[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-12944

Non-Argument Calendar

________________________

D.C. Docket No. 1:11-cr-20784-JEM-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

RUDY ED DORMEUS, 

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 9, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM: 

Case: 12-12944 Date Filed: 07/09/2013 Page: 1 of 9 
2

Rudy Ed Dormeus appeals his convictions and 84-month total sentence after 

a jury found him guilty of one count of being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1), and one count of possession of controlled 

substances with intent to distribute, in violation of 18 U.S.C. § 841(a)(1). First, 

Dormeus argues that the district court denied his Sixth Amendment right to selfrepresentation when it refused his request to proceed pro se at trial. Second, he 

contends that the court erred at sentencing by refusing to award a downward 

adjustment for acceptance of responsibility. Finally, Dormeus argues that the 

district court erred by imposing a four-level enhancement for possession of a 

firearm in furtherance of a felony offense. After careful review, we affirm.

I. Right to Counsel

First, Dormeus argues that his Sixth Amendment right to self-representation 

was violated when the district court refused his request to proceed pro se at trial.

Whether a defendant waived his right to counsel is a mixed question of law and 

fact that is reviewed de novo. United States v. Evans, 478 F.3d 1332, 1340 (11th 

Cir. 2007). A violation of the right to self-representation is not subject to harmless 

error review, but instead requires automatic reversal. McKaskle v. Wiggins, 465 

U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8 (1984).

A federal criminal defendant has both a constitutional and a statutory right to 

proceed without counsel. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 

Case: 12-12944 Date Filed: 07/09/2013 Page: 2 of 9 
3

2533 (1975); 28 U.S.C. § 1654. This Court has held that “a defendant’s right of 

self-representation is unqualified if the defendant asserts that right before the jury 

is empaneled, absent any indication that the defendant is attempting to delay the 

proceedings.” United States v. Young, 287 F.3d 1352, 1353 (11th Cir. 2002). 

“Before a court allows a criminal defendant to proceed pro se, the defendant 

must clearly and unequivocally assert his right of self-representation.” Nelson v. 

Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002) (habeas case). If a defendant does 

not clearly invoke the right to self-representation, the trial court may allow hybrid 

counsel at its discretion. United States v. LaChance, 817 F.2d 1491, 1498 (11th 

Cir. 1987). That said, to invoke his Sixth Amendment right, “a defendant does not 

need to recite some talismanic formula hoping to open the eyes and ears of the 

court to his request[, but] . . . must do no more than state his request, either orally 

or in writing, unambiguously to the court so that no reasonable person can say that 

the request was not made.” Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th 

Cir. 1986) (habeas case).

Here, the district court did not violate Dormeus’s Sixth Amendment right to 

self-representation because Dormeus did not “clearly and unequivocally” assert his 

desire to proceed pro se throughout the trial. See Nelson, 292 F.3d at 1295. 

In February 2012, days before trial was set to begin, Dormeus, who was 

represented at trial by appointed counsel, filed a pro se motion to dismiss the 

Case: 12-12944 Date Filed: 07/09/2013 Page: 3 of 9 
4

indictment. The district court struck the motion pursuant to a local rule that 

required represented parties to act through legal counsel. 

On March 1, 2012, the parties appeared before the court for the start of trial. 

Immediately before prospective jurors were called for voir dire, defendant’s 

counsel advised the court that he and Dormeus were having a disagreement over 

Dormeus’s motion to dismiss the indictment. Dormeus argued that his appointed

attorney was “not in my best interest so I’m taking it pro se, that’s for my motion 

to be addressed.” Doc. 62 at 5. Dormeus then continued that he wanted to proceed 

pro se because “I need my motion to be addressed” and “I told [my attorney] to 

address the motion he’s not addressing it. That’s why I feel like he’s not in my 

best interest right now.” Id. at 6. He continued that “I have told you my only 

address [to appointed counsel] is to address the motion.” Id. at 9. The district 

court denied his request to proceed pro se. After a brief recess, Dormeus again 

indicated that he “just need[ed] somebody to represent the motion for me, speak it 

up. If [my appointed counsel] wanted to go ahead and read what the motion said, 

that’s what I’m trying to present towards the courts.” Doc. 69 at 2-3. Because 

Dormeus’s appointed counsel represented to the court that he saw no legal basis to 

proceed with Dormeus’s motion and that he did not feel he could ethically file the 

motion on his own, the district court gave Dormeus an opportunity to defend his 

Case: 12-12944 Date Filed: 07/09/2013 Page: 4 of 9 
5

motion and read the motion verbatim on the record. The district court then denied 

the motion on the merits and explained why the motion was meritless.

Subsequently, right before the beginning of trial, Dormeus filed another 

motion to dismiss the indictment. The district court read the motion and denied the 

motion on the merits. After the district court denied the motion, the trial proceeded 

and Dormeus remained represented by appointed counsel. Dormeus did not raise 

objection to his appointed counsel and did not ask to proceed pro se throughout the 

trial or on another motion.

Dormeus argues that his Sixth Amendment rights were violated because he 

clearly requested to proceed pro se throughout the entirety of the trial and the 

district court did not follow the proper procedures in denying his request. A

thorough review of the record, however, shows that his Sixth Amendment rights 

were not violated. We hold that Dormeus did not clearly and unequivocally assert 

his right to proceed pro se throughout the entirety of the trial. Instead, we read the 

entirety of the record as indicating that Dormeus merely desired to have his 

motions considered—which they were—and was only requesting to proceed pro se

on his motions to dismiss the indictment if his appointed counsel would not assist 

him. The district court permitted Dormeus to argue the motions and ultimately 

denied the motions on the merits. In fact, the district court denied Dormeus’s 

substantially similar arguments twice on the merits. After having his motions

Case: 12-12944 Date Filed: 07/09/2013 Page: 5 of 9 
6

denied, Dormeus never requested to proceed pro se throughout the trial or filed any 

additional pro se motions to the court. Dormeus never requested, for example, to 

conduct voir dire without assistance of counsel, to cross-examine witnesses 

without assistance of counsel, or to give closing statements without assistance of 

counsel. Dormeus’s statements and conduct were required to be made 

“unambiguously to the court so that no reasonable person can say that the request 

was not made,” see Dorman, 798 F.2d at 1366, and here Dormeus’s statements and 

conduct do not unambiguously indicate his desire to proceed pro se throughout the 

entirety of the trial. For these reasons, Dormeus’s Sixth Amendment rights were 

not violated.

II. Acceptance of Responsibility

Second, Dormeus argues that the district court erred in not granting him a 

two-level downward adjustment for acceptance of responsibility. “We review a 

district court’s factual findings concerning a reduction for acceptance of 

responsibility for clear error.” United States v. Williams, 408 F.3d 745, 756 (11th 

Cir. 2005). 

The Sentencing Guidelines provide that a defendant’s offense level should 

be decreased by two levels “[i]f the defendant clearly demonstrates acceptance of 

responsibility for his offense.” U.S.S.G. § 3E1.1(a). To determine whether a twolevel reduction under § 3E1.1(a) is warranted, the sentencing court considers

Case: 12-12944 Date Filed: 07/09/2013 Page: 6 of 9 
7

whether the defendant “truthfully admitt[ed] the conduct comprising the offense(s) 

of conviction.” Id., comment. (n.1(A)). The timeliness of the defendant’s 

acceptance of responsibility is an important consideration in determining the 

propriety of the adjustment. Id., comment. (n.1(H)). An acceptance of 

responsibility adjustment “is not intended to apply to a defendant who puts the 

government to its burden of proof at trial by denying the essential factual elements 

of guilt, is convicted, and only then admits guilt and expresses remorse.” Id., 

comment. (n.2). It is only in “rare situations” that a conviction by trial does not 

automatically preclude an adjustment, such as where a defendant “goes to trial to 

assert and preserve issues” concerning a constitutional challenge not related to 

factual guilt. Id. “[A] determination that a defendant has accepted responsibility 

will be based primarily upon pre-trial statements and conduct.” Id.

Here, the district court did not clearly err in denying Dormeus a two-level 

adjustment for acceptance of responsibility. Although Dormeus admitted in his 

post-arrest interview to selling drugs and possessing a firearm, essential elements 

of Counts 1 and 3, during that same interview he later retreated from his admission 

and maintained that he was only using drugs, not selling them. Further, although 

proceeding to trial does not necessarily preclude a defendant from receiving a 

downward adjustment, this is not one of the “rare” qualifying cases described 

under § 3E1.1. Instead, Dormeus contested his factual guilt as to Count 3 during 

Case: 12-12944 Date Filed: 07/09/2013 Page: 7 of 9 
8

his post-arrest interview, and then proceeded to put the government to its burden of 

proof at trial. Only after the government introduced overwhelming evidence of 

guilt at trial did defense counsel essentially concede guilt on Counts 1 and 3 during 

closing argument. The district court’s decision to discount that concession and 

decline to award a downward adjustment was not clearly erroneous in light of its 

timing, the above considerations, and the fact that an acceptance of responsibility 

adjustment should “be based primarily upon pre-trial statements and conduct.” Id.

III. Firearm Possession

While acknowledging that his position is foreclosed by this Court’s 

precedent in United States v. Faust, 456 F.3d 1342 (11th Cir. 2006), Dormeus 

argues that the district court erred by considering acquitted conduct in imposing his 

sentence. We review the district court’s application and interpretation of the 

Sentencing Guidelines de novo and its factual findings for clear error. United 

States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007). However, under the prior 

precedent rule, a panel of this Court is bound to follow a prior binding precedent 

unless and until it is overruled by this Court sitting en banc or by the Supreme 

Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

Here, the district court did not err. First, imposition of the four-level 

§ 2K2.1(b)(6)(B) enhancement does not implicate any Sixth Amendment concerns 

or this Court’s decision in Faust. The district court did not impose the 

Case: 12-12944 Date Filed: 07/09/2013 Page: 8 of 9 
9

enhancement because it found that Dormeus possessed a firearm “in furtherance” 

of a drug-trafficking crime—conduct charged under Count 2 for which he was

acquitted—but instead imposed the enhancement because it found that Dormeus

possessed a firearm “in connection” with such offense, meaning that his possession 

“ha[d] the potential of facilitating another felony offense.” See U.S.S.G. § 2K2.1, 

comment. (n.14(B)). Both the Guidelines and this Court provide that a firearm 

found in close proximity to drugs and drug-related items has the potential to 

facilitate a drug offense. See id.; United States v. Carillo-Ayala, 713 F.3d 82, 92 

(11th Cir. 2013). In any case, even if the court’s finding was at odds with the 

jury’s acquittal, as Dormeus argues, the district court’s imposition of the 

enhancement would still stand because, as he concedes, his argument that his 

constitutional rights were violated is squarely foreclosed by this Court’s binding 

precedent in Faust. See Vega-Castillo, 540 F.3d at 1236.

IV. Conclusion

After thorough consideration of the record and the parties’ briefs on appeal, 

we affirm Dormeus’s convictions and sentences.

AFFIRMED.

Case: 12-12944 Date Filed: 07/09/2013 Page: 9 of 9