Filed: Mar. 12, 2010
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4239 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAJUL RUHBAYAN, a/k/a Creme, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh’alamin, a/k/a Jibrael Ruhalamin, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:02-cr-00029-RBS-F
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4239 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAJUL RUHBAYAN, a/k/a Creme, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh’alamin, a/k/a Jibrael Ruhalamin, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:02-cr-00029-RBS-FB..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAJUL RUHBAYAN, a/k/a Creme, a/k/a James Vernon Wood, a/k/a
James Vernette Johnson, a/k/a Kreem, a/k/a Day-Ja, a/k/a
Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh’alamin, a/k/a
Jibrael Ruhalamin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:02-cr-00029-RBS-FBS-1)
Submitted: February 26, 2010 Decided: March 12, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, James Ashford Metcalfe,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rajul Ruhbayan was convicted by a jury in 2002 of
conspiracy to commit perjury and obstruction of justice; witness
tampering; perjury; suborning perjury; and obstruction of
justice in connection with his 2000 trial on federal drug and
firearms charges. When he was initially sentenced in 2004, the
district court departed upward pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (2003), and USSG § 5K2.0, p.s.,
to impose a sentence of life imprisonment, with three additional
concurrent five-year terms. We affirmed the convictions, but
found error in the four-level adjustment for a leadership role,
USSG § 3B1.1(a), and remanded for resentencing under United
States v. Booker, 543 U.S. 220 (2005). United States v.
Ruhbayan,
406 F.3d 292, 298 (4th Cir. 2005).
On remand, the district court recalculated the
advisory guideline range with a two-level role adjustment, USSG
§ 3B1.1(c), again departed upward from the guideline range, and
again imposed a life sentence. We affirmed the sentence.
United States v. Ruhbayan, 527 F.3d 107 (4th Cir. 2007).
The Supreme Court subsequently granted certiorari,
vacated this court’s judgment, and remanded for reconsideration
in light of Kimbrough v. United States, 552 U.S. 85 (2007)
(holding that district courts may consider the crack-to-powder-
cocaine guideline sentencing ratio as a possible basis for
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variance from the guidelines). We decided that resentencing was
warranted, vacated the sentence, and remanded for resentencing
in light of Kimbrough. United States v. Ruhbayan, 294 F. App'x
23 (4th Cir. 2008).
The day before he was resentenced, Ruhbayan’s
appointed attorney moved to withdraw and Ruhbayan moved to
proceed pro se, stating that his attorney had refused to make
certain legal arguments he wanted to present. Ruhbayan asked
for new counsel or, alternatively, to be permitted to represent
himself with a new attorney to assist him. The district court
denied both motions, explaining that Ruhbayan’s attorney had
represented him through seven years of litigation, the narrow
legal issue before the court had been fully briefed, no new
circumstances warranted counsel’s withdrawal, and Ruhbayan would
be given an opportunity to make any arguments he wished the
court to hear.
The district court observed that, even if Ruhbayan’s
offense level were decreased by two levels according to the
revised guidelines for crack offenses effective in November
2007, his offense level would remain at 30 and his guideline
range would not change. The court heard Ruhbayan’s argument
that it was without subject matter jurisdiction over his case
and other issues and found them to be meritless. The court also
heard Ruhbayan’s allocution concerning the appropriate sentence.
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The court then stated that, reconsidering the
previously-imposed sentence in light of Kimbrough, the court was
still of the view that, in this case, the crack/powder disparity
did not yield a sentence greater than necessary to achieve the
sentencing purposes set out in 18 U.S.C. § 3553(a) (2006). The
court reviewed its reasons for previously imposing a life
sentence and stated “the sentence previously imposed and
reimposed now is a sentence that is sufficient but not greater
than necessary to meet these statutory considerations[.]” The
court then reimposed a life sentence on the witness tampering
count, with concurrent sixty-month sentences for each of the
three other counts.
On appeal, Ruhbayan first argues that the court erred
in denying his motion for self-representation. A defendant has
a Sixth amendment right to represent himself at trial.
Faretta v. California, 422 U.S. 806 (1975). A defendant’s
assertion of his right of self-representation constitutes a
waiver of his right to counsel, and must be (1) clear and
unequivocal; (2) knowing, intelligent, and voluntary; and (3)
timely. United States v. Frazier-El,
204 F.3d 553, 558 (4th
Cir. 2000).
In this circuit, after a defendant has been
represented at trial with counsel, his request to represent
himself is within the discretion of the district court. United
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States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997).
Moreover, a defendant who wishes to proceed pro se does not have
a right under Faretta to the assistance of an attorney as stand-
by counsel or co-counsel.
Id.
Here, Ruhbayan’s request to represent himself was
neither unequivocal nor timely. He was represented by counsel
at trial and during the appeal process. Not until his second
resentencing hearing did he ask for new counsel or,
alternatively, to represent himself with a new attorney as back-
up counsel. In addition, at sentencing, Ruhbayan’s attorney
stated that his client wanted him to make certain legal
arguments which he did not believe were justified. “A trial
court must be permitted to distinguish between a manipulative
effort to present particular arguments and a sincere desire to
dispense with the benefits of counsel.”
Frazier-El, 204 F.3d at
560. The record makes clear that Ruhbayan’s request was “a
manipulative effort to present certain arguments[.]”
Id.
Therefore, we conclude that the district court did not abuse its
discretion in denying Ruhbayan’s motion to represent himself at
his second resentencing hearing.
Next, Ruhbayan contends that the district court’s
reimposition of a life sentence was unreasonable. A sentence is
reviewed for reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007).
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Generally, this requires consideration of both the procedural
and substantive reasonableness of a sentence. Id. After
determining whether the district court properly calculated the
defendant’s advisory guideline range, we must decide whether the
district court considered the § 3553(a) factors, analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Id.; see also United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). Finally, we review the
substantive reasonableness of the sentence, “taking into account
the totality of the circumstances, including the extent of any
variance from the guideline range.”
Gall, 552 U.S. at 51.
Ruhbayan argues that the district court abused its
discretion when it reimposed a life sentence after his
culpability had been reduced on appeal; he specifically refers
to the leadership role adjustment (reduced from four levels to
two levels after his first appeal) and to the application of the
2007 reduced crack guidelines at his second resentencing.
Ruhbayan claims that the district court erred in limiting itself
to reconsideration of his sentence in light of Kimbrough and by
failing to take into account certain mitigating factors and
giving too much emphasis to his criminal history.
We conclude that these arguments are without merit.
Ruhbayan’s case was remanded for the limited purpose of
resentencing in light of Kimbrough. Before imposing sentence on
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remand, the district court described the reason for the remand,
summarized the holding in Kimbrough, and acknowledged its
discretion to conclude that the crack/powder sentencing
disparity resulted in a sentence greater than necessary to
achieve the purposes set out in § 3553(a). The court then
determined that, in Ruhbayan’s case, the crack/powder disparity
did not yield a sentence greater than necessary to achieve
§ 3553(a)’s purposes and a downward variance from the guideline
range was not appropriate. We conclude that the district court
properly considered whether Kimbrough had any mitigating effect
and adequately explained its decision to reimpose a life
sentence. We further conclude that the extent of the departure
was reasonable.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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