Filed: Apr. 10, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4977 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL GENE TERRELONGE, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:09-cr-00229-RJC-DCK-1) Submitted: March 7, 2013 Decided: April 10, 2013 Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. San
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4977 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL GENE TERRELONGE, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:09-cr-00229-RJC-DCK-1) Submitted: March 7, 2013 Decided: April 10, 2013 Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Sand..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4977
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL GENE TERRELONGE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00229-RJC-DCK-1)
Submitted: March 7, 2013 Decided: April 10, 2013
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, William M. Miller,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Gene Terrelonge appeals his criminal convictions
and sentence. We affirm.
I
Terrelonge was indicted on one count of conspiracy to
commit bank robbery (18 U.S.C. § 371), three counts of armed
bank robbery (18 U.S.C. § 2113), and three counts of brandishing
and possessing a firearm in furtherance of a crime of violence
(18 U.S.C. § 924(c)). Shortly before trial was scheduled to
begin, Terrelonge’s court-appointed counsel moved to withdraw,
and Terrelonge moved for substitute counsel. The magistrate
judge assigned to conduct pretrial proceedings denied the
motions.
Following a trial continuance, the magistrate judge held a
second hearing to consider counsel’s renewed motion to withdraw.
At this hearing, Terrelonge indicated that he wished to
represent himself. The magistrate judge denied the motion to
withdraw and ruled that Terrelonge had not clearly and
unequivocally asserted his right to self-representation.
Terrelonge appealed the issue of self-representation to the
district court, which held a hearing on the matter and
thereafter allowed Terrelonge to represent himself with his
counsel serving in a standby capacity.
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Terrelonge proceeded to trial pro se, and the jury
convicted him on all counts. Thereafter, the district court
sentenced Terrelonge (who was again represented by counsel) to
744 months in prison. The sentence is comprised of 60-month
concurrent terms for the conspiracy and bank robbery counts, a
mandatory consecutive sentence of 84 months for the first § 924
firearm count, and 300-month consecutive mandatory sentences for
both of the other § 924 firearm counts.
II
In challenging his convictions, Terrelonge argues that (1)
the magistrate erred by denying his pretrial request for
substitution of counsel and (2) the district court erred by
finding that he knowingly and intelligently waived his right to
counsel. For the following reasons, we find that Terrelonge is
not entitled to relief under either of these theories.
We review the denial of a motion for substitute counsel for
abuse of discretion, focusing on three factors: (1) the
timeliness of the motion; (2) the adequacy of the court’s
inquiry into the defendant’s request; and (3) whether the
attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate defense,
United States v. Perez, 661 F.3d 189, 191 (4th Cir. 2011).
Having reviewed the record in this light, we are satisfied that
the magistrate judge did not abuse his discretion. First,
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Terrelonge’s request for substitute counsel, made just days
before trial was scheduled to begin, was untimely. Second, the
magistrate judge’s inquiry into Terrelonge’s complaint about his
counsel – which involved an ex parte examination of Terrelonge
and his counsel - was more than adequate. Finally, we find no
error in the magistrate judge’s determination that Terrelonge
was able to prepare an adequate defense with his counsel. On
this latter point, we note that the magistrate judge
acknowledged that there was “significant conflict” between
Terrelonge and his court-appointed counsel, J.A. 499, but held,
applying the appropriate legal standard, that the situation did
not constitute a total lack of communication preventing an
adequate defense, Supp. J.A. 2.
We review a district court’s determination regarding waiver
of the right to counsel de novo, while reviewing the findings of
historical fact underlying that determination for clear error.
United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005). In
determining whether a defendant has properly exercised the right
to self-representation and waived the right to counsel, we
ascertain, among other things, whether the assertion of the
right to self-representation is (1) clear and unequivocal, and
(2) knowing, intelligent and voluntary. Id. at 271. Applying
this standard, we find no error.
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Although the magistrate judge ruled initially that
Terrelonge’s request for self-representation was not clear and
unequivocal, Terrelonge clarified his request in subsequent
representations to the district court. Specifically, Terrelonge
appealed the magistrate judge’s ruling, stating that he no
longer intended to condition the assertion of his right to self-
representation on his demand for another lawyer and that he
“unequivocally wishe[d] to represent himself.” J.A. 63.
Moreover, after advising Terrelonge of the risks of proceeding
pro se, the district court sought to resolve any prior ambiguity
by asking Terrelonge “very simply” whether he wished to
represent himself, to which Terrelonge unequivocally responded
“yes.” J.A. 50. Further, based on its interactions with
Terrelonge and its review of the record, the district court made
sufficient findings to support its conclusion that Terrelonge’s
assertion of the right to self-representation was knowing and
intelligent.
III
Terrelonge also challenges his sentence, primarily
contending that the district court procedurally erred by
imposing consecutive mandatory sentences for each of his §
924(c) convictions. Generally, we review a sentence for
procedural and substantive reasonableness. United States v.
Hargrove, 701 F.3d 156, 160 (4th Cir. 2012). Procedural
5
reasonableness evaluates the method used to determine a
sentence, and substantive reasonableness examines the totality
of the circumstances to see whether the sentencing court abused
its discretion in concluding that the chosen sentence satisfies
the standards set forth in 18 U.S.C. § 3553(a). Hargrove, 701
F.3d at 160-61. Because Terrelonge did not object to his
sentence on this basis, our review is for plain error. United
States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010).
Terrelonge is mistaken in his basic contention that the
§ 924(c) sentences should not run consecutively. As we have
explained: “There is no ambiguity in section 924(c). It states
that whenever a person commits a crime of violence or drug
trafficking crime and uses or carries a gun, the person shall be
sentenced to a prison term that runs consecutive to the person’s
sentence for the underlying crime of violence or drug
trafficking crime and consecutive to all other sentences.”
United States v. Luskin, 926 F.2d 372, 376 (4th Cir. 1991); see
also United States v. Robinson,
404 F.3d 850, 862 (4th Cir.
2005) (holding that district court erred by running multiple
§ 924(c) sentences concurrently).
Because Terrelonge was convicted of three counts of
possessing and brandishing a firearm in furtherance of a crime
of violence based on three separate armed bank robberies, he was
subject under § 924(c) to a mandatory seven-year sentence for
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the first § 924(c) conviction followed by two consecutive
twenty-five year mandatory sentences for the remaining § 924(c)
convictions, all to run consecutively to each other and to any
other sentence imposed. Accordingly, the district court did not
err, much less plainly err, by imposing consecutive sentences
for each of Terrelonge’s § 924(c) convictions.
IV
Based on the foregoing, we affirm Terrelonge’s convictions
and sentence. 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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