11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2011

(Submitted: April 18, 2012 Decided: May 16, 2014

Amended: June 18, 2014)

Docket Nos. 11-5462-cr(L), 10-3393-cr(con)

________________________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

- v. -

DESMOND KERR,

Defendant-Appellant.

________________________________________________________________________

Before: 

KEARSE, PARKER, and HALL, Circuit Judges.

Appeal from the August 6, 2010 judgment of the United States District Court for the 

Northern District of New York (Glenn T. Suddaby, District Judge), convicting Appellant,

following his mid-trial guilty plea, of possession with intent to distribute 

methylenedioxymethamphetamine and sentencing him principally to 121 months‟ 

incarceration. We affirm for the reasons set forth below.

AFFIRMED.

KATHERINE ALFIERI, Law Offices of Katherine Alfieri,

New York, NY, for Defendant-Appellant Desmond 

Kerr.

RAJIT S. DOSANJH, Assistant United States Attorney

(Ransom P. Reynolds, Assistant United States 

Attorney, on the brief), for Richard S. Hartunian, 

United States Attorney for the Northern District

of New York, Syracuse, NY, for Appellee United 

States of America. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

2

HALL, Circuit Judge:

Defendant-Appellant Desmond Kerr is a Canadian citizen who was arrested by 

United States customs authorities after they searched his vehicle at the U.S.-Canadian border 

and discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine 

(“MDMA”), a Schedule I controlled substance. Kerr was charged with one count of 

knowingly and intentionally possessing MDMA with intent to distribute, in violation of 18 

U.S.C. § 841(a)(1) and (b)(1)(C). A turbulent pretrial period ensued, during which Kerr 

ceased communicating with and then effectively fired his first two appointed attorneys,

insisted on pressing several ill-advised theories of defense to the exclusion of all others, and 

underwent a court-ordered competency examination that ultimately found him competent to 

stand trial. Kerr elected to represent himself at trial but, with the assistance of a newly 

appointed attorney, pled guilty midway through. After entering his plea, Kerr resumed his 

prior behavior: he again refused to communicate with counsel and filed numerous pro se

motions in which he sought to withdraw his plea, press his theories of defense, and obtain 

the assistance of new counsel. At sentencing, Kerr‟s attorney expressed concern about 

Kerr‟s mental stability and represented that Kerr had been unable to help him prepare for 

sentencing; the district court also commented on Kerr‟s belligerent and counterproductive 

behavior. Ultimately, the district court sentenced him principally to 121 months‟ 

imprisonment, rejecting his several sentencing arguments. 

Through new counsel, Kerr argues on appeal that his “erratic” and “irrational” 

behavior following the entry of his plea required the district court to hold a competency 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

3

hearing before imposing sentence and that he was deprived of his Sixth Amendment right to 

counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw 

his plea. He also challenges several aspects of the sentence imposed. In a separate pro se

brief, Kerr contends that the district court erroneously denied his pro se motion to withdraw 

his plea and challenges several pre-plea aspects of his prosecution and trial. We affirm. 

BACKGROUND

In February 2009, Customs and Border Protection officers searched Kerr‟s vehicle as 

he attempted to enter the United States from Canada at the Alexandria Bay, New York port 

of entry. In the course of the search, the officers discovered approximately seven thousand 

pills containing MDMA. The officers found the pills in two locations: four thousand were

concealed in black packages between the vehicle‟s front seats, while the remaining three 

thousand were stowed within the vehicle‟s rear interior paneling. Together, the seven 

thousand pills weighed 2,068 grams. Kerr was arrested and charged with one count of 

possession with attempt to distribute MDMA. 

I. Pretrial Proceedings

Between his February 2009 arraignment and his April 2010 trial, Kerr cycled through 

a succession of attorneys and inundated the district court with numerous pro se requests for 

its assistance with his several theories of defense. First, in September 2009, Kerr moved to 

replace the Federal Public Defender initially assigned to his case. The district court granted 

the motion and, after Kerr expressed dissatisfaction with a second attorney, appointed 

Jeffery DeRoberts as new counsel. Several weeks later, DeRoberts informed the court that 

Kerr was unhappy with his representation and had requested that the court appoint a 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

4

different attorney known to Kerr. The district court denied this request, explaining that 

Kerr was not entitled to choose assigned counsel. At a subsequent conference and 

suppression hearing held in October 2009, Kerr alleged that the government had improperly 

destroyed a number of the recovered MDMA pills, that the assigned Assistant United States 

Attorney (“AUSA”) had committed perjury, and that his various attorneys had refused to file 

motions addressing these issues.1 When Kerr continued to interject and press these pro se

arguments, the district court halted the proceedings to inquire whether he understood the 

charge against him, the potential penalties he faced, and the importance of his attorney. 

Kerr confirmed that he was charged with possession with intent to distribute, stated that he 

understood the penalties, and acknowledged that his lawyer had knowledge of the law and 

court procedure he did not possess.

On December 9, 2009, some five days before the scheduled trial date, the district 

court held a final pretrial conference during which Kerr represented that DeRoberts was 

“ineffective” and in “dereliction of duty.” Kerr repeatedly stated that he did not want 

DeRoberts to speak on his behalf or appear at trial, and that he wished to represent himself. 

The court acknowledged Kerr‟s right to self-representation and stated that DeRoberts would 

 

1 In December 2009, Kerr filed a pro se notice of appeal from the district court‟s denial of his 

suppression motion and his motion to dismiss the indictment due to the government‟s

destruction of evidence. The resulting interlocutory appeal remained pending in this Court 

without substantive filings by either party until October 2011, when the government moved 

to dismiss the appeal as taken from a non-final order. By that time, however, the 

interlocutory appeal had been designated the lead case and consolidated with Kerr‟s August 

2010 appeal from his final judgment of conviction, which by then was fully-briefed. In 

February 2012, we denied the government‟s motion to dismiss, but construed Kerr‟s 

arguments made in the interlocutory appeal as relating to his 2010 appeal from the final 

judgment. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

5

be available at trial as standby counsel. Kerr objected to this proposal, informing the court

that he wanted to call DeRoberts as a defense witness to testify about the government‟s 

“perjury” as to the existence of certain surveillance videotapes of the border crossing. Kerr 

also requested that the court subpoena several other witnesses, including the then-Chief 

Judge of the Northern District of New York and the then-interim United States Attorney for 

the Northern District of New York. Kerr refused to explain his reasons for subpoenaing 

these last witnesses, stating only that the court would “find out” on the date of trial. 

Expressing concern with Kerr‟s “wilder and wilder” requests and “self-destructive” 

decisions, the district court adjourned the trial and ordered him, pursuant to 18 U.S.C. 

§ 4241(a), to undergo a mental competency examination. After examining Kerr, 

psychologists at the Federal Medical Center (“FMC”) found him competent to stand trial

and presented those results in a forensic medical report dated March 19, 2010. The report 

described Kerr as “an obstinate, strong-willed, and opinionated individual” whose 

dissatisfaction with his attorneys stemmed not from “psychotic symptoms,” but rather from 

“his belief that his attorneys ha[d] not done sufficient work to mount an adequate defense.” 

The report also explained that Kerr‟s defensive strategy of accusing the AUSA of perjury, 

while possibly imprudent, was not evidence of incompetence. In sum, the report concluded 

that Kerr was able to assist his attorney in preparing a defense if he so chose, and that there 

was no “objective evidence” that he suffered from “a mental disorder which would impair 

his ability to understand the nature and consequences of the court proceedings against him.” 

The district court reconvened on March 31, 2010. On that date, Kerr did not permit

DeRoberts to sit with him at counsel table. He adamantly expressed his desire to represent 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

6

himself with the assistance only of standby counsel, insisting that the results of the 

competency evaluation proved his ability to do so. The court granted DeRoberts‟s resulting 

motion to withdraw on the ground that there had been a complete breakdown in attorneyclient communication. In his stead, the court appointed Robert Wells as standby counsel

and directed Kerr to consult with him. At the close of the conference, the court scheduled 

trial to begin on April 14, 2010 and explained to Kerr that it would ask him a series of 

questions at the beginning of trial to ensure he fully understood the implications of selfrepresentation. 

II. Trial and Guilty Plea

On the scheduled trial date, Kerr appeared with Wells as standby counsel. Before 

jury selection, the district court stated that it had previously “advised [Kerr] of the 

disadvantages of representing [himself]” and inquired of Kerr whether that remained his 

intention. Kerr confirmed that it was. The court cautioned him that self-representation was 

“very difficult” and that, despite his pro se status and lack of legal training, he was required to 

follow the court‟s instructions and comply with the rules of evidence and procedure. When 

Kerr renewed his request to subpoena three witnesses—his former attorney, the former 

interim United States Attorney, and the Chief Judge of the Northern District—the court

stated that it would issue the subpoenas only if Kerr explained how their testimony was 

relevant to the pending criminal charge. Kerr demurred, claiming that he should not be 

required to disclose his theory of defense. Again, the court flagged Kerr‟s lack of legal 

training, explaining, inter alia, that any testimony of these witnesses would “certainly” be 

hearsay and the fact that his former attorney represented Kerr in the matter did not make 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

7

the attorney “a witness with any relevant testimony to offer in this case.” The court later 

urged Kerr to consult with Wells concerning issues of jury selection. 

On April 14, the case proceeded to trial at which Kerr selected a jury in consultation 

with Wells; gave an opening statement premised on his theories that the AUSA committed 

perjury, the government destroyed evidence, and he was prevented from calling his chosen 

witnesses; extensively cross-examined government witnesses; and made relevant objections. 

Upon the close of the government‟s evidence on April 16, however, Kerr informed the court 

that he intended to plead guilty to the charge. The following exchange took place:

THE COURT: Now, have you agreed to allow Mr. Wells to 

represent you in this matter, for this --

THE DEFENDANT: Yes, your Honor.

THE COURT: -- in this capacity? Because there are questions 

that I‟m going to need to ask him and he needs to advise you 

and hopefully he‟s talked to you about the Sentencing 

Guidelines . . . . 

THE DEFENDANT: Yes. 

Appellant App‟x at 96. Following this colloquy, the district court informed Kerr that it was 

“going to at this point accept the fact that Mr. Wells is your attorney.” 

The court conducted a change of plea hearing that same day.2 Kerr testified that he 

was not under the care of a doctor or psychiatrist and that his ability to understand the 

proceeding was not impaired. Attorney Wells also stated that he was satisfied that Kerr‟s 

plea was given freely and voluntarily. Based upon these representations and Kerr‟s other 

responses during its Rule 11 inquiry, the court determined that he was “competent and 

 

2 Although Kerr did not plead guilty pursuant to a formal plea agreement, he agreed during 

the change of plea hearing to withdraw his December 2009 interlocutory appeal from the 

denial of his suppression motion and motion to dismiss. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

8

capable of entering an informed plea.” As to the factual basis for the plea, the government 

explained that its proof at trial had shown that the Customs and Border Protection officers 

discovered pills containing MDMA in two locations of Kerr‟s vehicle and that, in total, the 

recovered pills weighed 2,068 grams. Kerr confirmed this assessment of the evidence, 

further explaining that he had entered into an agreement with an unidentified individual 

whereby the individual would place something in his parked vehicle and then, in exchange 

for $5,000, Kerr would drive the vehicle from Canada to New York. After accepting the 

plea, the district court told Kerr that the Probation Department would interview him in 

connection with his presentence report and that “Wells can be there with you if you like, 

that‟s up to you and him.” 

III. Post-Plea Proceedings & Sentencing

 Several days after pleading guilty, Kerr filed a pro se motion to withdraw his plea—

the first in a succession of pro se motions he filed in the post-plea, pre-sentencing phase of 

the case. Kerr asserted in the motion that he wanted to “take back” his plea to permit the 

“the jury [to] find [him] guilty or not guilty.” The district court denied his request on April 

26, concluding that Kerr‟s plea allocution satisfied the requirements of Federal Rule of 

Criminal Procedure 11(b), he had not shown a “fair and just” reason for withdrawing the

plea, and he had not accounted for the prejudice that would inure to the government and the 

court if his request were granted. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

9

On May 14, Kerr requested the appointment of counsel to assist him with, inter alia, a

motion to withdraw his guilty plea.3 The following day, he again moved to withdraw his 

plea, asserting, without providing specifics, that the AUSA and government witnesses had 

perjured themselves, he had received ineffective assistance of counsel, there were “valid 

grounds for withdrawing [his] guilty plea,” and he had a “claim of innocence.” Kerr 

reiterated his request for new counsel in a June 22 letter and in a July 7 pro se motion to 

dismiss the charges due to the government‟s alleged perjury and destruction of evidence. In 

his June 22 letter, Kerr claimed, for the first time, that “standby counsel” provided 

ineffective assistance by “instructing [him] to plea[d] guilty.” The court denied all pending 

motions by order entered on July 22, ruling that both Kerr‟s request for new counsel and his 

renewed motion to withdraw his plea were “unsupported by a showing of cause,” and noting 

that in April it had denied Kerr‟s first motion to withdraw his guilty plea.

4

While these events unfolded, the Probation Department submitted a presentence 

report in which it held Kerr accountable for the entire quantity of MDMA pills found in the 

vehicle. Based on a total offense level of 32 and Kerr‟s criminal history category of I, the 

Probation Department calculated Kerr‟s advisory sentencing range under the United States 

Sentencing Guidelines as 121 to 151 months‟ imprisonment. It also noted that Kerr had 

 

3 Wells informed Kerr before the submission of this letter that, given his affirmations during 

the change of plea hearing regarding the knowing and voluntary nature of Kerr‟s plea, he 

was “prohibited” from assisting Kerr with the motion to withdraw the plea. Wells also 

urged Kerr to “return to representing [himself] pro se” so that Wells could advise him as he 

proceeded. 

4 The court also denied Kerr‟s several pro se motions to set aside the “jury verdict” and to 

vacate his conviction on various grounds. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

10

refused to meet with the Probation officer tasked with preparing the report. In a pro se letter

sent shortly before sentencing, Kerr explained that although he had wanted to meet with the 

Probation officer, he did not wish to do so with Wells present because Wells had “lied” to 

him during trial.

For his part, Wells explained in a sentencing memorandum submitted on Kerr‟s 

behalf that Kerr had refused to meet with him to prepare for sentencing; he also expressed 

his concern with Kerr‟s “mental stability.” Wells took issue with the FMC psychologists‟ 

competency determination, representing that although he had no “training in mental health 

diagnosis,” Kerr‟s actions over the course of the prosecution were “not that of a rational and 

undisturbed mind” and he had been unable to help Wells prepare for sentencing. Wells 

further advised the court that he could not ethically help Kerr with the motion to withdraw 

the plea because his affirmation at the change of plea hearing that Kerr pled guilty 

voluntarily created a “classic and irremediable conflict” with respect to that motion. He 

therefore urged the court to appoint new counsel for purposes of that motion. Finally, 

Wells argued that Kerr should be held accountable only for the four thousand MDMA pills

found between the front seats of his vehicle because there was no evidence he knew about

the pills hidden within the rear interior paneling. 

 The court imposed sentence on August 4, 2010. Although Wells appeared at the 

hearing, he informed the court that Kerr had instructed him not to speak. In his statement 

to the court, Kerr again expounded at length upon his theories that the government

improperly destroyed a number of the MDMA pills, the AUSA committed perjury, and the 

court improperly deprived him of the opportunity to call his chosen witnesses at trial. The 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

11

court interjected, stating that Kerr was “hung up on . . . insignificant . . . details” irrelevant 

to sentencing. It went on: “I cannot figure you out, sir, which is why I had a mental exam 

done. They tell me you‟re competent and capable but you are the most belligerent individual 

I have ever met in my life . . . , [and] I can‟t figure out why.” The court further asserted that 

Kerr‟s refusal to accept the advice of an attorney had “made [his] situation so much worse.” 

After obtaining Kerr‟s permission to speak, Wells again expressed his concerns about Kerr‟s 

mental state and reiterated his disagreement with the FMC psychologists‟ competency 

determination. He also argued that the court should recognize Kerr‟s minor role as a 

“courier” or “drug mule.” 

After hearing from the government, the court adopted the facts contained in the 

presentence report and found, consistent with the calculations of the Probation Department,

that Kerr‟s Guidelines range of imprisonment was 121 to 151 months. The court sentenced 

Kerr to 121 months‟ imprisonment, explaining that it found the sentence “fair, just, and 

sufficient but not greater than necessary to comply with the goals of sentencing set forth in 

18 U.S.C. 3553(a).” The court emphasized that, had Kerr been “more cooperative” with 

counsel and the Probation Department, it may have been presented with a “fuller record” 

justifying the imposition of a lesser sentence, especially given his lack of criminal history. 

Once again, the court remarked that it could not understand Kerr‟s intransigent behavior. 

Kerr timely appealed the court‟s August 6, 2010 judgment. Approximately one week later, 

he submitted a letter reiterating that Wells was “standby counsel” only and did not speak on 

his behalf.

 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

12

DISCUSSION

I. Kerr’s Competency

Due process “„prohibits the criminal prosecution of a defendant who is not 

competent to stand trial.‟” United States v. Quintieri, 306 F.3d 1217, 1232 (2d Cir. 2002) 

(quoting Medina v. California, 505 U.S. 437, 439 (1992)). A defendant is not competent, and

the criminal proceeding against him may not progress, when his “mental condition is such 

that he lacks the capacity to understand the nature and object of the proceedings against 

him, to consult with counsel, and to assist in preparing his defense.” Drope v. Missouri, 420 

U.S. 162, 171 (1975). This constitutional right is safeguarded by 18 U.S.C. § 4241, which 

requires the district court, upon its own motion if necessary, to hold a competency hearing 

“if there is reasonable cause to believe that the defendant may presently be suffering from a 

mental disease or defect rendering him mentally incompetent to the extent that he is unable 

to understand the nature and consequences of the proceedings against him or to assist 

properly in his defense.” 18 U.S.C. § 4241(a); see also United States v. Zhou, 428 F.3d 361, 379 

(2d Cir. 2005) (noting that the standards under due process and § 4241 are “essentially 

equivalent” (citing Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992))). 

The existence of “reasonable cause” is a highly particularized assessment that “„varies 

in each case.‟” Zhou, 428 F.3d at 379 (quoting United States v. Nichols, 56 F.3d 403, 414 (2d 

Cir. 1995)). We have identified several factors upon which the district court may rely when

making the reasonable cause determination, including psychiatric reports assessing the 

defendant‟s competence, see Zhou, 428 F.3d at 379, and the court‟s own “observations of the 

defendant‟s demeanor during the proceeding,” Quintieri, 306 F.3d at 1233. See also Drope, 420 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

13

U.S. at 180 (explaining that there are “no fixed or immutable signs which invariably indicate 

the need for further inquiry to determine [the defendant‟s] fitness to proceed”). The right 

not to be prosecuted while incompetent “spans the duration of a criminal proceeding.” 

United States v. Arenburg, 605 F.3d 164, 168 (2d Cir. 2010). A district court must therefore 

“„always be alert to circumstances suggesting a change that would render the accused unable to 

meet the standards of competence to stand trial,‟” id. at 168-69 (quoting Drope, 420 U.S. at 

181) (emphasis in original), an obligation that “takes on increased significance where, as here, 

a criminal defendant elects to proceed pro se,” id. at 169. We review a district court‟s decision 

not to order a competency hearing for abuse of discretion. Id.

Here, the district court acted well within its discretion when it declined to order a 

competency hearing before accepting Kerr‟s April 16, 2010 guilty plea. Although the court 

was obviously troubled by Kerr‟s pretrial behavior, it was entitled to rely on the March 19, 

2010 forensic report that found him competent to understand the proceedings and capable 

of working with his attorney if he so chose. Zhou, 428 F.3d at 379. In addition, the district 

court had the benefit of observing Kerr during the March 31 pretrial conference and the 

April 14-16 trial. The transcripts of those proceedings show that although he was unfamiliar 

with the law and court procedure, Kerr vocally advocated on his own behalf, made relevant 

objections during the government‟s direct examination of witnesses, and consulted with 

standby counsel when necessary. During the change-of-plea hearing, Kerr also responded 

cogently to the district court‟s inquiries and displayed his understanding of the charge. In 

short, we discern no unusual circumstances that should have given the district court pause 

before accepting Kerr‟s plea. See Quintieri, 306 F.3d at 1233; see also Wojtowicz v. United States, 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

14

550 F.2d 786, 791 (2d Cir. 1977) (where a defendant has been found competent following a 

court-ordered evaluation, a district court generally is “not required to hold a competency 

hearing before accepting a plea”); Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976) 

(district court under no obligation to question a defendant‟s competency when his “answers 

to the court‟s Rule 11 inquiries, his demeanor and his testimony . . . all appeared to be 

rational and coherent”).5

Having concluded that the district court was not required to hold a competency 

hearing before Kerr‟s April 16 plea, we must now assess whether the record reflects any 

“circumstances suggesting a change that would render [Kerr] unable to meet the standards 

of competence” by the time of his August 4 sentencing. Arenburg, 605 F.3d at 168-69 

(internal quotation marks omitted). In his counseled brief, Kerr contends there were two 

such circumstances: his “erratic” and “irrational” post-plea behavior, and Wells‟s 

representations that the FMC psychologists “missed something” and that Kerr was unable to 

help him prepare for sentencing. 

We first hold that, upon consideration of the whole record, Kerr‟s post-plea behavior 

was not so “erratic” that it should have given the district court reason to doubt his 

competency. Indeed, the record reflects that Kerr‟s obstinate, belligerent, and obsessive 

behavior remained a constant throughout the entire proceedings. The district court ordered 

the pretrial competency evaluation after it became increasingly disturbed by Kerr‟s obsession 

with his pro se theories of defense to the exclusion of other issues, his refusal to cooperate or 

 

5 Given this conclusion, we reject any suggestion in counsel‟s brief that Kerr was “likely” 

incompetent at the time of his trial and plea. See Appellant Br. at 45 & n.12. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

15

communicate with his attorneys, and his insistence on subpoenaing irrelevant witnesses. 

This is precisely the same behavior Kerr flags as “erratic” in the post-plea phase of the case, 

when he cut off communication with Wells and repeatedly attempted to press his theories of 

defense despite having pled guilty. Although the “obligation to be vigilant for reasonable 

cause [to question the defendant‟s competency] . . . does not disappear upon a pretrial 

finding that the defendant is competent to stand trial,” Arenburg, 605 F.3d at 170 (internal 

quotation marks omitted), under the circumstances of this case we will not fault the district 

court—which observed Kerr over the entirety of the proceedings below—for not twice 

questioning the same behavior. Kerr‟s situation is therefore distinguishable from those cases 

in which we have found it necessary for courts to revisit their initial reasonable cause 

determinations. See id. at 169-71 (district court erred by suggesting that a magistrate judge‟s 

pretrial competency determination was dispositive of the defendant‟s competence at trial and 

was required to revisit the reasonable cause determination where, at trial, the assigned AUSA 

questioned the defendant‟s mental stability and the defendant, who had a history of mental 

illness, made numerous incoherent statements); Wojtowicz, 550 F.2d at 789-90 (remanding to 

the district court for an evidentiary hearing where defendant, who was assessed as competent 

before the entry of his plea, submitted a post-judgment affirmation stating that he had 

attempted to commit suicide on the morning of sentencing).

Kerr‟s obsession with his defensive theories, his distrust of his attorneys, and his 

belligerent attitude were also not so bizarre as to require the district court to question his 

competency for a second time. Compare Arenburg, 605 F.3d at 171 (reasonable cause to 

reconsider defendant‟s competency where “he made repeated references to „radio waves,‟ 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

16

„microwave channels,‟ and a conspiracy involving MGM Studios and the government with 

the object of publicly broadcasting his thoughts”), and United States v. Auen, 846 F.2d 872, 

874-75, 878 (2d Cir. 1988) (finding reasonable cause for a competency hearing and 

remanding for the district court to conduct such a hearing where defendant, inter alia, 

compared the agent investigating his case with a cat he had put down, complained that he 

had been the victim of “psychopolitical terrorism by the Internal Revenue Service,” and 

threatened the government‟s attorneys), with Zhou, 428 F.3d at 380-81 (no reasonable cause 

to question defendant‟s competency where the district court had observed the defendant 

“over a substantial period of time” and the defendant was found competent in a medical 

report that described him as “defensive, stubborn, and evasive regarding the details of his 

case”). Disputes between criminal defendants and their attorneys are not at all uncommon, 

see United States v. White, 174 F.3d 290, 296 (2d Cir. 1999), and many defendants “assert that 

their rights have been denied at every turn,” “demonstrate that they do not understand how 

the legal system handles witnesses,” and “forget or choose to ignore what judges said 

earlier,” Timberlake v. Davis, 409 F.3d 819, 823 (7th Cir. 2005). In sum, although Kerr 

“demonstrated that he can be rude, unreasonable, and myopic in his approach to this case, 

that is not the same as incompetence and is not the type of conduct that implies the kind of 

mental shortcomings required to oblige a district court to sua sponte order a competency 

examination.” United States v. Alden, 527 F.3d 653, 660 (7th Cir. 2008). 

Against a different backdrop, we may well have greater cause for alarm when 

confronted with such statements by defense counsel as Wells‟s that his client was acting 

irrationally and could not assist with preparing a defense. Cf. United States v. Kirsh, 54 F.3d 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

17

1062, 1071 (2d Cir. 1995) (noting that defense counsel‟s failure to indicate the defendant 

could not assist in her defense or understand proceedings was “substantial evidence” of 

competency). Here, however, the district court had substantially longer experience with 

Kerr over the course of the proceedings than did Wells, who did not become standby 

counsel until immediately before trial. In addition, Wells freely acknowledged that, in 

making these representations, he had “no training in mental health diagnosis.” Appellant 

App‟x at 235. Finally, it is apparent that Wells‟s declaration that Kerr could not help him 

prepare for sentencing was based on Kerr‟s refusal to meet with him, which, as we have 

noted, was consistent with Kerr‟s pretrial behavior toward his former attorneys. Given all 

of the above, we hold that the district court did not abuse its discretion by not revisiting the 

issue of Kerr‟s competency before imposing sentence.

II. Sixth Amendment Right to Counsel during Post-Plea Proceedings

As an initial matter, although Kerr suggests that it “appears . . . [he] never entered a 

constitutionally sufficient waiver of his right to counsel” because the district court 

“neglected to engage in the appropriate waiver of counsel inquiry” before allowing him to 

proceed pro se, he expressly forgoes a separate Sixth Amendment claim premised on this 

supposed deficiency. See Appellant Br. at 24 & n.10. We therefore decline to address the 

propriety of the district court‟s pretrial ruling permitting Kerr to represent himself. See 

Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

18

briefs are considered waived and normally will not be addressed on appeal.”); see also United 

States v. Greer, 285 F.3d 158, 170 (2d Cir. 2002) (same).6

With respect to the Sixth Amendment arguments he does raise, Kerr first asserts in 

his counseled brief that it is unclear from the record whether, at the change of plea hearing,

the district court appointed Wells as counsel for the remainder of the proceedings, or only 

for the entry of the plea. Appellant Br. 25. Given this opacity, Kerr advances two 

alternative arguments regarding right to counsel. First, he contends that if the district court 

elevated Wells from standby counsel to full counsel only for purposes of the plea, then it 

deprived him of his right to counsel at a critical stage of the proceeding when it denied his 

request for counsel‟s assistance with his motion to withdraw the plea. Appellant Br. at 25-

 

6 Even if were we to reach this issue, we likely would conclude that Kerr knowingly and 

intelligently waived his right to counsel before trial. See Faretta v. California, 422 U.S. 806, 835 

(1975) (holding that a defendant who seeks to represent himself “should 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” (internal quotation marks 

omitted)). The record reflects that over the course of the pretrial proceedings, during which 

he repeatedly and emphatically demanded to represent himself, Kerr: (1) confirmed that he 

understood the nature of the charges and the potential penalties he faced, see Special App‟x 

at 28; and (2) acknowledged the importance of having the assistance of an attorney, see id. at 

55-56. In addition, the district court warned Kerr immediately before trial about the dangers 

and difficulties of proceeding pro se. See Appellant App‟x at 80, 84-86. Thus, while the 

district court‟s Faretta colloquy in this case was not ideal, it was not so deficient as to make 

Kerr‟s waiver of his Sixth Amendment right unknowing. See, e.g., Torres v. United States, 140 

F.3d 392, 401 (2d Cir. 1998) (explaining that “there is no talismanic procedure to determine 

a valid waiver” and that “[w]e need not analyze the district court‟s every word, so long as the 

record as a whole demonstrates that the defendant knowingly and intelligently waived her 

right to counsel”); United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (finding a Faretta

examination “adequate” where the district court warned the defendant “of the specific perils 

of representing himself and the advantages of having legal representation,” the defendant 

was “clearly aware of the penalties he faced if convicted,” and the defendant “clearly stated 

that he would prefer to proceed pro se”). 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

19

28. Alternatively, he argues that if the court upped Wells to full counsel for the remainder of 

the proceeding, then it should have appointed new counsel to assist Kerr with his motion to 

withdraw his plea because of Wells‟s “actual conflict” with respect to that motion. See id. at 

28-41. 

We note that the district court did not state explicitly that Wells returned to standby 

status following the entry of the plea. Despite any possible confusion, several reasons

support our conclusion that the district court elevated Wells to full counsel only for 

purposes of the plea, and that Kerr thereafter resumed his self-representation. 

Although the district court told Kerr at the plea hearing that it was “going to at this 

point accept the fact that Mr. Wells is your attorney,” Appellant App‟x at 98, it implied after 

accepting the plea that participation in an on-going relationship was optional, informing 

Kerr that the Probation Department would interview him and that “Wells can be there if 

you like, that‟s up to you and him,” id. at 117 (emphasis added). The district court‟s 

observation that Wells was entitled to opt out of accompanying Kerr for such an interview, 

rather than having an obligation to attend, was a clear indication that the court viewed Wells, 

subsequent to the entry of Kerr‟s guilty plea, as having completed his service as counsel and 

returned to the status of standby counsel. See, e.g., Gonzalez v. United States, 722 F.3d 118, 

134-35 (2d Cir. 2013) (noting, among the ways in which Gonzales‟s attorney‟s “performance 

was deficient with regard to sentencing,” that counsel “did not accompany Gonzalez when 

Gonzalez was interviewed by the Probation Department”). In addition, there is no 

indication that Kerr waived his right to self-representation during the post-plea period 

because during that time he made numerous pro se filings, refused to allow Wells to speak on 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

20

his behalf at sentencing, and submitted a post-judgment letter reiterating that Wells was 

“standby counsel.” Cf. United States v. Barnes, 693 F.3d 261, 271 (2d Cir. 2012) (noting that 

“even after the right to proceed pro se has been clearly and unequivocally asserted, the right 

may be waived through conduct indicating that one is vacillating on the issue or has 

abandoned one‟s request altogether” (internal quotation marks omitted)). The district court 

also made clear its view that Kerr continued to represent himself by accepting and ruling on 

his numerous pro se submissions. Tellingly, some of these filings requested the assignment of 

new counsel, which the court denied without stating or otherwise indicating that Wells 

remained Kerr‟s attorney. Finally, although Wells submitted a sentencing memorandum and 

appeared with Kerr at sentencing, it is routine, and certainly not unusual, for standby counsel 

to perform such essential tasks. See, e.g., United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 

1997) (standby counsel not elevated to full counsel when he “examined and cross-examined 

witness, and gave the defense summation”). We therefore conclude that Kerr continued

representing himself after the entry of his plea and address only the first of Kerr‟s alternative 

Sixth Amendment arguments—that the district court deprived him of his right to counsel 

when it did not appoint an attorney to assist him with his second motion to withdraw his 

plea. 

This inquiry is complicated by the fact that Kerr‟s post-plea request for counsel came 

after he waived his right to counsel before trial. While it is undisputed that the Sixth 

Amendment protects a criminal defendant‟s right to the assistance of counsel “„at all critical

stages of the criminal process,‟” Marshall v. Rodgers, __ U.S. __, 133 S. Ct. 1446, 1449 (2013) 

(quoting Iowa v. Tovar, 541 U.S. 77, 80-81 (2004)), it is also well settled “that a defendant . . .
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

21

has the right to „proceed without counsel when he voluntarily and intelligently elects to do 

so,‟” Marshall, 133 S. Ct. at 1449 (quoting Faretta, 422 U.S. at 807); see also Forbes v. United 

States, 574 F.3d 101, 106 (2d Cir. 2009) (“A motion to withdraw a guilty plea is a critical stage 

of a criminal proceeding . . . .”); see generally United States v. Davis, 239 F.3d 283, 287 (2d Cir. 

2001) (a defendant who wishes to withdraw his plea of guilty “may waive his . . . right to 

counsel . . . and proceed pro se”). To resolve the tension that can exist between these two 

principles when a defendant who elected to proceed pro se later demands an attorney, there is 

broad consensus that, once waived, the right to counsel is no longer unqualified. See United 

States v. Thompson, 587 F.3d 1165, 1175 (9th Cir. 2009); United States v. Leveto, 540 F.3d 200, 

207 (3d Cir. 2008); United States v. Proctor, 166 F.3d 396, 403 & n.8 (1st Cir. 1999); United 

States v. Reddeck, 22 F.3d 1504, 1510-11 (10th Cir. 1994); United States v. Taylor, 933 F.2d 307, 

311 (5th Cir. 1991); United States v. West, 877 F.2d 281, 286 (4th Cir. 1989); United States v. 

Solina, 733 F.2d 1208, 1211-12 (7th Cir. 1984); see also United States v. Brasch, 205 F.3d 1325 

(2d Cir. 1999) (table) (unpublished decision). 

Although we have not definitively spoken on this precise issue, we have held that a 

defendant‟s right to represent himself in the first place is not absolute. See Barnes, 693 F.3d 

at 271-72. Among other qualifications placed on the exercise of that right, we have required 

that the request to proceed pro se be “„unambiguous and unequivocal‟” so as to “„inhibit[] any 

deliberate plot to manipulate the court by alternatively requesting, then waiving counsel.‟” 

Id. at 271 (quoting Williams v. Bartlett, 44 F.3d 95, 100-01 (2d Cir. 1994)). In addition, the 

request may be denied if the district court finds it to be “obstructionist” or “manipulative or 

abusive in some other way.” Id. (internal quotation marks omitted). These concerns are 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

22

equally applicable to a situation in which a defendant, having invoked his right to proceed pro 

se, later seeks the reappointment of counsel. Accordingly, we hold, in agreement with our 

sister Circuits that have considered the issue, that once a defendant voluntarily and 

intelligently waives his right to counsel and elects to proceed pro se, the decision whether to 

grant or deny his “post-waiver request for counsel is well within the discretion of the district 

court.” Leveto, 540 F.3d at 207 (citing cases).

Given the critical role that access to professional legal representation plays in our 

criminal justice system, a district court‟s discretion to deny post-waiver requests for counsel 

is necessarily circumscribed. Thus, it is manifestly improper for a court to deny such a 

request on purely punitive grounds. See Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989) 

(“We are certainly unwilling to deny counsel because of some conception that the 

defendant‟s initial decision to exercise his Faretta right and represent himself at trial is a 

choice cast in stone.”); see also Taylor, 933 F.2d at 311 (defendant must ordinarily be allowed 

to “change his mind about whether he will represent himself”). In addition, a district court‟s 

denial of such a request made after trial or before any meaningful trial proceedings have 

begun may be subject to more searching scrutiny than the denial of a request made on the 

eve (or in the midst) of trial, when assigning new counsel would inevitably disrupt the court‟s 

schedule and impede the orderly administration of justice. See Leveto, 540 F.3d at 207; Proctor, 

166 F.3d at 402; Solina, 733 F.2d at 1211-12; Menefield, 881 F.2d at 700-01. On the other 

hand, a motion to withdraw a mid-trial plea of guilty—and to have a new trial—where the 

defendant has elected to plead guilty after hearing the government‟s evidence, also portends 

inefficiencies, to wit, duplications of effort on the part of the prosecution, the judge, and the 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

23

witnesses, and the need for a second set of citizens to serve as jurors. See, e.g., United States v. 

Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004). 

A district court “need not countenance abuse of the right to counsel or the right to 

waive it,” Taylor, 933 F.2d at 311, and it is well within the court‟s discretion to deny a postwaiver motion for new counsel when it is made in an effort to delay or disrupt the 

proceedings, see id. (“A defendant is not entitled to choreograph special appearances by 

counsel or repeatedly . . . alternate his position on counsel in order to delay his trial or 

otherwise obstruct the orderly administration of justice.” (internal quotation marks and 

citation omitted)); Leveto, 540 F.3d at 207 (same); Proctor, 166 F.3d at 402 (same). Although 

we will generally require a district court faced with a post-waiver motion for new counsel to 

inquire into the defendant‟s reasons for the request and fully explain on the record the 

grounds for its ultimate decision, we will “not insist upon a formal inquiry or colloquy where 

the rationales for the request and decision are clearly apparent on the record.” Leveto, 540 

F.3d at 208. 

With these principles in mind, we turn to the facts of Kerr‟s case and find that the 

district court, having properly denied Kerr‟s first pro se motion to withdraw his plea, did not 

abuse its discretion when it refused his post-waiver request for new counsel to help him file 

a second.7 Acting pro se, Kerr filed his first motion to withdraw his plea days after it was 

entered, asserting only that he wanted “the jury [to] find [him] guilty or not guilty.” 

 

7 As noted above, Kerr does not challenge on appeal the validity of his initial pretrial waiver 

of his right to counsel. We therefore assume for purposes of this analysis that it was 

knowingly and voluntarily made. 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

24

Appellant App‟x at 173. As the district court correctly determined in its April 26, 2010 order 

denying the motion, this does not constitute a valid ground for withdrawal. See Fed. R. 

Crim. P. 11(d)(2)(B) (defendant may withdraw his plea before sentencing if he “can show a 

fair and just reason”); United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) 

(defendant‟s “change of heart” not a “sufficient reason to permit withdrawal of a plea”). In 

addition, a careful review of the plea colloquy clearly indicates that the district court 

complied with the requirements of Rule 11 and fully ensured that Kerr‟s plea was knowing, 

voluntary, and supported by a factual basis. See Fed. R. Crim. P. 11(b). The district court 

therefore properly denied Kerr‟s first withdrawal motion. See Gonzalez, 970 F.2d at 1100. 

Thus, when, in mid-May 2010, Kerr filed his post-waiver motion for the appointment 

of new counsel, the district court was confronted with the following facts: (1) Kerr 

effectively fired three attorneys before electing to proceed pro se at trial with a fourth as 

standby counsel; (2) he pled guilty with the assistance of counsel midway through trial and 

then resumed acting as his own attorney days later when he filed his first meritless pro se

motion to withdraw his plea; and (3) less than one month after the denial of that motion, 

Kerr moved for the appointment of a fifth attorney to assist him with a second motion to 

withdraw his plea. Considering these facts, we have little trouble concluding that the district 

court acted within its discretion when it denied the request. While a first motion to 

withdraw a plea is a “critical stage of the proceeding,” see Forbes, 574 F.3d at 106, successive 

motions in the form presented here, seeking the same relief yet articulating no specific 

factual details which would support that relief, do not rise to that level. A defendant has no 

right to whipsaw the district court and delay the proceedings by continually alternating his 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

25

position on counsel, especially when his post-waiver request for counsel arises in connection 

with a motion the court has already denied. See Taylor, 933 F.2d at 311; cf. Barnes, 693 F.3d at 

271. Moreover, although it would have been preferable for the district court to explain its 

reasons for denying the request, see Leveto, 540 F.3d at 207-08, we find no abuse of discretion 

in this instance because the reasons for the court‟s decision—Kerr‟s alternating positions 

with respect to representation and his attempt to delay the proceedings—are “clearly 

apparent on the record,” id. at 208.

III. Sentencing Issues

Kerr challenges the procedural reasonableness of his sentence on three grounds, 

arguing that the district court: (1) improperly held him accountable for the combined weight 

of all 7,000 MDMA pills because he did not know about the 3,000 pills hidden in his

vehicle‟s rear interior paneling; (2) failed to find him eligible for a two-level minor role 

adjustment pursuant to U.S.S.G. § 3B1.2; and (3) did not articulate an adequate basis for its 

sentence. We review sentences for procedural and substantive reasonableness using a 

“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). 

Procedural error occurs when, for example, the district court improperly calculates the 

applicable Guidelines range, fails to consider the sentencing factors articulated in 18 U.S.C. 

§ 3553(a), or neglects to explain the reasons for its chosen sentence. See United States v. 

Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 

Contrary to Kerr‟s first argument, the district court was not required to find that he 

“knowingly” possessed all 7,000 MDMA pills before holding him accountable for them all. 

We rejected an identical challenge in United States v. de Velasquez, where a defendant 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

26

convicted of the importation of heroin argued that because she had been unaware of the 

heroin secreted in her shoes, she could not be held accountable for that amount. 28 F.3d 2, 

4-6 (2d Cir. 1994). As we stated in that case, “[t]here is no requirement under the Guidelines 

that the defendant know or foresee the total quantity of drugs in his possession to be 

sentenced for the full amount.” Id. at 5; see also U.S.S.G. § 1B1.3 cmt. n.2 (2010) (explaining 

that “the defendant is accountable for all quantities of contraband with which he was directly 

involved” and that the reasonable foreseeability requirement “does not apply to conduct that 

the defendant personally undertakes”). 

Kerr next argues that he was entitled to a minor role adjustment because he “was no 

more than a onetime drug mule.” Appellant Br. at 56. “To the extent that [a defendant] 

claims that one who is simply a courier is automatically entitled to a [U.S.S.G.] § 3B1.2 minor 

role adjustment based on that status, we reject his argument.” United States v. Garcia, 920 

F.2d 153, 155 (2d Cir. 1990) (per curiam). Instead, it was Kerr‟s burden to establish that his 

conduct was minor “as compared to the average participant” in the crime of conviction. 

United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999); see also Garcia, 920 F.2d at 156 (“It is 

the defendant‟s burden to establish by a preponderance of the evidence that his level of 

culpability entitles him to a minor role reduction.”). This inquiry is highly fact-intensive and, 

in cases involving drug couriers, necessarily depends on “such factors as the nature of the 

defendant‟s relationship to other participants, the importance of the defendant‟s actions to 

the success of the venture, and the defendant‟s awareness of the nature and scope of the 

criminal enterprise.” Garcia, 920 F.2d at 155. We have no difficulty concluding that Kerr 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

27

did not meet this burden as he failed to present any evidence or arguments addressing these

factors.

Finally, Kerr maintains that the district court rejected his sentencing arguments 

without adequate explanation. As we have repeatedly reiterated, “we never have required a 

District Court to make specific responses to points argued by counsel in connection with 

sentencing.” United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). Instead, the court is 

required to “satisfy us only that it has considered the party‟s arguments and has articulated a 

reasonable basis for exercising its decision-making authority.” Id. (citing Cavera, 550 F.3d at 

193). Here, the district court did just that: it “reviewed and considered all the pertinent 

information including . . . submissions by counsel,” Appellant App‟x at 143-44, and

explained that it found “a sentence at the low end of the Guidelines range . . . fair, just, and 

sufficient but not greater than that which is necessary to comply with the goals of 

sentencing,” id. at 145. We also note that the district court made clear its desire to further 

consider and likely credit Kerr‟s sentencing arguments, but stated that Kerr‟s refusal to meet 

with the Probation Department deprived it of the necessary information to do so. Kerr‟s 

sentence was procedurally sound.

IV. Pro Se Brief

Kerr argues in his pro se brief that the district court improperly denied his motion to 

withdraw his guilty plea and challenges various aspects of his prosecution and trial. See Pro 

Se Br. at 9-20. As we concluded above, Kerr‟s guilty plea was knowing and voluntary, and 

the district court did not abuse its discretion when it denied his motion to withdraw it. 

Kerr‟s remaining pro se arguments—concerning alleged prosecutorial misconduct, discovery 
11-5462-cr(L); 10-3393-cr(con)

United States v. Kerr

28

improprieties, the denial of his motion to dismiss the indictment, and various trial errors—

are therefore barred by his valid guilty plea. See United States v. Lasaga, 328 F.3d 61, 63 (2d 

Cir. 2003) (“A defendant who pleads guilty unconditionally admits all elements of the formal 

charge and, in the absence of court-approved reservation of issues for appeal, waives all 

challenges to prosecution except those going to the court‟s jurisdiction.”).

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.