2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-2012

USA v. Booker

Precedential or Non-Precedential: Precedential

Docket No. 07-2835

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-2835

_____________

UNITED STATES OF AMERICA

 v.

CHRISTOPHER BOOKER

 Appellant

___________

APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. Action No. 05-cr-0170-05)

District Judge: Honorable John R. Padova

______________

Argued April 11, 2012

______________

Before: HARDIMAN, GREENAWAY, JR. and 

GREENBERG, Circuit Judges.

______________

(Opinion Filed: July 2, 2012)
2

______________

Thomas A. Dreyer (argued)

6 Dickinson Drive

Building 100 – Suite 106

Chadds Ford, PA 19317

Counsel for Appellant Christopher Booker

Zane David Memeger, United States Attorney

Robert Zauzmer, Assistant United States Attorney (argued)

Joseph T. Labrum III, Assistant United States Attorney

United States Attorney‟s Office

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee United States of America

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

This case arises from the District Court‟s entry of 

judgment of conviction and sentence as well as the denial of 

Appellant Christopher Booker‟s pre-trial motion to suppress 

all post-arrest statements. Booker participated in a bank 

robbery with other co-conspirators. After being arrested on 

unrelated charges, he provided incriminating statements to the 

police. In a pre-trial motion, Booker asked the District Court 

to suppress these statements as violations of his Miranda 

rights. The District Court denied his motion. Before trial, 

Booker requested that he be allowed to proceed pro se. The 
3

District Court conducted a hearing and warned him of the 

consequences of self-representation. While articulating the 

potential sentences facing him, the District Court erred and 

misstated one of the relevant mandatory minimums (stating it 

was five years and not twenty-five years). Booker was 

convicted of all charges, and he now appeals the District 

Court‟s judgment and sentence. For the reasons stated herein, 

we will vacate the District Court‟s judgment and sentence and 

remand the case to the District Court for a new trial. 

I. BACKGROUND

On June 15, 2004, Christopher Booker, Burnie Tindale 

and Jeryle Sowell robbed a Citizens Bank in Brookhaven, 

Pennsylvania. During the robbery, each man brandished a 

handgun and wore a stocking mask and gloves. Booker‟s 

specific role in the crime was to guard the front door. The 

men stole $52,935.75. This particular robbery was part of a 

series of similar bank robberies. Each of the other robberies 

entailed a similar method of operation and involved detailed 

dress rehearsals.

Miranda Rights and Police Questioning

On October 24, 2004, Booker was arrested in Atlantic 

City, New Jersey on charges of unlawful possession of 

firearms and cocaine base. These charges are not related to 

the bank robbery offenses. While in custody for the drug and 

firearm charges, officers advised him of his Miranda rights, 

and he refused to waive them, invoking his Fifth Amendment

right to remain silent and Sixth Amendment right to counsel. 

Booker was appointed counsel to represent him on those 

unrelated charges and was held in custody at the Atlantic City 

Correctional Facility (ACCF). 
4

The Darby Borough Police, who were investigating 

Booker in connection with an unrelated case, spoke to him

while at ACCF. They told Special Agent Roselli that Booker 

had expressed an interest in talking to the FBI about some 

bank robberies. Agent Roselli went to speak with Booker on 

November 30, 2004. He advised Booker of his Miranda

rights and had him initial and sign a FD-395 advice and 

consent form. During this conversation, Booker made 

incriminating statements, discussing the Citizens Bank 

robbery, identifying his co-conspirators and providing details 

about his own role in the robbery. 

Agent Roselli spoke with Booker again on December 

8, 2004, where he again advised him of his Miranda rights 

and had him initial and sign the same FD-395 advice and 

consent form. Booker made additional incriminating 

statements about the robberies. Finally, on December 22, 

2004, Agent Roselli travelled to ACCF to assume custody of 

Booker. He advised him of his Miranda rights, which Booker 

acknowledged and waived. Booker then made some 

voluntary statements in the car regarding the drug and firearm 

charges.

Proceeding Pro se and Conviction

Booker was charged with one count of conspiracy to 

commit armed bank robbery in violation of 18 U.S.C. § 371 

(Count One), one count of committing and aiding and 

abetting the commission of armed bank robbery, in violation 

of 18 U.S.C. §§ 2113(d) and (2) (Count Four), and one count 

of using and carrying a firearm during a crime of violence and 

aiding and abetting the use and carrying of a firearm in 

relation to a crime of violence, in violation of 18 U.S.C. §§

924(c) and (2) (Count Five). Before trial, he moved to 
5

suppress the oral statements that he made to Roselli on 

November 30, 2004, December 8, 2004 and December 22, 

2004. The District Court conducted a hearing on the issue 

and denied the motion, finding that “Booker initiated his 

conversations with Special Agent Roselli by asking to speak 

to the FBI about bank robberies and by asking to meet with 

Special Agent Roselli again at the conclusion of their 

November 30, 2004 meeting.” (App. at 142). The District 

Court then found that “Booker was given his Miranda rights 

and that Booker voluntarily, knowingly, and intelligently 

waived those rights.” (App. at 142-43).

Booker filed a motion to proceed pro se on January 10, 

2007. The District Court held an ex parte hearing on the 

motion, outside the presence of the Government. At the 

hearing, the Court warned Booker of the downside to selfrepresentation and strongly encouraged him to consider 

proceeding with counsel. The Court advised him that the 

sentencing guidelines would be used to determine his 

sentence should he be found guilty and apprised him of the 

fact that his sentences could run consecutively. The Court 

then advised Booker of each charge that he faced and the 

potential sentences for each crime. Specifically, the Court 

stated that he faced a maximum of five years imprisonment 

for Count One, a maximum of twenty years imprisonment for 

Count Four and a five year mandatory minimum for Count 

Five (provided that he committed two or less prior crimes of 

violence).

1

 Booker insisted that he be allowed to represent 

 

1

This is an incorrect articulation of the penalty scheme for 

Counts Four and Five. The maximum penalty for Count Four 

was twenty-five years, not twenty years as the District Court 

stated. Although our review of the record indicates that the 
6

himself.2 The District Court granted Booker‟s motion to 

proceed pro se and allowed him to retain previous counsel 

(Mr. Ingram) as standby counsel. 

On February 1, 2007, a jury found Booker guilty of 

Counts One, Four and Five. He was sentenced to sixty

months of imprisonment on Count One; 262 months of 

imprisonment on Count Four; and 300 months of 

imprisonment on Count Five (to run consecutive to the 262 

months for Counts One and Four). 

 

District Court erred in its statement, Booker has not objected 

to this error. Therefore, it presents an issue that we need not 

resolve. 

The mandatory minimum for Count Five was twenty-five 

years, not five years, because Booker had been convicted of 

another § 924(c) charge in an unrelated case before the 

District of New Jersey (“the New Jersey Case”). 

Consequently, his conviction in this case was his second and 

triggered a mandatory twenty-five year consecutive sentence, 

which the Court also failed to advise Booker. The 

Government concedes that the District Court erred in this part 

of the colloquy. 

2 Booker stated that he would do a better job than a trained 

lawyer because he would be more aggressive in crossexamination and because he did not have ties with the 

prosecution. He insisted that he would be careful with his 

questioning and indicated that he was aware of what he was 

doing. (App. at 121-23).
7

Booker now appeals the judgment and sentence on two 

grounds. First, he argues that the District Court deprived him 

of his right to counsel when it failed to accurately inform him 

of the range of possible punishments he faced on Count Five 

before allowing him to proceed without counsel. 

Specifically, Booker avers that the District Court erred in its 

colloquy on Count Five by articulating an incorrect 

mandatory minimum, not mentioning that the twenty-five 

year mandatory minimum had to run consecutive to any and 

all other sentences and failing to inform him that the 

maximum punishment he faced was life imprisonment. 

Second, he alleges that the District Court misapplied the law 

when it found that Booker had waived his Miranda rights.3 

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction, pursuant to 18 

U.S.C. § 3231. We have jurisdiction over an appeal of the 

District Court‟s judgment and sentence under 28 U.S.C. § 

1291 and 18 U.S.C. § 3742(a). See United States v. Duka, 

671 F.3d 329, 336 (3d Cir. 2011).

We exercise plenary review over a district court‟s 

finding that a defendant has knowingly and intelligently 

relinquished his right to counsel. United States v. Bankoff, 

613 F.3d 358, 373 (3d Cir. 2010). “When a waiver is deemed 

ineffective (i.e., not knowing, intelligent and voluntary), there 

 

3 At oral argument, Booker conceded that he had waived the 

Miranda issue by not presenting it to the District Court. See 

United States v. Rose 538, F.3d 175, 182 (3d Cir. 2008). 

Therefore, we will focus our subsequent analysis solely on 

the waiver of counsel issue.
8

is no harmless error review, and the conviction must be 

vacated and the case remanded for a new trial.” United States 

v. Jones, 452 F.3d 223, 230 (3d Cir. 2006); United States v. 

Peppers, 302 F.3d 120, 137 (3d Cir. 2002) (characterizing an 

error in assessing whether a defendant may proceed pro se as 

a structural error). In determining whether a waiver is 

ineffective, we must “indulge every reasonable presumption 

against a waiver of counsel.” Buhl v. Cooksey, 233 F.3d 783, 

790 (3d Cir. 2000). 

III. ANALYSIS

“The right to counsel embodied within the Sixth 

Amendment carries as its corollary the right to proceed pro 

se.” Peppers, 302 F.3d at 129. 

[S]ince a person cannot secure the right 

to proceed pro se without sacrificing the right to 

counsel, we have required defendants to assert 

the right to proceed pro se affirmatively and 

unequivocally, and we have placed on the court 

the burden of establishing that the defendant 

who does so acts voluntarily, and that he 

understands both the scope of the right 

sacrificed and the restrictions and challenges 

that he will face.

Id. As the Supreme Court has indicated, a defendant must 

knowingly and intelligently forgo the traditional benefits 

associated with the right to counsel before he can proceed in 

representing himself. Faretta v. California, 422 U.S. 806, 

835 (1975). In United States v. Moskovits, 86 F.3d 1303 (3d 

Cir. 1996), we articulated a standard for determining whether 

a waiver of the right to counsel was knowing and intelligent: 
9

For a waiver of the right to counsel to be 

knowing and intelligent, which it must be in 

order to be valid, the defendant should be made 

aware of the dangers and disadvantages of selfrepresentation, so that the record will establish 

that he knows what he is doing and his choice is 

made with eyes open. To ensure that a 

defendant truly appreciates the dangers and 

disadvantages of self-representation, . . . a 

defendant‟s waiver must be made with an 

apprehension of the nature of the charges, the 

statutory offenses included within them, and the

range of allowable punishments thereunder. 

Id. at 1306 (internal quotation marks and citations omitted). 

If a defendant‟s waiver falls short of this standard, the error is 

structural in nature and requires us to remand the case to the 

lower court for a new trial. Peppers, 302 F.3d at 137.

While our precedent reveals no “talismanic formula” 

for determining when a colloquy has yielded a defective 

waiver, we have stated that “the District Court‟s inquiry must 

establish that the defendant understands all risks and 

consequences associated with his decision for selfrepresentation, and even [if] the colloquy skips just one of the 

[relevant] factors, it fails to establish that the waiver is 

knowing, intelligent, and voluntary.” Jones, 452 F.3d at 229, 

231 (internal quotation marks and citation omitted); see also

Peppers, 302 F.3d at 135. 

In applying these standards, we previously have found 

constitutional error where a district court, amongst other 

omissions, fails to inform a defendant of the magnitude of the 

sentence that he could receive as a career offender and the 
10

fact that a prior conviction raised the maximum punishment. 

Jones, 452 F.3d at 232.4

The critical question before us is whether Booker 

made a knowing and voluntary waiver of counsel where the 

District Court failed to adequately inform him of the range of 

possible punishments that he faced. In describing the nature 

of the charges and the range of possible punishments, the 

District Court outlined all three of the charges and 

summarized the possible penalties for each count as follows5:

 

4

In Jones, we highlighted the district court‟s failure to 

properly advise a defendant of the magnitude of the sentence 

he could receive in light of his criminal history as one of 

several important issues that escaped examination. Amongst 

the other errors were a failure to inquire whether the 

defendant understood the possible defenses available to him, 

a failure to explain that the court could not assist him during 

trial and a failure to discuss the potential problems that an 

incarcerated defendant may face in putting on his own 

defense (e.g., obtaining evidence and interviewing witnesses). 

5

In Peppers, we outlined three skeletal requirements to reflect the 

obligations placed upon the district court when a defendant seeks to 

proceed pro se: 

1. The defendant must assert his desire to 

proceed pro se clearly and unequivocally.

2. The court must inquire thoroughly to satisfy 

itself that the defendant understands the nature 

of the charges, the range of possible 

punishments, potential defenses, technical 
11

THE COURT: Okay. So, in count one you‟re 

charged with conspiracy to commit armed bank 

robbery. You are also charged with one count 

of committing and aiding and abetting the 

commission of an armed bank robbery of the 

Citizens Bank located in Brookhaven, 

Pennsylvania on June 15, 2004. You‟re also 

charged with one count of use and carrying a 

firearm during a crime of violence and aiding 

and abetting the use and carrying of a firearm in 

relation to a crime of violence on June 15, 2004. 

You do understand that that‟s what you‟re 

charged with in this case.

DEFENDANT BOOKER: Yes, Your Honor.

. . . 

 

problems that the defendant may encounter, and 

any other facts important to a general 

understanding of the risks involved.

3. The court must assure itself that the 

defendant is competent to stand trial.

Peppers, 302 F.3d at 132 (internal quotation marks and

citations omitted) (emphasis added). To provide tangible 

guidance on how courts should proceed in conducting a 

sufficient inquiry into the knowing and voluntary nature of a 

defendant‟s waiver, we have emphasized questions from the 

Federal Judicial Center, Benchbook for U.S. District Court 

Judges § 1.02 (4th ed. 2000). Id. at 136-37. Our analysis 

here does not disturb the utility of the suggested colloquy set 

forth in Peppers. 
12

THE COURT: Okay. With respect to the [sic]

count one, which charges you with conspiracy, 

if you are found guilty of that crime, then the 

Court may impose an assessment of $100, could 

sentence you to a term of up to five years in 

prison and could fine you as much as $250,000. 

Do you understand that?

DEFENDANT BOOKER: Yes, Your Honor.

. . . 

THE COURT: And if you‟re found guilty of the 

crime charged in count four, then the Court 

must impose an assessment of $100 and you 

could be sentenced up to 20 years in prison. 

And you could be fined as much as $250,000.

Do you understand that?

DEFENDANT BOOKER: Yes, Your Honor. 

THE COURT: And if you‟re found guilty of the 

crime charged in count five, the Court must 

impose an assessment of $100; and if you have 

two or less prior crimes of violence, then the 

Court must sentence you to five years in prison. 

That‟s the five-year statutory mandatory 

minimum that we‟re talking about. And if you 

have more than two, then the statutory 

mandatory minimum will increase considerably, 

you understand that.

DEFENDANT BOOKER: Yes, Your Honor.

(App. at 150-53). 
13

Unlike our other cases referencing this issue, which 

focus on the comprehensiveness of the colloquy, the District 

Court seemed to address all of the relevant factors to establish 

a proper wavier. The District Court informed Booker that his 

decision was inadvisable, cautioned him that it could not 

assist him during the trial, inquired whether he understood the 

possible defenses available to him, discussed the potential 

problems obtaining evidence and locating witnesses as an 

incarcerated defendant and made him aware of the Federal 

Rules of Evidence and the Federal Rules of Civil Procedure. 

The District Court also asked specific questions regarding 

Booker‟s reason for wanting to proceed pro se and candidly 

informed him of the consequences of his request. The 

significant shortcomings in the colloquy were the District 

Court‟s errors regarding the range of possible punishments 

Booker faced under Count Five (“the § 924(c) charge”). 

There is no dispute between the parties regarding these errors. 

We must now determine whether these errors invalidate 

Booker‟s waiver. We hold that they do. 

Booker argues that the District Court failed to advise 

him of the range of potential sentences that he faced under 

Count Five. Specifically, Booker suggests that the District 

Court committed three errors in this regard. First, it failed to 

inform him that he faced a mandatory minimum sentence of 

twenty-five years imprisonment, if convicted on the § 924(c) 

charge. Second, it failed to advise him that the twenty-five 

year sentence must run consecutively to any other sentence 

imposed by the Court. Third, it failed to inform him of the 

maximum penalty if convicted – life imprisonment. While 

the Government acknowledges these failures, it posits that the 

District Court‟s shortcomings, viewed in the totality of the 
14

circumstances, did not render Booker‟s waiver involuntary or 

unknowing.

We have not applied a specific formula for 

determining whether a waiver is knowing and voluntary, but 

we have explicitly required courts to inform a defendant of 

the range of possible punishments before making a decision 

on whether to waive counsel. Moskovits, 86 F.3d at 1306; see 

Jones, 452 F.3d at 233. In this case, the District Court not 

only misinformed Booker of the applicable mandatory 

minimum, it also failed to articulate a maximum sentence for 

Count Five so that Booker could ascertain the range of 

possible punishments for the offense. Instead, it simply stated 

the mandatory minimum and provided no information on the 

extent to which the Court could sentence him above the 

minimum. The fact that the District Court similarly failed to 

state that the twenty-five year mandatory minimum for Count 

Five was to run consecutive to any other sentence imposed by 

the Court, further exacerbated the error, resulting in a twentyyear understatement of the amount of mandatory

imprisonment facing Booker, if convicted. Here, Booker 

faced a range of twenty-five years to life imprisonment if 

convicted of the § 924(c) charge in Count Five. Booker

should have had the benefit of this information in deciding 

whether to waive his constitutional right to counsel.

The Government suggests that we look at the entire 

record and conclude that the District Court‟s errors did not 

constitutionally impair Booker‟s waiver. The Government 

notes that Booker was unequivocal in his desire to represent 

himself. It also posits that any error in the District Court‟s 

colloquy had no impact on Booker‟s decision to waive his 

right to counsel based on the total period of incarceration that 

Booker faced for various other crimes unrelated to those 
15

before the District Court, and the fact that he was aware that 

he faced an additional thirty years of imprisonment for the 

current charges. 

These arguments are unpersuasive for a number of 

reasons. First, “we [have] reject[ed] the approach of some of 

our sister Circuits that allows examination of the record as a 

whole in an attempt to divine what the defendant understands 

about the consequences of proceeding pro se.” Jones, 452 

F.3d at 232. In doing so, we acknowledged that “[a] 

complete, on-the-record colloquy with the defendant, one that 

assures he understands all the risks of proceeding without an 

attorney at the time he makes that choice, is in our view a 

significantly better way of protecting the right to counsel than 

the whole-record approach.” Id. Second, the Government‟s 

suggestion that the District Court‟s errors were harmless or 

otherwise bore no impact on Booker‟s decision to waive his 

right to counsel seem to controvert our primary focus 

regarding the constitutionality of waiver colloquies. It is the

District Court that bears the burden of ensuring that a 

defendant is acting voluntarily and with the appropriate 

knowledge before relinquishing his rights. Peppers, 302 F.3d

at 130-31. Because we have been steadfast in requiring 

district courts to uphold this obligation, we see no reason to 

engage in an after-the-fact, subjective determination of what 

information did or did not influence Booker‟s decision.6 

 

6 Although our resolution of this case is grounded in our 

jurisprudence regarding waiver of the right to counsel, we 

have also espoused similar notions regarding waiver in the 

guilty plea context. See Jamison v. Klem, 544 F.3d 266, 274, 

276-77 (3d Cir. 2008). In Jamieson v. Klem, we held that a 

guilty plea was not knowing and voluntary where the trial 
16

Finally, because we have characterized defective waivers as 

structural errors, a totality of the circumstances approach 

seems antithetical to the idea that some errors are so 

fundamental that they, on their face, trigger the need for a 

new trial. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 

(1984) (“Since the right of self-representation is a right that 

when exercised usually increases the likelihood of a trial 

outcome unfavorable to the defendant, its denial is not 

amenable to „harmless error‟ analysis. The right is either 

respected or denied; its deprivation cannot be harmless.”); 

accord United States v. Stubbs, 281 F.3d 109, 121 (3d Cir. 

2002). 

In light of the District Court‟s failure to state the range 

of possible punishments, we find that Booker‟s waiver of 

counsel was not voluntary and knowing. Because such 

ineffective waivers are structural errors, and because the right 

to counsel impacts all of the charges considered at trial, we 

will vacate the District Court‟s judgment and sentence on 

Counts One, Four and Five and will remand the case to the 

District Court for a new trial. 

IV. CONCLUSION

For the reasons set forth above, we will vacate the

District Court‟s judgment and sentence for Counts One, Four 

and Five. We will remand the case to the District Court for a 

new trial.

 

court failed to advise the defendant of the mandatory 

minimum that he would face as a result of pleading guilty. 

Because we found the waiver to be defective, we vitiated the 

guilty plea and granted the petitioner a writ of habeas corpus.
United States of America v. Christopher Booker, No. 07-2835

GREENBERG, Circuit Judge, concurring

I concur with and for the most part join in Judge 

Greenaway, Jr.’s, well-crafted opinion, which concludes that 

appellant Booker is entitled to a reversal of his convictions and 

that there should be a new trial on all three counts of the 

indictment in which he was charged and for which he was 

convicted. In a merits disposition, however, I would limit my 

agreement to a reversal of the conviction on Count Five, the 

only count on which Booker asserts on this appeal that the 

District Court erred in describing the range of punishments to 

which he would be subject if convicted. But I nevertheless 

substantially join in the opinion and agree to a judgment 

granting Booker a new trial on all three counts because the 

government conceded at oral argument that if we found in favor 

of Booker by reason of the District Court’s error in advising him 

of the penalties on Count Five he would be entitled to a new 

trial on the entire case.

1

 

 

1

In its brief the government implicitly made the same 

concession as it did not suggest that we should affirm the 

convictions on the other two counts even if we held that there 

was reversible error with respect to the waiver of counsel on 

Count Five. I also observe that Judge Greenaway, Jr.’s opinion 

indicates that because “Booker’s waiver of counsel was not 

voluntary and knowing” it was a structural error and “the right 

to counsel impacts all of the charges considered at trial.” 

Consequently, the opinion remands the case for a new trial on all

counts. I certainly agree that the waiver of counsel had an 

impact on Booker’s defense on all three counts but, for the 
2

I believe that in a merits determination notwithstanding 

the error on the Count Five waiver proceedings the correct result 

would be that Booker is not entitled to a new trial on Counts 

One and Four for the following reasons. I start my analysis by 

pointing out that the District Court correctly told Booker that he 

faced a custodial sentence on Count One of five years and the 

Court sentenced him to that term on that count. Thus, Booker 

cannot make a meritorious complaint regarding either the 

proceedings that allowed him to waive counsel or challenging 

the length of the sentence on that count.2 In reaching this 

conclusion, I recognize that if he had counsel at trial the counsel 

would have represented him on the entire case, but the crucial 

point is that he was willing to waive counsel on Count One and 

consequently he should not be heard to complain that he was 

unrepresented on that count as he knew the sentence he faced if 

convicted on that count. If we granted him a new trial in a 

merits determination on Count One by reason of the error in the 

waiver of counsel proceeding on Count V, we would be 

awarding him an unjustified collateral benefit from our finding 

of that error. In short, I see no reason to hold that we should 

recognize a spill-over effect of the error on Count Five infecting 

the proceedings leading to the conviction on Count One. 

 

reasons that I will explain, I nevertheless do not agree that 

Booker is entitled to a new trial on Counts One and Four.

2

I limit my comments with respect to the length of the sentence 

to the waiver of counsel proceedings. I am not addressing other 

bases for possible challenges to the sentence.
3

The legal situation with respect to Count Four is more 

complex than the circumstances surrounding Count One. When 

Booker sought to waive his right to counsel the Court told him 

that the maximum custodial term for a conviction on that count 

was 20 years whereas under 18 U.S.C. § 2113(d) it actually was 

25 years. The Court compounded the error when it sentenced 

Booker to a 262-month term on the conviction on that count to 

run concurrently with the sentence on Count One, a period 

exceeding by 22 months the maximum term that the Court told 

him it could impose if he was convicted on Count Four. Yet for 

reasons that are not evident to me Booker does not seek a

reversal because of the incorrect advice the Court gave him with 

respect to the maximum term on Count Four.3 

When we craft an appropriate remedy for the Count IV 

error I think that United States v. Moskovits, 86 F.3d 1303 (3d 

Cir. 1996), should guide us. In Moskovits, the defendant, who 

was represented by counsel, was convicted at a jury trial and 

sentenced to a 15-year custodial term. Subsequently, the district 

court granted the defendant a new trial on his 28 U.S.C. § 2255 

motion on the ground that his trial counsel had been ineffective. 

At the time the court granted the defendant the new trial it also 

granted his request that he be permitted to represent himself at 

 

3

Inasmuch as we are granting Booker a new trial on all three 

counts he has not suffered any prejudice from the circumstance 

that his attorney did not raise the Count Four issue on this 

appeal.
4

that trial. But when the court advised the defendant of the perils 

of waiving counsel it did not include information setting forth 

the range of punishments he faced if convicted at a new trial. 

The defendant did represent himself at the new trial and he was 

convicted and sentenced to a 20-year term. 

On the defendant’s appeal we held that there had been 

error in the waiver of counsel proceeding because the district 

court did not advise the defendant of the sentence he faced if 

convicted at the retrial. Yet we did not direct that he be granted 

a new trial as we held that “the appropriate remedy for the 

deprivation is to affirm the conviction but impose a fifteen-year 

ceiling on [his] sentence.” Moskovits, 86 F.3d at 1309. In 

reaching our conclusion we pointed out that the court already 

had sentenced the defendant to a 15-year term on the offense for 

which he was convicted and, accordingly, the defendant was 

aware before the retrial that the court could impose that sentence 

if he was convicted again. In light of our holding in Moskovits, 

I conclude that in the absence of the government’s concession 

Booker would not be entitled to a new trial on Count Four.4 

 

4 An equivalent remedy cannot be applied as relief for the error 

on Count Five because the custodial sentence of five years that 

the District Court told Booker could be imposed on that count 

was illegal as by statute a mandatory minimum sentence of 25 

years to run consecutively to the other sentences being imposed 

was required for a conviction on that count. We hardly can 

direct the Court to impose an illegal sentence.
5

Rather, he would be entitled to be resentenced on Count Four to 

a sentence with a 20-year ceiling, the term that the Court said 

could be imposed when Booker waived his right to counsel on 

that count. As with Count I in a merits determination we should 

not recognize a spill-over effect infecting the proceedings on 

Count Four.5

Finally, what seems to me would be the correct result on 

a merits disposition here is consistent with the Supreme Court’s 

opinion in United States v. Morrison, 449 U.S. 361, 364, 101 

S.Ct. 665, 667-68 (1981), where the Court indicated that 

“[c]ases involving Sixth Amendment deprivations are subject to 

the general rule that remedies should be tailored to the injury 

suffered from the constitutional violation and should not 

unnecessarily infringe on competiting interests.” Though it is 

true that the Court also said that the correct approach has been 

“to identify and then neutralize the taint by tailoring relief

appropriate in the circumstances to assure the defendant the 

effective assistance of counsel and a fair trial,” id. at 365, 101 

S.Ct. at 668, the overarching principle in Morrison regarding 

“tailored” remedies is applicable here. In Moskovits, we 

thought that Morrison should be followed when we crafted our 

 

5 A person reading my opinion might wonder why I have written 

it in view of the fact that I am joining in the result of the 

majority opinion, which grants Booker a retrial on all three 

counts of conviction. The explanation is not complex. The 

government concedes that if the waiver of counsel is held to be 

invalid on Count V, Booker will be entitled to a new trial on all 

three counts and for that reason I agree to granting that relief. 
6

remedy and it seems to me that the correct result on a merits 

determination would be to follow the Moskovits model here.6

 

6

In Morrison, the Supreme Court assumed that the 

government’s wrongful conduct in approaching the defendant 

violated the defendant’s Sixth Amendment right to counsel but 

nevertheless it affirmed her conviction because the conduct did 

not prejudice her. Similarly the proceedings on Count Five did 

not prejudice Booker on the waiver proceedings on either Count 

One or Count Four and thus should not lead to a reversal of 

Booker’s conviction on those counts. The possibility that 

Booker suffered prejudice at the trial because he did not have 

counsel on Counts One and Four is immaterial as the Court 

warned him of that possibility when he waived counsel. Thus, 

when he waived counsel he took the chance that he would 

prejudice his defense on Counts One and Four.