*

The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0305p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

ALLEN LEE CARRADINE,

 Defendant-Appellant.

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No. 08-3220

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 05-00330—Peter C. Economus, District Judge.

Decided and Filed: September 20, 2010 

Before: BATCHELDER, Chief Judge; WHITE, Circuit Judge; GREER, District

Judge.*

_________________

COUNSEL

ON BRIEF: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant.

Bernard A. Smith, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for

Appellee. 

_________________

OPINION

_________________

ALICE M. BATCHELDER, Chief Judge. The defendant appeals the judgment

of conviction and sentence entered on his guilty plea to his being a felon in possession

of a firearm and possession with intent to distribute cocaine. We affirm.

1
No. 08-3220 United States v. Carradine Page 2

I.

On July 7, 2005, the grand jury indicted Allen Carradine on charges of “felon in

possession of a firearm” and “possession with intent to distribute cocaine,” and a

magistrate judge appointed attorney Jeffrey Kelleher to represent him. A month later,

Kelleher moved the court to conduct a psychiatric exam to determine whether Carradine

was competent to stand trial. The district court ordered the exam and, on February 7,

2006, conducted a competency hearing and found Carradine competent. Kelleher moved

the court to compel discovery, moved to suppress certain evidence, and moved for at

least two continuances. On April 26, 2006, Carradine himself moved the court to

dismiss his case for lack of jurisdiction, on the basis that he had not been arrested on

federal property. The district court denied the motion as improvidently filed, explaining

that it would not accept any pro se filings so long as Carradine was represented by

counsel (i.e., Kelleher).

At a pre-trial conference on June 15, 2006, the government offered Carradine a

reduced sentence in exchange for a guilty plea and avoidance of trial. Carradine

declined the offer and stated that he was firing his attorney, Kelleher, because Kelleher

was actively attempting to have him incarcerated and could not be trusted. The next day,

Kelleher moved to withdraw as counsel and the court granted the request. The court

appointed Neal Atway as Carradine’s new defense counsel.

Attorney Atway moved the court for preparation of a pre-plea presentence report

and the court granted the motion. On October 11, 2006, attorney Atway moved the court

for a second psychiatric or psychological examination of Carradine. The district court

ordered the exam and, on January 30, 2007, conducted another competency hearing. The

court again found Carradine competent. The parties prepared for trial. But on June 14,

2007, Carradine submitted an affidavit to the court attesting that his counsel, Atway, was

working against him and he would be suing Atway for $9 million. Atway moved to

withdraw as counsel and the court granted the motion.

On August 1, 2008, the court appointed Joseph Gardner as defense counsel, but

at the final pre-trial conference on August 14, 2008, Carradine insisted that he did not
No. 08-3220 United States v. Carradine Page 3

want Gardner to represent him, but wanted to represent himself. Gardner explained, on

the record, that Carradine had refused to communicate with him or even meet with him.

Carradine agreed that he had not communicated and would not communicate with

Gardner. The record depicts Carradine as obstinate and hostile; he repeatedly

interrupted the judge, complained, and answered almost every question by contending

that he did not understand. The court explained that the government had offered a

sentence of 60 months in prison (the statutory minimum and well below the Guidelines

calculation of 97 to 121 months) in exchange for a guilty plea, but Carradine insisted that

he wanted to go to trial. Moreover, he insisted that he wanted to represent himself, but

when the judge attempted to conduct a colloquy to determine if Carradine was competent

to represent himself, Carradine answered almost every question by stating that, no, he

did not understand. Based on this colloquy, the court concluded that Carradine was “not

familiar with the law, [] not familiar with the [c]ourt procedure, [and] not familiar with

the rules of evidence,” and held that he was not competent to represent himself.

The court eventually scheduled trial for October 30, 2007, and on the morning

of trial, Carradine raised the prospect of representing himself one last time. A somewhat

heated discussion ensued between Carradine and the court, in which Carradine insisted

on his right to represent himself and the court attempted to regain control of the

proceedings. See Transcript 2:8 - 12:24 (“Transcript of Trial/Change of Plea,” Oct. 30,

2007). At the conclusion of this exchange, the court took a recess so that Carradine

could have an out-of-court discussion with his attorney, Gardner. When they returned

from the recess, Carradine — through his attorney — moved to enter a guilty plea. More

importantly, after this recess Carradine was the very model of congeniality — he was

attentive, agreeable, and answered every question during the plea colloquy fully and

thoughtfully, without interrupting, arguing, or stating that he did not understand. The

court accepted his plea.

The court conducted a sentencing hearing on January 30, 2008. In the first

moments of the hearing, Carradine complained to the court that he had just received his

pre-sentence report and that he needed time to review it because “[s]ome of the things
No. 08-3220 United States v. Carradine Page 4

[in it] I never seen.” The court ordered a recess, stating: “Okay. We’ll give you about

ten minutes and I want you to read and discuss the contents of the presentence report

with Mr. Gardner.” The record does not reflect the actual duration of the recess but,

when court resumed, Carradine acknowledged that he had read the presentence report

and discussed it with his attorney (Gardner), and had also resolved another issue that he

had raised prior to the recess. The court proceeded with the hearing and ultimately

sentenced Carradine to 60 months in prison, the bottom of the newly calculated

Guidelines range and the statutory minimum, and also added four years of supervised

release. The court waived any fine, but ordered Carradine to pay $1,983.58 to cover the

costs of impaneling the jury in anticipation of trial. Neither Carradine nor his attorney

objected to any aspect of the sentence on the record at the hearing.

Carradine timely appealed both his conviction and sentence, raising three issues

for our consideration. It perhaps bears mentioning that he has a new attorney for

purposes of appeal.

II.

In his first claim of error, Carradine contends that the district court abused its

discretion by denying his request to represent himself, arguing that the court’s finding

that he was incompetent to represent himself was inconsistent with its finding that he

was competent to stand trial and enter a guilty plea. The Supreme Court recently

decided a case on materially indistinguishable facts, holding that a judge can find a

defendant incompetent to represent himself and yet competent to plead guilty or stand

trial with the assistance of counsel because the tests are different. See Indiana v.

Edwards, 554 U.S. --, 128 S. Ct. 2379, 2387-88 (2008). Therefore, this argument is

untenable.

To make a valid waiver of his right to counsel and thereby represent himself at

trial, a defendant must convince the court that he apprehends “the nature of the charges,

the statutory offenses included within them, the range of allowable punishments

thereunder, possible defenses to the charges and circumstances in mitigation thereof, and

all other facts essential to a broad understanding of the whole matter.” Von Moltke v.
No. 08-3220 United States v. Carradine Page 5

Gillies, 332 U.S. 708, 724 (1948). At his pretrial hearing, Carradine answered virtually

every question directed to these matters by stating that he did not understand. Based on

this record, we cannot conclude that the district court abused its discretion by denying

his motion for self-representation. See Fowler v. Collins, 253 F.3d 244, 250 (6th Cir.

2001).

In his second claim of error, Carradine argues that the district court erred by

proceeding with sentencing when Carradine had only just received the presentence

report that morning and that the ten minute recess was not enough time for him to review

it. See Fed. R. Crim. P. 32(e)(2) (“Minimum Required Notice. The probation officer

must give the presentence report to the defendant, the defendant’s attorney, and an

attorney for the government at least 35 days before sentencing unless the defendant

waives this minimum period.”). When Carradine returned from the recess, however, he

did not raise this concern to the district court; he stated on the record that he had read it,

he had discussed it with his counsel, and he had no objections. Because Carradine did

not raise this error to the district court, we review it for plain error only. See Fed. R.

Crim. P. 52(b). “Rule 52(b) leaves the decision to correct the forfeited error within the

sound discretion of the court of appeals[.]” United States v. Olano, 507 U.S. 725, 732

(1993). Under the plain error standard, we may “correct an error not raised at trial only

where the appellant demonstrates that (1) there is an ‘error’; (2) the error is clear or

obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s

substantial rights, which in the ordinary case means it affected the outcome of the district

court proceedings; and (4) the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. Marcus, 560 U.S. --, 130 S. Ct.

2159, 2164 (2010) (editorial marks, certain quotation marks, and citation omitted).

The government points out that, although the court said that it would give

Carradine ten minutes to review the report, the record does not reflect how long the

recess actually lasted. Moreover, Carradine’s counsel stated, both before and after the

recess, that he had reviewed the report with Carradine. Finally, even after having the

report for months, Carradine has not raised any objection to its contents. Therefore,
No. 08-3220 United States v. Carradine Page 6

Carradine cannot demonstrate that the court committed plain error by proceeding with

sentencing rather than providing him more time to review the report.

In his final claim of error, Carradine argues that the sentencing court exceeded

its authority by ordering that he must pay the costs of impaneling the jury. Because he

did not raise this claim to the district court at the sentencing hearing, we review this

claim for plain error. See Fed. R. Crim. P. 52(b). The government points out that the

court simply applied Local Rule 24.4:

Assessment of Jury Costs

The Court may, in its discretion, assess the defendant(s) or counsel with

the cost of one day’s attendance of the jurors if the defendant(s) pleads

guilty after the jury has been summoned or during trial, the amount to be

paid to the Clerk of Court. For purposes of interpreting this paragraph,

a criminal jury is considered summoned for a trial as of noon the business

day prior to the designated date of trial.

N.D. Ohio Local Rule 24.4 (enacted Nov. 1, 2004) (available at

http://www.ohnd.uscourts.gov).

We note that the only two courts to have considered this issue might agree with

Carradine, having held that district courts do not have the authority to impose jury costs.

See United States v. Mink, 476 F.3d 558, 564 (8th Cir. 2007) (holding that “federal

district courts are only allowed to impose as costs upon a criminal defendant those

expenses expressly enumerated in § 1920,” and jury costs are not so enumerated); United

States v. Banks-Giombetti, 245 F.3d 949, 953 (7th Cir. 2001) (holding that “absent an

authorizing statute, a Federal Rule of Criminal Procedure, or a local rule, a district court

may not impose a sanction or other disadvantage for noncompliance with any

requirement arising from a source other than a statute or rule without first giving the

party actual notice of the requirement”). But neither of those cases involved a plain error

review, and we are loath to conclude that a court that follows the established law has

committed plain error.
No. 08-3220 United States v. Carradine Page 7

1

In his supplemental brief, Carradine sought to incorporate by reference a 27-page brief filed with

this court in an unrelated case. The Government moved to strike that reference as an improper attempt to

circumvent the page limitation we had imposed in our Order allowing the briefing (“Parties have two

weeks from the date of this order to file their briefs, not to exceed 10 pages.”). We agree that Carradine’s

proposed incorporation would circumvent our 10-page limit. See Northland Ins. Co. v. Stewart Title Guar.

Co., 327 F.3d 448, 453 (6th Cir. 2003). We therefore GRANT the Government’s motion and strike the

incorporation-by-reference portion of Carradine’s supplemental brief.

III.

On August 12, 2010 — well after this case had been fully briefed and submitted

for decision — Carradine moved to file a supplemental brief, arguing that he is entitled

to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub. L. 111-

220, 124 Stat. 2372 (Aug. 3, 2010). We granted the motion and accepted supplemental

briefs from both parties.1

This new statute, which amends the existing law, raises the threshold for

imposition of a 60-month statutory minimum prison sentence from five (5) grams of

crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C.

§ 841(b)(1)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject

to the statutory minimum under the old version but not under the new. Consequently,

Carradine argues that the new version of the statute should apply.

The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties

in place at the time the crime was committed, unless the new enactment expressly

provides for its own retroactive application. Warden, Lewisburg Penitentiary v.

Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046,

1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin

v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996).

The new law at issue here, the Fair Sentencing Act of 2010, contains no express

statement that it is retroactive nor can we infer any such express intent from its plain

language. Consequently, we must apply the penalty provision in place at the time

Carradine committed the crime in question. We affirm the district court’s imposition of

the 60-month mandatory minimum sentence.
No. 08-3220 United States v. Carradine Page 8

IV.

For all of the foregoing reasons, we AFFIRM the district court’s judgment.