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


                                                        [DO NOT PUBLISH]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:
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      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 self-

representation 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, 

, 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, 

, 177 n.8, 

, 950 n.8 (1984).

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

proceed without counsel. Faretta v. California, 

, 819, 

,


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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, 

, 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, 

, 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, 

, 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, 

, 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


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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




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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


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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, 

, 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 two-

level reduction under § 3E1.1(a) is warranted, the sentencing court considers


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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


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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, 

 (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, 

, 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, 

, 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


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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, 

, 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.




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