefore he was not

a career offender; and (4) his sentence was procedurally and substantively

unreasonable. We address each in turn.

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A. Right to Counsel

Smith first argues that he did not knowingly waive his right to counsel at

trial or at sentencing because the magistrate judge unduly focused on the

inevitability of Smith’s conviction, led him to believe that he had no choice but to

represent himself at trial, and rendered the waiver invalid. He further contends that

he did not validly waive his right to counsel at sentencing because the magistrate

judge overestimated his sentence and did not adequately inform him of sentencing

procedures.

Whether a defendant validly waived his right to counsel at his trial or at his

sentencing is a mixed question of law and fact, which we review de novo. United

States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995); see also United States v.

Evans, 478 F.3d 1332, 1340 (11th Cir. 2007) (regarding waiver of counsel at

sentencing). “On direct appeal, the government bears the burden of proving the

validity of the waiver.” Cash, 47 F.3d at 1088.

“A criminal defendant has a constitutional right to represent himself when he

knowingly, voluntarily, and intelligently elects to do so.” Evans, 478 F.3d at 1340

(quotation omitted). The “ideal method” for the district court to ensure that a

defendant understands the consequences of waiving the assistance of counsel is

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through a pretrial hearing, known as a Faretta inquiry, during which the district

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court informs the defendant of the charges, basic trial procedures, possible

punishments, and hazards of self-representation. United States v. Kimball, 291

F.3d 726, 730 (11th Cir. 2002). “A defendant need only be made aware of the

dangers and disadvantages of self-representation, so that the record will establish

that he knows what he is doing and his choice is made with eyes open.” Id.

(quotation omitted). “The closer to trial an accused’s waiver of the right to counsel

is, the more rigorous, searching and formal the questioning of the trial judge should

be.” Id. at 730 (quotation omitted). But the ultimate test for the validity of the

waiver is the defendant’s understanding, not the court’s advice. Cash, 47 F.3d

1088.

To determine if a waiver was valid, we must look to “the particular facts and

circumstances” of the case. United States v. Garey, 540 F.3d 1253, 1266 (11th Cir.

2008) (quotation omitted). The following factors inform this determination:

1) the defendant’s age, health, and education; 2) the defendant’s

contact with lawyers prior to trial; 3) the defendant’s knowledge of

the nature of the charges and possible defenses and penalties; 4) the

defendant’s understanding of the rules of evidence, procedure and

courtroom decorum; 5) the defendant’s experience in criminal trials;

6) whether standby counsel was appointed and, if so, the extent to

which standby counsel aided in the trial; 7) any mistreatment or

coercion of the defendant; and 8) whether the defendant was

Faretta v. California, 422 U.S. 806, 835 (1975). 1

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attempting to manipulate the trial.

Kimball, 291 F.3d at 730-31.

An indigent defendant does not have an unqualified constitutional right to

counsel of his choice. Garey, 540 F.3d at 1263. We have held that

[w]hen a defendant rejects his court-appointed counsel or otherwise

engages in behavior that creates tension between his right to counsel

and his right to self-representation, a district court does not

compromise the defendant’s free choice by presenting him with

accurate information regarding his lawful choices and asking him to

choose between them. And, when an indigent defendant rejects

competent, conflict-free counsel, he may waive his right to

counsel . . . so long as his decision is made with knowledge of his

options and the consequences of his choice.

Id. at 1265-66.

Here, we conclude that Smith was given proper Faretta warnings and

sufficient information both before trial and before sentencing so that he could

make a knowing, voluntary, and intelligent waiver of counsel. The record reveals

that the magistrate judge questioned Smith about his education, emphasized

counsel’s competency, explained Smith’s choices, warned Smith of the risks of

proceeding pro se, and considered the Kimball factors. The magistrate judge also

noted Smith’s lengthy criminal history and familiarity with the legal system.

Moreover, the district court conducted a similar inquiry and confirmed that Smith’s

desire to proceed pro se was knowing and voluntary.

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The same magistrate judge considered Smith’s motion to proceed pro se at

sentencing and again considered the Kimball factors and gave the necessary

warnings. Smith repeatedly stated that he understood the risks and was electing to

proceed pro se knowingly and voluntarily. Thus, the record shows that the court

made an appropriate Faretta finding that Smith had entered a valid waiver on each

occasion. Accordingly, we affirm as to this issue.

B. Speedy Trial Act

Smith next argues that the district court violated the Speedy Trial Act, 18

U.S.C. § 3161(c)(2), because his trial commenced less than 30 days from the date

that he decided to proceed pro se, even though he had the assistance of appointed

counsel for several months before his pro se election.

We review questions of statutory interpretation de novo. United States v.

Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009), cert. denied, (U.S. Nov. 29, 2010)

(No. 09-8536). The Speedy Trial Act provides in relevant part: “Unless the

defendant consents in writing to the contrary, the trial shall not commence less than

thirty days from the date on which the defendant first appears through counsel or

expressly waives counsel and elects to proceed pro se.” 18 U.S.C. § 3161(c)(2).

We have not addressed the precise issue raised by Smith—whether the

thirty-day period in § 3161(c)(2) begins to run anew when a counseled defendant

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subsequently decides to terminate that representation and proceed pro se. But we

find our decision in United States v. Darby, 744 F.2d 1508, 1519 (11th Cir. 1984),

instructive. In that case, we addressed the situation in which a defendant who was

represented by one attorney at the arraignment was then represented by a different

attorney at the trial that began less than 30 days from the date the second attorney

was appointed. Holding that the statute did not specify the type of counsel to

appear, we concluded that the statutory period began to run when the defendant

first appeared through counsel at his arraignment. Id. at 1520-21. We noted,

to the extent that the interpretation urged by [the defendant] would

enable defendants to postpone their prosecutions by simply changing

lawyers or by retaining lawyers only for limited purposes prior to trial,

it would contravene the major purpose of the Speedy Trial Act, i.e.,

avoiding unnecessary delay.

Id. at 1520 n.5.

Other circuits have concluded that the time begins to run when the defendant

first appears through counsel because, to “interpret the statute otherwise would

enable a defendant to postpone his prosecution by deciding on the eve[ ] of trial

that he wants to dismiss his attorney and represent himself.” United States v.

Moya-Gomez, 860 F.2d 706, 741-42 (7th Cir. 1988) (“[w]hen the defendant first

appears through counsel, his later decision to proceed pro se should not trigger

anew the thirty-day preparation period.”); see also United States v. Williams, 10

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F.3d 1070, 1079 (4th Cir. 1993) (following Moya-Gomez).

The purpose of the Speedy Trial Act would be contravened by allowing

defendants to terminate their counsel voluntarily and thereby postpone their trials.

We therefore agree with the Fourth and Seventh Circuits and conclude that the

thirty-day period was not triggered anew when Smith elected to proceed pro se. In

this case, Smith’s trial took place more than four months after his first appearance

through counsel. Accordingly, we affirm on this issue.

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C. Career-Offender Status

Smith asserts that neither of the prior convictions that were used to qualify

him as a career offender were crimes of violence under the Sentencing Guidelines

because, as defined by state statute, these convictions could be predicated on a

mens rea of recklessness.

We review de novo a district court’s decision to classify a defendant as a

career offender under U.S.S.G. § 4B1.1. United States v. Gibson, 434 F.3d 1234,

1243 (11th Cir. 2006). Arguments raised for the first time on appeal are subject to

plain error review, which requires the defendant show “(1) there is error; (2) that is

Even if we were to conclude that there was a SpeedyTrial Act violation, Smith would have 2

to show prejudice to be entitled to relief. United States v. Edwards, 211 F.3d 1355, 1358 (11th Cir.

2000). A review of the record here reveals that Smith had ample time to prepare for his defense, as

Smith first appeared through counsel more then four months before the trial started. Given the

evidence against Smith, Smith has not shown prejudice.

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plain or obvious; (3) affecting his substantial rights in that is was prejudicial and

not harmless; and (4) that affects the fairness, integrity, or public reputation of the

judicial proceedings.” United States v. Beckles, 565 F.3d 832, 842 (11th Cir.

2009). In this case, although Smith challenged his prior convictions, he did not do

so on factual grounds. Therefore, we review his argument for plain error.

A defendant qualifies as a career offender under the Guidelines if, among

other things, he “has at least two prior felony convictions of . . . a crime of

violence . . . .” U.S.S.G. § 4B1.1(a). A “crime of violence” is defined as:

any offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that – (1) has as an element the use,

attempted use, or threatened use of physical force against the person

of another, or (2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). In determining a crime of violence, “the offense of

conviction (i.e., the conduct of which the defendant was convicted) is the focus of

inquiry.” U.S.S.G. § 4B1.2, comment. (n.2). When determining whether a

conviction can be classified as a crime of violence, “[w]here an ambiguity exists

and the underlying conviction may be examined, the district court can rely on the

‘charging document, written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant assented.’”

Beckles, 565 F.3d at 843 (quoting Shepard v. United States, 544 U.S. 13, 16

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(2005)). In Beckles, this court held,

For purposes of sentencing, the district court also may base its factual

findings on undisputed statements found in the PSI, because they are

factual findings to which the defendant has assented. . . . Facts

contained in a PSI are undisputed and deemed to have been admitted

unless a party objects to them before the sentencing court with

specificity and clarity. . . . Indeed, the defendant’s failure to object to

conclusory statements in the PSI renders those statements undisputed

and permits the sentencing court to rely upon them without error even

if there is an absence of supporting evidence.

Beckles, 565 F.3d at 843-44 (quotations and citations omitted).

Based on the undisputed facts of Smith’s prior convictions contained in the

PSI, we conclude that he was convicted of two prior crimes that involved physical

force. His prior convictions for aggravated assault and terroristic threats were thus

crimes of violence as defined in the Sentencing Guidelines and Smith was correctly

sentenced as a career offender.

D. Reasonableness

Finally, Smith argues that his total sentence was procedurally and

substantively unreasonable.

We review a sentence imposed by a district court for reasonableness, using

an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278

(11th Cir. 2009). We utilize a two-part process: First, the district court must

consult and correctly calculate the sentencing range recommended by the

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Guidelines. Second, the district court must fashion a reasonable sentence by

considering the factors enumerated in 18 U.S.C. § 3553(a). United States v.

McBride, 511 F.3d 1293, 1297 (11th Cir.2007).

When reviewing for procedural reasonableness, we ensure that the district

court (1) properly calculated the Guidelines range, (2) treated the Guidelines as

advisory, (3) considered the § 3553(a) factors, (4) did not select a sentence based

on clearly erroneous facts, and (5) adequately explained the chosen sentence. Gall

v. United States, 552 U.S. 38, 51 (2007). Moreover, 18 U.S.C. § 3553(c) requires

the district court to state its reasons for the sentence in open court. 18 U.S.C.

§ 3553(c)(1). In complying with § 3553(c), “[t]he sentencing judge should set

forth enough to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007). The district court is

not required to discuss each of the § 3553(a) factors or mention on record that it

has explicitly considered each factor. United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005).

After we determine that the district court’s sentencing decision is

procedurally sound, we then review the substantive reasonableness of the sentence

for an abuse of discretion. Gall, 552 U.S. at 51. “[T]here is a range of reasonable

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sentences from which the district court may choose.” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). We consider the final sentence in its entirety in

light of the § 3553(a) factors. United States v. Thomas, 446 F.3d 1348, 1351 (11th

Cir. 2006). The district court is “permitted to attach great weight to one factor over

others.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (quotation

omitted). In arriving at a reasonable sentence, the district court shall impose a

sentence that is “sufficient, but not greater than necessary,” to comply with the

need for the sentence imposed:

(A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (B) to afford

adequate deterrence to criminal conduct; (C) to protect the public

from further crimes of the defendant; and (D) 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. § 3553(a)(2). Other factors that the sentencing court should consider are

the following: (1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the kinds of sentences available; (3) the

Sentencing Guidelines range; (4) pertinent policy statements of the Sentencing

Commission; (5) the need to avoid unwanted sentencing disparities among

similarly situated defendants; and (6) the need to provide restitution to victims.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). The burden of establishing

that the sentence is unreasonable, considering both the record and the § 3553(a)

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factors, is on the party challenging the sentence. Talley, 431 F.3d at 788.

In this case, we conclude that Smith’s total sentence was procedurally

reasonable. The district court correctly determined the guidelines range, as

discussed above, considered the parties’ arguments and the § 3553(a) factors, and

explained its reasons for imposing the sentence.

The sentence was also substantively reasonable. The court noted Smith’s

lengthy criminal history and the danger he posed to society. Smith has offered

nothing to show that the sentence was greater than necessary to meet the § 3553(a)

factors.

For the foregoing reasons, we affirm Smith’s convictions and sentences.

AFFIRMED.

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