                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3355
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Ryan Scott Luscombe

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 14, 2019
                             Filed: February 21, 2020
                                  ____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       Following a jury trial, Ryan Luscombe was found guilty of three counts of wire
fraud, in violation of 18 U.S.C. § 1343; two counts of mail fraud, in violation of 18
U.S.C. § 1341; and one count of money laundering, in violation of 18 U.S.C. § 1957.
He was sentenced to 180 months imprisonment. On appeal, Luscombe argues that
the district court1 erred by delaying its decision to revoke his pro se status until the
third day of trial. Alternatively, he argues that it erred by terminating his self-
representation. Luscombe also appeals his sentence, asserting that the district court
procedurally erred and imposed a substantively unreasonable sentence. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I.

       Ryan Luscombe operated an investment business called Five Star Trading
Group, Inc. (Five Star). Between January 2013 and March 2016, he ran a scheme to
defraud Five Star’s clients. Specifically, Luscombe lied to his clients about his past
success in investing in order to obtain their money, and he then used the majority of
those funds—$483,482.83—for his own personal expenditures, including the
purchase of a 2010 BMW 750i for $27,999. In 2016, Luscombe falsely informed his
clients that all of the money that they invested in Five Star was lost in trading and that
Five Star would have to close down. In reality, Luscombe invested less than half of
his clients’ money, and the net trading loss that he incurred was approximately
$4,600. Based on this conduct, Luscombe was charged with three counts of wire
fraud, two counts of mail fraud, and one count of money laundering.

       At Luscombe’s arraignment, the magistrate judge appointed Assistant Federal
Public Defender Ronna Holloman-Hughes to represent Luscombe. Luscombe wrote
to the court multiple times to request the appointment of new counsel. Although the
court initially denied the request, it later held a hearing on the issue. The magistrate
judge determined that it would not appoint new counsel and informed Luscombe that,
should he choose to proceed to trial without Ms. Holloman-Hughes, he would need



      1
      The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

                                           -2-
to either retain his own attorney or represent himself at trial. Luscombe was released
pending trial on a personal recognizance bond with conditions of release.

       Luscombe later asserted that he wanted to represent himself at trial, and the
magistrate judge conducted a hearing pursuant to Faretta v. California, 422 U.S. 806
(1975). At the hearing, Luscombe was apprised of the difficulties of proceeding to
trial without an attorney and was cautioned against such a course of action. Luscombe
acknowledged that he understood these challenges and was “fully prepared to accept
the consequences if [he] fail[ed].” He was also questioned about his knowledge of the
charges, the rules of evidence and procedure, and the penalties that he faced if
convicted. Based on his responses, the magistrate judge concluded that Luscombe
knowingly and voluntarily waived his right to counsel and permitted him to represent
himself at trial. The magistrate judge also offered to appoint a standby attorney, but
Luscombe declined this offer. Before trial, however, the court appointed Ms.
Holloman-Hughes as Luscombe’s standby attorney.

       At trial, the district court had to repeatedly interrupt Luscombe and admonish
him to follow the rules, to speak clearly for the court reporter and the jury, and to
refrain from talking over witnesses. For example, the district court, either sua sponte
or in response to an objection from the government, stopped Luscombe ten times
during his opening statement for making irrelevant or inappropriate comments, for
delving into argument rather than summarizing the evidence that he expected to
present, to remind him to speak clearly, and to inform him about the amount of time
that he had used. Similarly, the court frequently stopped and admonished Luscombe
throughout the trial because of the manner in which he cross examined government
witnesses. Luscombe often interrupted and argued with witnesses, asked confusing
and compound questions, asked questions that called for inadmissible testimony, tried
to interject his own testimony, spoke unclearly and in a manner that was difficult for
the jury and court reporter to understand, and took too much time in examining
witnesses. During the course of the trial, he also sent intimidating emails to one

                                         -3-
potential government witness, the government’s case agent, and his standby attorney.
This prompted the magistrate judge to revisit his bail conditions, revoke his personal
recognizance bond, and order Luscombe to be held in custody. On the third day of
trial, and after repeatedly warning Luscombe to follow court rules, the district court
terminated his self-representation and directed Ms. Holloman-Hughes to take over
Luscombe’s defense and complete the trial.

       Luscombe was found guilty of all six counts. At sentencing, the district court
calculated Luscombe’s Guidelines range to be 97 to 121 months imprisonment. The
court varied upwards and sentenced Luscombe to 180 months imprisonment. On
direct appeal, Luscombe raises two issues concerning his self-representation at trial
and appeals his sentence.

                                           II.

       Luscombe asserts that the district court erred in the way it handled his self-
representation. He advances two alternative arguments in support of this assertion.
Although Luscombe does not appear to challenge the validity of his initial waiver of
counsel, he argues that the district court erroneously waited until the third day of trial
to terminate his self-representation. Specifically, he contends that, based on his
conduct, it should have been clear to the district court on the first day of trial that he
was being ineffective in representing himself. He claims that his actions should have
suggested to the district court that he was incompetent to proceed as his own counsel
and that the district court should have sua sponte ordered a competency evaluation.
By waiting, he argues that the district court violated his constitutional rights to
effective counsel, to a fair trial, and due process. He also suggests that the district
court’s frequent interruptions undermined his ability to mount an effective defense.




                                           -4-
       Alternatively, Luscombe asserts that the district court erred by terminating his
self-representation. He essentially argues that his conduct, while perhaps poor
lawyering and annoying, did not amount to “seriously obstructive conduct” that
warranted the drastic sanction of revoking his pro se status. Luscombe suggests that
this action violated the Sixth Amendment and requires us to reverse and remand for
a new trial.

                                            A.

       First, we consider Luscombe’s argument that the district court erroneously
waited until the third day of trial to terminate his self-representation. Ordinarily, we
review de novo the district court’s decision to terminate the defendant’s right to
represent himself at trial, see United States v. Mabie, 663 F.3d 322, 328 (8th Cir.
2011), and its decision not to hold a competency hearing or order a competency
evaluation for an abuse of discretion. United States v. Turner, 644 F.3d 713, 723 (8th
Cir. 2011). The government, however, urges us to apply plain error review to these
issues because Luscombe failed to raise them at trial or to otherwise make
contemporaneous objections.2 See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 732 (1993). But it is unclear whether a defendant must formally object to
the district court’s decision to continue to allow him to represent himself at trial, or to
the district court’s failure to sua sponte order a competency hearing, in order to
preserve these issues for our review. See, e.g., United States v. Stanley, 739 F.3d 633,
645 (11th Cir. 2014) (“The appropriate standard of review . . . thus presents an
unsettled question.”); United States v. Coleman, 871 F.3d 470, 474 (6th Cir. 2017).
We need not address these issues, however, because we can affirm on each claim,
respectively, under the ordinary de novo and abuse of discretion standards. See


       2
       The government concedes that Luscombe raised these issues in a motion for
a new trial following the jury’s verdict. Luscombe does not argue that this motion
properly preserves the issue for our review.

                                           -5-
Stanley, 739 F.3d at 645 (declining to reach the issue because defendant’s arguments
failed under both de novo and plain error standards).

       The Sixth Amendment guarantees a defendant the right to represent himself at
trial. Faretta, 422 U.S. at 818-821. “Even though a defendant may conduct his own
defense to his detriment by relinquishing the benefits associated with the right to
counsel, his choice must be honored.” Turner, 644 F.3d at 720. Before a defendant
may be allowed to exercise his right to self-representation, however, he must
knowingly and voluntarily relinquish his right to counsel. Id. at 720-21. “The
adequacy of the waiver depends on the particular facts and circumstances of each case,
including the background, experience, and conduct of the accused.” Id. at 721.
Before allowing him to waive his right to counsel, the district court must question the
defendant about his knowledge of the right and adequately warn him of the dangers
involved in proceeding pro se. Shafer v. Bowersox, 329 F.3d 637, 647-48 (8th Cir.
2003). It must also be satisfied that the defendant is competent to waive the right and
stand trial. Turner, 644 F.3d at 721.

       The record shows that Luscombe knowingly and voluntarily relinquished his
right to counsel “after being repeatedly warned of the dangers and disadvantages of
doing so.” United States v. Reed, 668 F.3d 978, 986 (8th Cir. 2012). The magistrate
judge held a Faretta hearing, where she carefully inquired about Luscombe’s
knowledge of the charges, the rules of evidence and procedure, and his right to be
represented by an attorney. The magistrate judge repeatedly cautioned Luscombe
against exercising his right to self-representation and even offered to appoint standby
counsel. Although Luscombe made some odd comments during the hearing, there was
no reason to believe that he was incapable of waiving counsel or incompetent to stand
trial. See United States v. Crawford, 487 F.3d 1101, 1105 (8th Cir. 2007) (“Unless
evidence raises sufficient doubt about a defendant’s competence, further inquiry is not
required.” (internal quotation marks omitted)).



                                          -6-
       Luscombe argues, however, that on the first day of trial, it should have been
clear to the district court that Luscombe could not effectively represent himself,
requiring the court to either immediately terminate his self-representation or conduct
a mental competency evaluation pursuant to Indiana v. Edwards, 554 U.S. 164, 177-78
(2008). We find this argument unpersuasive. Luscombe may have been ineffective
at mounting his own defense, but he knowingly and voluntarily waived his right to
counsel, and “a defendant who elects to represent himself cannot thereafter complain
that the quality of his own defense amounted to a denial of ‘effective assistance of
counsel.’” Faretta, 422 U.S. at 834 n.46; see also Reed, 668 F.3d at 987 (noting that
“the competence required is the competence to waive the right, not the competence to
represent himself” (internal quotation marks omitted)); United States v. Johnson, 610
F.3d 1138, 1140 (9th Cir. 2010) (noting that after validly waiving the right to counsel,
defendants “had the right to represent themselves [at trial] and go down in flames if
they wished, a right the district court was required to respect”).

        Moreover, Luscombe’s conduct during the first three days of trial did not
suggest that he was incompetent to waive counsel. To be sure, Luscombe did engage
in obstructionist behavior and did a poor job representing himself. This included
making inappropriate comments during his opening argument, frequently interrupting
and arguing with witnesses, trying to interject his own testimony while examining
witnesses, abusing the subpoena process, and sending threatening emails to witnesses
during the course of the trial. This conduct, however, does not suggest that Luscombe
was incompetent to waive counsel. See Turner, 644 F.3d at 725-26 (“While
[defendant] did act in ways that appear bizarre or irrational, such behavior does not
invariably compel a finding of incompetency.”). The district court, in rejecting his
motion for a new trial, found that, “[h]aving been in the courtroom during the whole
trial, there was nothing in my opinion that had any warning signs [that Luscombe was
not competent.] . . . [A]s to the argument regarding his mental competency, the Court




                                          -7-
does not find . . . that it’s meritorious.” In light of the trial record, we agree with this
finding.

       Similarly, the district court did not abuse its discretion in failing to sua sponte
order a competency hearing. Indeed, “a competency determination is necessary only
when a court has reason to doubt the defendant’s competence.” Reed, 668 F.3d at 986
(quoting Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993)). In reviewing the district
court’s decision not to hold a competency hearing, we consider whether any party
requested a competency evaluation of the defendant, whether the district court’s
observations of the defendant suggested a need for a hearing, and whether the district
court actually made a finding as to the defendant’s competency. See, e.g., United
States v. Washington, 596 F.3d 926, 941 (8th Cir. 2010). Additionally, whether the
defendant suffers from a mental illness is also relevant. See id. Here, neither party,
nor any attorney, sought a competency hearing for Luscombe; the district court’s
observation of Luscombe did not suggest any need for such hearing; and the
magistrate judge found that Luscombe validly waived his right to counsel. Further,
Luscombe does not suggest that he suffers from a mental illness or impairment. For
these reasons, and in light of the fact that Luscombe acted cogently at trial, “the
evidence does not raise doubts sufficient to find an abuse of discretion.” Turner, 644
F.3d at 726.

      Accordingly, we hold that the district court did not err in failing to sua sponte
revoke Luscombe’s right to self-representation on the first day of trial or to hold a
competency hearing.3 Similarly, it did not abuse its discretion in declining to grant a


       3
        Luscombe also argues that the district court undermined his right to a fair trial
by frequently interrupting him and giving him advice on how to be more effective in
his self-representation. We find this argument to be unconvincing. While a “pro se
defendant must be allowed to control the organization and content of his own
defense, to make motions, to argue points of law, to participate in voir dire, to


                                            -8-
new trial on this basis. See United States v. Anwar, 880 F.3d 958, 969 (8th Cir. 2018)
(standard of review).

                                           B.

       Next, we consider whether the district court erred by terminating Luscombe’s
self-representation during the third day of trial and in directing standby counsel to take
over his defense. We review de novo the district court’s decision to terminate the
defendant’s right to self-representation. Mabie, 663 F.3d at 328. Again, the
government urges us to apply plain-error review, but we decline to reach the issue
because we can affirm even under de novo review.

        The right to self-representation is not absolute. United States v. Krug, 822 F.3d
994, 1000 (8th Cir. 2016) (per curiam). The district court may terminate a defendant’s
right to self-representation “when the defendant engages in serious obstructionist
misconduct.” United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010) (internal
quotation marks omitted). Indeed, “[t]he right of self-representation is not a license
to abuse the dignity of the courtroom or a license not to comply with relevant rules of
procedural and substantive law.” Mabie, 663 F.3d at 328 (internal quotation marks
omitted). While defendants “have a right to present unorthodox defenses and argue
their theories to the bitter end,” which may “require the trial court to tolerate numerous
nonsensical pleadings, even occasionally wacky behavior,” the district court need not



question witnesses, and to address the court and jury,” McKaskle v. Wiggins, 465
U.S. 168, 174 (1984), the district court has the inherent authority to manage the
proceedings and to enforce various procedural rules. Moreover, Luscombe was given
fair warning of the difficulties in proceeding pro se, which include the fact that he
was inexperienced in presenting arguments and examining witnesses and likely
unfamiliar with the rules of evidence and criminal procedure.



                                           -9-
suffer through disruptive or defiant behavior. United States v. Smith, 830 F.3d 803,
810 (8th Cir. 2016) (internal quotation marks omitted).

       Although the district court did not make a clear finding on this issue, after
carefully reviewing the trial record, we conclude that the totality of Luscombe’s
behavior supported the court’s decision to terminate his self-representation. See Lane
v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990) (noting that “[w]e may affirm a
judgment on any ground supported by the record even if not relied upon by the district
court”). Indeed, and as mentioned above, Luscombe repeatedly and frequently defied
the district court’s orders not to argue with witnesses, not to interrupt witnesses, not
to interject his own testimony during his examination of witnesses, to speak clearly
and slowly for the jury and court reporter, and to speed up his cross examinations.
Luscombe was repeatedly admonished by the district court to follow its directives, and
his right to self-representation was terminated only after fair warning that continued
misconduct would result in such an action. Luscombe’s conduct was more than just
poor “lawyering”—it interrupted the trial process and was seriously obstructive. See
Wiggins, 465 U.S. at 173 (“[A]n accused has a Sixth Amendment right to conduct his
own defense, provided . . . that he is able and willing to abide by rules of procedure
and courtroom protocol.”). Further, Luscombe attempted to serve a number of
harassing subpoenas on victims in the case, which were quashed by the magistrate
judge, and he sent threatening emails to government witnesses and his standby
attorney during the course of the trial, prompting the magistrate judge to revisit his
bond conditions and later order him jailed.4 See, e.g., Mabie, 663 F.3d at 329


       4
        Luscombe asserts that this conduct should not be considered because the
district court did not explicitly or implicitly base its decision to revoke his right to
self-representation on it. First, he points out that he attempted to serve the subpoenas
before the trial began, and that if the district court was truly concerned about this
behavior, it could have terminated his right to self-representation at that time.



                                         -10-
(explaining that repeated in-court interruptions, attempted use of subpoenas to harass
witnesses, and the mailing of a threatening letter to his attorney justified terminating
defendant’s right to self-representation). Such actions further evince a disregard for
the rules and support a finding that the totality of Luscombe’s conduct was seriously
obstructive to the proceedings. Cf. Smith, 830 F.3d at 810-11 (district court erred in
terminating right to self-representation when defendant failed to appear at a pretrial
hearing, to respond to the government’s proposed jury instructions and plea offer, to
submit a statement of the case, and to confer with the government’s counsel about
these issues). Accordingly, we hold that the district court did not err in terminating
Luscombe’s right to self-representation on the third day of trial.

                                          III.

      Lastly, we consider Luscombe’s argument that his sentence was a product of
procedural errors and was substantively unreasonable. We review the sentence
imposed by the district court for an abuse of discretion. United States v. Bryant, 606
F.3d 912, 918 (8th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 46 (2007)).




Second, he notes that although he sent the threatening emails during the course of the
trial, his bond was revoked only after his self-representation was terminated.
However, as noted above, “[w]e may affirm a judgment on any ground supported by
the record even if not relied upon by the district court.” Lane, 899 F.2d at 742. In
any event, the facts in the record suggest that the trial court decided to terminate
Luscombe’s self-representation based partly on these actions. Indeed, the district
court was aware of this conduct—for example, it discussed the quashing of the
subpoenas on the second day of trial, and the first threatening email was sent between
the second and third days of trial. That the district court was initially patient with
Luscombe, electing to terminate his self-representation only after numerous incidents
and warnings, including the subpoenas and emails, supports our conclusion.



                                         -11-
       In conducting this review, we “initially review a sentence for significant
procedural error and then, if necessary, for substantive reasonableness.” Id. “In
reviewing a sentence for significant procedural error,” we review the “district court’s
factual findings for clear error and application of the Guidelines de novo.” Id. Such
errors include failing to calculate, or incorrectly calculating, the Guidelines range;
treating the Guidelines as mandatory; failing to consider the § 3553(a) factors; basing
the sentence on clearly erroneous facts; and failing to sufficiently explain the sentence.
Id.

       If there is no procedural error, we then consider the substantive reasonableness
of the sentence under the totality of the circumstances. Id. at 920-21. The sentencing
court abuses its discretion if it fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or commits a clear error of judgment in weighing the appropriate factors. Id.
at 921. “[I]t will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.
2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008)).

       Luscombe argues that the district court committed a procedural error and
imposed a substantively unreasonable sentence because it failed to explain why it
varied upward from his advisory range of 97 to 121 months imprisonment to 180
months imprisonment. Further, he suggests the district court incorrectly varied
upward based on factors already taken into account by the Guidelines and points out
that the government did not request an upward variance. He also complains that the
resulting sentence exceeds those in other fraud cases.




                                          -12-
       Contrary to Luscombe’s arguments, the district court adequately explained the
basis for the upward variance in light of the § 3553(a) factors. Accordingly, we find
no procedural error. Indeed, the court indicated that it considered the information
contained in the pre-sentence investigation report, the evidence presented at trial, and
the parties’ submissions, and it explicitly considered this information in light of the
§ 3553(a) factors. In particular, it focused on the fact that Luscombe executed a
“virtually identical scheme just immediately preceding this scheme” and on
Luscombe’s refusal to accept responsibility for, or show any remorse over, his actions.
The district court noted that Luscombe’s refusal to acknowledge his crimes separated
“this case from 99 percent of every other case that comes in for sentencing” and that
his tendency to blame his conduct on a motorcycle accident that killed his then
girlfriend was “disturbing.” This was a sufficient explanation for the sentence and the
court’s upward variance. See United States v. Richart, 662 F.3d 1037, 1049 (8th Cir.
2011) (district court adequately explained upward variance where it stated that it
considered § 3553(a) factors and gave reasons for the sentence); see also United States
v. Benton, 627 F.3d 1051, 1055 (8th Cir. 2010) (“Although the court could have made
specific reference to other factors relevant under § 3553(a), we are satisfied that the
court was aware of the statute and adequately considered it in determining the
appropriate sentence.”).

       Similarly, we find no substantive error. “When the district court imposes a
sentence outside the Guidelines range, . . . [we] ‘may consider the extent of the
deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.’” United States v.
Osei, 679 F.3d 742, 747 (8th Cir. 2012) (quoting Gall, 552 U.S. at 51). Again, the
district court stated that it considered various § 3553(a) factors in light of the facts of
the case, and it was within the court’s discretion to decide how much weight to give
each factor—even if it arrived at a sentence that was significantly longer than the high




                                           -13-
end of Luscombe’s Guidelines range. See United States v. Gasaway, 684 F.3d 804,
808 (8th Cir. 2012).

       The remainder of Luscombe’s arguments are equally unpersuasive. First, the
district court was allowed to vary upwards on factors already accounted for by the
Guidelines. See United States v. David, 682 F.3d 1074, 1077 (8th Cir. 2012)
(“[F]actors that have already been taken into account in calculating the advisory
Guidelines range can nevertheless form the basis of a variance.”). Second, that the
government did not seek an upward variance does not mean that the sentence was
substantively unreasonable. See Gasaway, 684 F.3d at 806, 808 (holding that the
district court did not abuse its discretion in weighing the relevant § 3553(a) factors
when it imposed a sentence that was nearly double what the government
recommended). Third, although Luscombe suggests that his sentence is unreasonable
because it is longer than the average sentence in fraud cases, for the reasons set forth
above, we are satisfied that the district court did not abuse its discretion in arriving at
its sentence under the totality of the circumstances and in light of the relevant
§ 3553(a) factors.

      Accordingly, we reject Luscombe’s argument that his sentence was procedurally
flawed and substantively unreasonable.

                                           IV.

      For these reasons, we affirm the judgment of the district court.
                      ______________________________




                                           -14-
