                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4693


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DUANE PHILIP MCATEE,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:13-cr-00102-IMK-JSK-1)


Submitted:   March 12, 2015                 Decided:   March 19, 2015


Before KING, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Kristen M. Leddy,
Research and Writing Specialist, Clarksburg, West Virginia, for
Appellant. William J. Ihlenfeld, II, United States Attorney,
Paul T. Camilletti, Anna Z. Krasinski, Assistant United States
Attorneys, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Duane McAtee appeals from his convictions for obstructing

the administration of federal tax laws and two counts of failure

to    file   a   tax    return.        On   appeal,    McAtee     argues   that   the

district court erred in allowing him to represent himself at

trial because the magistrate judge did not appropriately advise

and warn McAtee on the record.                Moreover, McAtee claims that his

continued reliance         on    discredited      legal      theories   demonstrated

his lack of sophistication.             We affirm.

       The Sixth Amendment guarantees not only the right to be

represented        by      counsel          but       also       the     right      to

self-representation.            Faretta v. California, 422 U.S. 806, 819

(1975).      The decision to represent oneself must be knowing and

intelligent,      id.    at     835,    and     courts    must    entertain      every

reasonable presumption against waiver of counsel.                          Brewer v.

Williams, 430 U.S. 387, 404 (1977).                   The record must show that

the    waiver    was    clear,     voluntary,      knowing,      and    intelligent.

United States v. Bernard, 708 F.3d 583, 588 (4th Cir.), cert.

denied, 134 S. Ct. 617 (2013).

       While a district court must determine whether a waiver of

counsel is knowing and intelligent, no particular interrogation

of the defendant is required, as long as the court warns the

defendant of the dangers of self-representation so that “‘his

choice is made with his eyes open.’”                     United States v. King,

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582 F.2d 888, 890 (4th Cir. 1978) (quoting Faretta, 422 U.S. at

835).      “The     determination          of     whether        there       has     been    an

intelligent    waiver      of   right      to    counsel        must    depend,      in     each

case, upon the particular facts and circumstances surrounding

that case, including the background, experience, and conduct of

the accused.”        Johnson v. Zerbst, 304 U.S. 458, 464 (1938);

see United States v. Singleton, 107 F.3d 1091, 1097-98 (4th Cir.

1997) (court       must    consider     record         as   a   whole,       including       the

defendant’s background, capabilities, and understanding of the

dangers and disadvantages of self-representation). *

     Here,    we    find    that    the      district        court      did    not    err     in

granting   McAtee’s       request     to     waive      counsel        and    to   represent

himself.      An     examination        of       the    record        demonstrates          that

McAtee’s     election      to   proceed          pro    se      was     clear,       knowing,

intelligent, and voluntary.             While the district court’s colloquy

was brief, the truncated nature of the discussion was due to

     *
       The parties disagree about the applicable standard of
review. Compare Singleton, 107 F.3d at 1097 n.3 (“Determination
of a waiver of the right to counsel is a question of law, and
thus we review it de novo.” (internal citations omitted)), with
Bernard, 708 F.3d at 588 & n.7 (applying plain error review
because Appellant raised the issue of competency to waive the
right to counsel for the first time on appeal).          However,
because McAtee’s argument fails under either standard, we
decline to reach the issue here.     See, e.g., United States v.
Stanley, 739 F.3d 633, 645 (11th Cir.) (declining to select a
standard of review when a defendant's challenge to the validity
of his waiver of right to counsel failed under both plain error
and de novo review), cert. denied, 134 S. Ct. 2317 (2014).



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McAtee’s refusal to answer questions or confirm certain facts of

record.     Moreover, it is undisputed that McAtee, who possessed a

graduate degree, had recently represented himself at a related

proceeding,       which     ended     in    a    conviction     and    period      of

incarceration.      This previous waiver of counsel also followed a

colloquy, thus further ensuring that McAtee was aware of the

risks and difficulties involved in representing himself.                          In

addition,    the    trial     court     repeatedly      suggested     that    McAtee

consult with stand-by counsel, reminding McAtee throughout the

proceedings of the technicalities involved and the expertise of

counsel,    and    stand-by      counsel       took   an   active   role     in   the

proceedings.

      McAtee’s argument that his meritless defense was evidence

of the fact that he was not qualified to represent himself is

unavailing.       “[T]he competence that is required of a defendant

seeking to waive his right to counsel is the competence to waive

the right, not the competence to represent himself.”                   Godinez v.

Moran, 509 U.S. 389, 399 (1993) (internal emphasis omitted).

Furthermore, “the defendant’s technical legal knowledge is not

relevant to the determination whether he is competent to waive

his right to counsel.”              Id. at 400 (internal quotation marks

omitted).     Finally, the Supreme Court has noted that “while it

is   undeniable     that    in   most      criminal    prosecutions     defendants

could better defend with counsel’s guidance than by their own

                                           4
unskilled efforts, a criminal defendant’s ability to represent

himself     has    no   bearing       upon        his    competence       to    choose

self-representation.”                Id.        (internal        quotation      marks,

alteration, citation, and emphasis omitted).                     As McAtee does not

challenge    his    competence        to        stand    trial     and    waive      his

constitutional     rights,     his    claim       is    without    merit,      and   the

record reflects no error.

     Accordingly, we affirm McAtee’s convictions.                         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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