Filed: Dec. 19, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4197 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ZONTA TAVARAS ELLISON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:11-cr-00404-FDW-DSC-1) Submitted: November 25, 2014 Decided: December 19, 2014 Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Lesli
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4197 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ZONTA TAVARAS ELLISON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:11-cr-00404-FDW-DSC-1) Submitted: November 25, 2014 Decided: December 19, 2014 Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Leslie..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZONTA TAVARAS ELLISON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00404-FDW-DSC-1)
Submitted: November 25, 2014 Decided: December 19, 2014
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, William M. Miller,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Zonta Tavaras Ellison on three counts
of possession of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) (2012). On appeal, Ellison
contends that the district court erred by (1) determining that
he knowingly, intelligently, and voluntarily waived his Sixth
Amendment right to counsel; and (2) failing to grant him a
reduction for acceptance of responsibility. We affirm.
I.
A defendant may waive his right to counsel so long as
he is competent and the waiver is made intelligently. Faretta
v. California, 422 U.S. 806, 835 (1975). We review de novo a
district court’s determination that a defendant has waived his
Sixth Amendment right to counsel. United States v. Singleton,
107 F.3d 1091, 1097 n.3 (4th Cir. 1997). “An assertion of the
right of self-representation . . . 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) (citations omitted).
“[W]e review the sufficiency of a waiver of the right
to counsel by evaluating the complete profile of the defendant
and the circumstances of his decision as known to the trial
court at the time.” Singleton, 107 F.3d at 1097. A defendant
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“should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open.”
Faretta, 422 U.S. at 835. However, this court does not require
“[a] precise procedure or litany for this evaluation.”
Singleton, 107 F.3d at 1097.
Our review of the record demonstrates that Ellison
clearly and unequivocally asserted his right to self-
representation. Ellison’s election to proceed pro se also was
knowing, intelligent, and voluntary. The record reflects that,
at the time he waived his right to counsel, Ellison understood
the legal proceedings and was aware of the nature of the charges
against him and the penalties he faced. We conclude that the
district court did not err in granting Ellison’s request to
waive counsel and proceed pro se.
II.
For the first time on appeal, Ellison argues that,
even though he went to trial, the district court should have
awarded him a two-level reduction for acceptance of
responsibility. We review for plain error. See United States
v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). To establish
plain error, an appellant must show “(1) that the district court
erred, (2) that the error is clear or obvious, and (3) that the
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error affected his substantial rights, meaning that it affected
the outcome of the district court proceedings.” United States
v. Webb, 738 F.3d 638, 640-41 (4th Cir. 2013) (internal
quotation marks and citation omitted). Even if the appellant
meets his burden, we retain discretion to recognize the error
and may grant relief only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.”
Id. at 641 (internal quotation marks and citation
omitted) (alteration in original).
We find no reversible error in the district court’s
failure to credit Ellison with a reduction for acceptance of
responsibility. Ellison argues that the assertion of an
affirmative defense, such as entrapment, does not preclude a
reduction for acceptance of responsibility. Although some
courts have adopted this position, see, e.g., United States v.
Garcia, 182 F.3d 1165, 1172-74 (10th Cir. 1999) (affirming
reduction), Ellison has not shown that the district court erred,
much less that the error was clear or obvious.
Ellison’s entrapment defense was directly related to
factual guilt and was inconsistent with acceptance of
responsibility insofar as it was an attempt at minimizing his
culpability. See United States v. Holt, 79 F.3d 14, 17 (4th
Cir. 1996) (holding district court did not clearly err in
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denying adjustment because defendant’s meritless affirmative
defense was “attempt to minimize his culpability”). This is
clearly demonstrated by Ellison’s objections to his presentence
report, in which he stated that, although he transacted with the
confidential informant, he lacked “the intent to sell and
distribute cocaine.” Finally, to the extent Ellison contends
that the district court erred in adopting the presentence
report, which stated that the reduction did not apply, we find
this argument unpersuasive.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court, and argument would not aid the decisional process.
AFFIRMED
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