2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-2009

USA v. Angel Santos

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1825

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Recommended Citation

"USA v. Angel Santos" (2009). 2009 Decisions. Paper 398.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-1825

 

UNITED STATES OF AMERICA

v.

ANGEL SANTOS,

 Appellant

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 07-cr-00602-001)

District Judge: Honorable Petrese B. Tucker

 

Argued: September 21, 2009

 

Before: BARRY, FISHER and JORDAN, Circuit Judges

(Opinion Filed: October 22, 2009)

 

Lynanne B. Wescott, Esq. (Argued)

The Wescott Law Firm

239 South Camac Street

Philadelphia, PA 19107-0000

Counsel for Appellant
2

Robert A. Zauzmer, Esq. (Argued)

Thomas M. Zaleski, Esq

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106-0000

Counsel for Appellee

 

OPINION

 

BARRY, Circuit Judge

Angel Santos (“Santos”) was convicted on two counts of heroin distribution and

one count of possession with intent to distribute heroin, and sentenced to 240 months’

imprisonment. He appeals his conviction and sentence on a variety of grounds. We will

affirm. 

I.

Because we write solely for the parties, we presume familiarity with the facts and

will recite only the basic underpinnings of this case. 

On three occasions in October and November 2006, Santos sold heroin to an

undercover police officer – first, 96 milligrams, then 18 grams, and finally 40 grams. On

the third occasion, he was arrested. On the day of the arrest, the police obtained a search

warrant for his residence and found 67 additional grams of heroin. 

From the outset of the federal proceedings against him, Santos raised a series of
 Santos also raises the following arguments, which we have reviewed and dismiss 1

summarily as devoid of merit: (1) the District Court made an improper drug quantity

calculation at sentencing; (2) the Court erroneously concluded that he was a career

offender; and (3) the Court wrongly denied his motion to suppress. 

3

meritless challenges to the jurisdiction of the federal court. He also had been assigned a

series of attorneys, and then decided that he would like to waive counsel and represent

himself, albeit with stand-by counsel in the wings. Accordingly, the United States

Magistrate Judge before whom Santos was appearing at the time conducted a Faretta

colloquy to ensure that his waiver of counsel was knowing, voluntary, and intelligent. 

After asking Santos a series of questions that probed into what he wanted and what he

knew with respect to self-representation, the Magistrate Judge concluded that Santos’s

waiver of counsel was knowing, voluntary, and intelligent. Before the start of trial, the

District Court conducted another Faretta colloquy, and also concluded that Santos’s

waiver was valid. Following trial, Santos was convicted on all counts, and sentenced to

240 months’ imprisonment. 

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

II.

On appeal, Santos argues, among other things, that his waiver of the right to

counsel was not knowing, voluntary, and intelligent, and that his sentence was

procedurally unreasonable. 

1
4

A.

Before a criminal defendant can be permitted to proceed pro se, a court must make

certain that he is knowingly, voluntarily, and intelligently waiving his Sixth Amendment

right to counsel. See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975). Because of

the singular import of the right to counsel, we have instructed that “[c]ourts must indulge

every reasonable presumption against a waiver of counsel.” Buhl v. Cooksey, 233 F.3d

783, 790 (3d Cir. 2000). Accordingly, such a waiver “ought not [be] accept[ed] . . .

absent a penetrating and comprehensive examination of all the circumstances.” United

States v. Stubbs, 281 F.3d 109, 118-19 (3d Cir. 2002) (internal citations and quotations

omitted). It is clear that “the defendant [must] be informed of all risks and consequences

associated with his decision for self-representation.” United States v. Peppers, 302 F.3d

120, 135 (3d Cir. 2002) (emphasis in original). “Our review of whether a defendant’s

waiver of counsel was knowing and intelligent is plenary as it involves only legal issues.” 

Stubbs, 281 F.3d at 113 n.2. 

In Peppers, we set forth a series of questions, some with subparts, that provides a

“useful framework for the court to assure itself that a defendant’s decision to proceed pro

se is knowing and voluntary.” 302 F.3d at 136. In United States v. Jones, we observed

that “[a]lthough no scripted recital is required for this inquiry, we do require that all of the

subjects covered in the model questions set forth in Peppers be fully explored in the

inquiry, to the extent those subjects are relevant.” 452 F.3d 223, 234 (3d Cir. 2006). 
 Indeed, Santos recognized that there had already been just such a colloquy. (See JA 2

113 (“Mr. Santos: Your Honor, I believe I did my colloquy back in October 19 .”); id. at th

115a (“Mr. Santos: Your Honor, I believe I’ve already taken my colloquy back on

October 9th. I don’t know if another one is needed by law.”).) 

5

Each and every Peppers/Jones subject was covered almost word for word in the

colloquy conducted by the Magistrate Judge at the time Santos elected to proceed pro se;

indeed, at oral argument before us his counsel described that colloquy as “perfect.” The

District Court conducted yet another colloquy on the day trial was to commence after

confirming that Santos wanted to proceed pro se, a colloquy in which the Court went into

all but two of the Peppers subjects and went beyond Peppers when it questioned Santos

about the Sentencing Guidelines. Santos has not explained why, in his view, the District

Court was obligated to conduct an additional complete colloquy when it had already been

determined that his waiver of the right to counsel was knowing, voluntary, and

intelligent. Moreover, Santos never wavered in his desire to represent himself at any 2

point prior to or during sentencing, nor was there any change in circumstances between

the end of his trial in January, 2008 and his sentencing hearing in July, 2008. Absent a

revocation of his waiver or some other change in circumstances before sentencing, the

District Court had no reason, let alone an obligation, to revisit the waiver question and

conduct another Faretta colloquy. Cf. United States v. Modena, 302 F.3d 630-31 (6th Cir.

2002). 

The record reflects the sort of full and penetrating examination that we require
 Santos’s appellate counsel expends much time and energy pointing out Santos’s 3

deficiencies in representing himself at trial. But the issue here is not whether, after the

fact, Santos turned out to be a good representative for himself. To the contrary, the issue

is whether he validly waived the right to counsel. Accordingly, we will not discuss

Santos’s trial strategy or any deficiencies in his performance. 

 Santos erroneously characterizes this alleged error as a problem of substantive 4

reasonableness rather than procedural reasonableness: “Assuming, arguendo, that there

was no procedural error [in sentencing a defendant who should not have represented

himself], the sentence was not substantively reasonable because the court failed to follow

the required sentencing analysis.” (Appellant’s Br. 29.) 

6

pursuant to Peppers and Jones. Santos made the decision to waive counsel; we need not 3

revisit that decision simply because he is displeased with the jury’s verdict. 

B.

Santos also contends that the District Court erred in not sufficiently discussing the

18 U.S.C. § 3553(a) factors before imposing sentence. There is no merit to this 4

contention. In light of the arguments raised, the facts presented in the presentence report,

and the circumstances surrounding Santos and the crimes of which he was convicted, the

Court’s discussion of the § 3553(a) factors, albeit brief, was entirely adequate. There is

also no merit to the contention that Santos should not have been sentenced because he

represented himself at the trial. (See Appellant’s Br. 29.) This argument is simply a

different version of the Faretta claim rejected above. 

III.

For the foregoing reasons, we will affirm the judgment of conviction and sentence. 
 In light of our decision in United States v. Jones, 452 F.3d 223 (3d Cir. 2006), the 5

adequacy of the District Court’s inquiry regarding Santos’s waiver of counsel at trial is

open to question, but ultimately the exchange between the Court and Santos appears to

have been sufficient. In Jones, we emphasized that if a district court does not engage a

defendant in a colloquy that covers the issues developed in Faretta v. California, 422

U.S. 806 (1975), and later in United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), “it

fails to establish that the waiver is knowing, intelligent and voluntary” and can thus

require a reversal of the judgment. Id. at 231 (citation omitted). Here, however, the

colloquy at trial came not long after a full colloquy before the magistrate judge during a

probable cause and detention hearing. (JA 70-82; JA 115(a)-115(d)). Moreover, the

defendant twice indicated under questioning by the District Judge that he had been

through the colloquy once before. (See JA at 113 (“Mr. Santos: Your Honor, I believe I

did my colloquy back in [sic] October 19 .”); id. at 115a (“Mr. Santos: Your Honor, I th

believe I’ve already taken my colloquy back on October 9 . I don’t know if another one th

is needed by law.”).) The present case is thus distinguishable from Jones, where there

had not been a discussion of waiver with a magistrate judge shortly before the defendant’s

trial. See Jones, 452 F.3d at 226-27. 

7

USA v. Santos, No. 08-1825 

JORDAN, Circuit Judge, concurring in part and dissenting in part 

While I agree with my colleagues in the Majority that Santos’s waiver of his right

to counsel at both his pre-trial proceedings and at trial was knowing, intelligent, and

voluntary, I believe that the failure of the District Court to make any inquiry at all into 5

Santos’s continued desire to represent himself at sentencing violated long-standing

precedent that requires courts to affirmatively protect a defendant’s right to counsel at

every critical stage of a criminal proceeding. I therefore concur in the judgment to the

extent it upholds Santos’s conviction, but, since I would vacate Santos’s sentence and

remand for a resentencing that would include an inquiry into whether Santos continues to
8

waive counsel, I respectfully dissent as to the portion of the judgment upholding the

sentence.

More than sixty years ago, in Von Moltke v. Gillies, 332 U.S. 708 (1948), the

Supreme Court instructed that it is “the solemn duty of a federal judge before whom a

defendant appears without counsel to make a thorough inquiry and to take all steps

necessary to insure the fullest protection of this constitutional right [to counsel] at every

stage of the proceedings.” Id. at 722 (Black, J., plurality opinion; emphasis added). One

might read the italicized portion of that quotation, as the Majority here evidently does, to

mean that a judge’s duty is to be assured at least once that the defendant’s right to counsel

has been dealt with so thoroughly as to give protection to that right throughout the

entirety of the proceedings. Alternatively, one may understand the admonition to be that

“at every stage” the judge must take steps to ensure that the right to counsel continues to

be protected. That is how I understand it, particularly in light of our own decisions that

have elaborated on and emphasized that language from Von Moltke.

For example, in United States v. Salemo, 61 F.3d 214 (3d Cir. 1995), we vacated a

sentence and remanded for re-sentencing when the District Court failed to conduct at 

sentencing a waiver colloquy as required by Faretta v. California, 422 U.S. 806, 835

(1975) (“[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.’”) (citation omitted). The defendant, Salemo, had been
 That observation was delivered before the decision in United States v. Booker, 543 6

U.S. 220 (2005), made the Sentencing Guidelines advisory rather than mandatory. Yet

even in a post-Booker world it remains true that the Guidelines are the starting point in

the exercise of judicial discretion, United States v. Ali, 508 F.3d 136, 142 (3d Cir. 2007)

(noting that the first step for district courts in sentencing after Booker is “to calculate a

9

represented by counsel at trial, unlike Santos in the present case. But, just as in this case,

the government in Salemo argued that no inquiry about waiver was needed at the

sentencing stage because the district court could infer that “Salemo understood the nature

of the sentencing proceeding and the possible consequences” and that “he wanted to

represent himself at sentencing.” Salemo 61 F.3d at 218. We rejected that argument,

quoting the afore-cited language from Von Moltke and emphasizing the “at every stage”

portion of the quote. Id. at 219. We then observed that “[n]either logic nor precedent

supports carving out an exception when the waiver occurs at sentencing.” Id. at 219. 

Significantly for the present case, we noted that “the inquiry at sentencing need

only be tailored to that proceeding and the consequences that may flow from it” and so

“need not be as exhaustive and searching as a similar inquiry before the conclusion of

trial.” Id. Nevertheless, we stressed that “sentencing is a critical and often times

complicated part of the criminal process that contains subtleties which may be beyond the

appreciation of the average layperson seeking to represent him/herself.” Id. at 220. And

we indicated that some inquiry into waiver of counsel is particularly important at

sentencing because it may be that “one’s ultimate fate is determined more by the

application of the Guidelines than the determination of innocence or guilt.” Id. 

6
defendant’s Guidelines sentence precisely as they would have before Booker”), and that

“[t]he Sentencing Guidelines contain a complex procedure for determining the

appropriate increase in offense level for conviction of multiple counts.” Salemo, 61 F.3d

at 220 (citing United States v. Johnson, 931 F.2d 238, 242 (3d Cir. 1991) (internal bracket

omitted). See also United States v. Smith, 997 F.2d 396, 398 (8th Cir. 1993) (Gibson, J.,

concurring) (“The guidelines ... have created a complex hypertechnical system consuming

great amounts of judicial time for both trial and appellate judges.”). 

10

The district court in Salemo did not conduct a “thorough,” id. at 219, and “proper,”

id. at 218, inquiry about the defendant’s waiver of counsel at sentencing, and we were

thus required to vacate and remand for resentencing. In the present case, the District

Court did not conduct any inquiry whatsoever into Santos’s waiver of counsel at

sentencing. From the perspective of the government and the Majority, it might be said

that Salemo is inapposite because there had been no previous waiver colloquy in that case

while there had been two in this one. I cannot escape the impression, however, that, in

highlighting the particular legal complexities presented at sentencing, and in rejecting the

government’s argument about inferring waiver from the record, our opinion in Salemo

stands for the proposition that some inquiry into waiver must be made at sentencing, even

when a defendant has previously said or done something to assert his right to selfrepresentation.

That impression is deepened by other decisions of our Court. In United States v.

Peppers, 302 F.3d 120 (3d Cir. 2002), we found constitutional error when the district

court failed to apprise the defendant “of the full range of risks and structural limitations

that would be attendant upon [the defendant] should he proceed pro se .... .” Id. at 134. 
11

In United States v. Welty, 674 F.2d 185 (3d Cir. 1982), while discussing the dangers of

proceeding pro se, we noted that after the jury handed down a verdict following a trial in

which the defendant had been without counsel, the defendant, “realizing the need for the

assistance of counsel at sentencing,” engaged counsel for the sentencing proceeding. Id.

at 191-92. Cf. Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (“While an accused may

waive the right to counsel, whether there is a proper waiver should be clearly determined

by the trial court, and it would be fitting and appropriate for that determination to appear

upon the record.”). 

The Majority says that “Santos has not explained why, in his view, the District

Court was obligated to conduct a complete colloquy when it had already determined that

his waiver of the right to counsel was knowing, voluntary and intelligent.” (Maj. Op. at

IIA). That comment, however, implies that it was Santos’s burden to once again raise the

question of his right to counsel, when the law places the burden on the District Court to

affirmatively “take all steps necessary to insure the fullest protection of this constitutional

right ... .” Von Moltke, 332 U.S. at 722. I do not think it was incumbent on the District

Court to conduct at sentencing another complete colloquy of the sort suggested in

Peppers. See Salemo, 61 F.3d at 219 (“the inquiry at sentencing need only be tailored to

that proceeding and the consequences that may flow from it”). And I repeat our oft-stated

assurance that there is “no talismanic formula for the district court’s inquiry.” Jones, 452

F.3d at 229 (internal quotation marks, brackets, and citation omitted). As Santos himself
12

intuited (see supra n.1), a re-run of the same colloquy at every stage is not a necessity. 

Nonetheless, since the trial had concluded and some six months had passed since the

District Court engaged in any inquiry into the defendant’s waiver of counsel, the Court

should have made a “sufficiently penetrating inquiry to satisfy itself” at sentencing, 

which is a distinct and critical stage of criminal proceedings, that Santos’s waiver was

knowing, intelligent and voluntary. See Peppers, 302 F.3d at 130-31 (“It is the tension

between the right to have counsel and the right to represent oneself that places upon the

trial court the weighty responsibility of conducting a sufficiently penetrating inquiry to

satisfy itself that the defendant’s waiver of counsel is knowing and understanding as well

as voluntary.”); see also Gardner v. Florida, 430 U.S. 349, 358 (1977) (“[I]t is now clear

that the sentencing process, as well as the trial itself, must satisfy the requirements of the

Due Process Clause. ... [S]entencing is a critical stage of the criminal proceeding at which

[the defendant] is entitled to the effective assistance of counsel.”) 

In short, I do not believe that Von Moltke or our own case law permits a “once and

done” – or even, as in this case, a “twice and done” – approach to the inquiry into a

defendant’s desire to proceed pro se. The job is only done when the record reflects

sufficient care by the district court to safeguard the right to counsel “at every stage of the

proceedings.” Von Moltke, 332 U.S. at 722. While there may be legitimate debate about

exactly what constitutes a separate stage of a criminal proceeding and what constitutes an

adequate inquiry at each stage, I think at least this much is clear: sentencing is a discreet
13

stage, and a district judge must do something at sentencing to be satisfied that a

defendant’s waiver of counsel remains knowing, intelligent, and voluntary.

Consequently, to the extent noted, I dissent and would vacate and remand for

resentencing.