                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0395n.06

                                         Case No. 08-6062

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED

 UNITED STATES OF AMERICA,                            )                            Jun 13, 2011
                                                      )                      LEONARD GREEN, Clerk
         Plaintiff-Appellee,                          )
                                                      )       ON APPEAL FROM THE
                v.                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE EASTERN
 TERRANCE LOWDERMILK,                                 )       DISTRICT OF TENNESSEE
                                                      )
         Defendant-Appellant.                         )
                                                      )
 _______________________________________              )

BEFORE: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.



       ALICE M. BATCHELDER, Chief Judge. Terrance Lowdermilk brings this appeal

following his resentencing for possession with intent to distribute narcotics (two counts) and being

a felon in possession of ammunition. Lowdermilk claims that the district court deprived him of his

right of allocution at the sentencing hearing, and that the United States breached its plea agreement

with him by refusing to move for a downward departure from the Sentencing Guidelines. In a

supplemental brief, Lowdermilk further argues that the district court lacked jurisdiction over him,

that the district court committed various sentencing errors, and that the district court failed to

determine that there was a factual basis for his guilty plea before entering judgment. Each claim is

without merit, so for the reasons set forth below, we AFFIRM the decision of the district court.
No. 08-6062, United States v. Lowdermilk

                                                   I.

        On April 18, 2002, Defendant Lowdermilk pled guilty to (1) possession with intent to

distribute cocaine, (2) possession with intent to distribute marijuana, and (3) being a felon in

possession of ammunition.

        A subsequent Presentence Report (“PSR”) showed that the Defendant was a career offender

because he had two prior felony convictions for crimes of violence. Specifically, the Defendant had

two convictions for aggravated assault, which he admitted in the plea agreement.

        The Defendant did not object to the PSR, which the district court adopted in its entirety,

including the determination that the Defendant was a career offender. At the sentencing hearing, the

United States noted the Defendant’s cooperation:

        [W]e’ve had several conversations with the defendant. He is assisting us. And
        although we don’t have anything yet we can point to . . . in terms of substantial
        assistance, we believe that may be possible in the future. And because of his
        assistance, . . . despite his past record, which obviously is reflected in his guideline
        range, we think that a sentence in the bottom half of the guideline range would be
        warranted in this case.

The court imposed a sentence of 151 months, which was the bottom of the Guidelines range. The

Defendant did not object to the sentence, and no direct appeal was filed.

        The Defendant filed a timely motion pursuant to 28 U.S.C. § 2255 claiming that his counsel

was ineffective for not filing a direct appeal that he had requested. The district court agreed and

allowed the Defendant to file a timely, albeit delayed, appeal. In his appeal, the Defendant argued,

inter alia, that he was entitled to resentencing in light of United States v. Booker, 543 U.S. 220

(2005), and on February 5, 2008, this court vacated the Defendant’s sentence and remanded for

resentencing under the now-advisory Sentencing Guidelines.

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No. 08-6062, United States v. Lowdermilk

          Shortly after this court remanded for resentencing, the Defendant filed a series of pro se

motions, including an attempt to compel the United States to request a downward departure under

U.S.S.G. § 5K1.1 at his resentencing. The district court appointed counsel to represent the

Defendant at resentencing, and counsel filed a supplement to the Defendant’s pro se motion to

compel, noting that the Defendant had “insist[ed] that th[e] motion be pursued and ha[d] advised that

he wishes to argue his position himself.”

          The resentencing hearing was held on August 21, 2008, and the district court noted that the

applicable Guidelines range was unchanged from the original sentencing proceeding, but that it was

no longer mandatory. The court also noted that it was free to impose a sentence above or below the

Guidelines range and that it must take into account the sentencing goals of 18 U.S.C. § 3553(a).

          The district court then invited the parties to speak. Counsel for the Defendant mentioned that

the Defendant had represented himself prior to counsel’s appointment and had filed several pro se

motions which were later withdrawn, after “lengthy discussions” with counsel. Counsel also stated

that the Defendant was “insistent” that the court “consider his motion to compel the government to

file a motion . . . for a downward departure,” even though counsel could find no legal basis for such

action.

          The United States responded that the Defendant’s cooperation had not resulted in any new

investigations or new charges being filed. Moreover, although the Defendant made himself available

as a potential witness, he was never called to testify. The United States thus determined that the

Defendant’s assistance had not risen to a level warranting a motion for downward departure.




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No. 08-6062, United States v. Lowdermilk

          The district court then addressed the Defendant, emphasizing that an “attorney knows what

the law is and what are persuasive arguments and what are not persuasive arguments,” and that

defendants are not entitled to represent themselves while simultaneously represented by counsel.

It concluded that, “[s]ince you have a lawyer—you have a very competent and capable lawyer

representing you, the Court will only hear arguments from [defense counsel.] . . . [T]he Court will

not permit you to make arguments on your own . . . .”

          Through counsel, the Defendant then summarized his sentencing memorandum, noting his

traumatic childhood, his substance abuse problems, his stable work history, his family situation, and

his participation in educational programs while incarcerated. He also argued that his career-offender

classification over-represented his criminal history.

          The court then invited the Defendant to speak personally. The Defendant apologized for his

actions and announced his intent to rehabilitate himself and become a “productive citizen in society.”

The court then inquired, “[a]nything further?” and the Defendant continued, stating for the record

that he and his attorney “disagree on a certain couple of items in this proceeding here.”

          The district court then stated that it had considered all of the evidence proffered by the

parties, that the Defendant was properly classified as a career offender, and that its earlier sentence

of 151 months was “entirely appropriate.” The court then asked whether the Defendant had any

objections to the sentence imposed that had not already been raised, and the Defendant answered,

“[n]o.”

          This timely appeal followed. In a brief submitted by counsel, the Defendant raised two

issues. The Defendant then moved, pro se, for permission to file a supplemental brief with several


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No. 08-6062, United States v. Lowdermilk

additional issues. This court granted the motion. The Defendant’s counsel promptly moved to

withdraw, referencing his responsibility as an officer of the court not to present frivolous or meritless

issues. This court granted the motion to withdraw and ordered the Defendant to proceed pro se.

Subsequently, the Defendant filed his supplemental brief, which this court will address only because

the Defendant was expressly authorized to file it.

                                                    II.

        The Defendant claims that the district court lacked jurisdiction to hear his case. The

Defendant was charged with and convicted of violations of federal law in the Eastern District of

Tennessee, the same district in which the underlying conduct took place. It is well-settled that

federal district courts have “original jurisdiction, exclusive of the courts of the States, of all offenses

against the laws of the United States.” 18 U.S.C. § 3231. Accordingly, the district court had

jurisdiction.

                                                   III.

        Prior to the resentencing hearing, the Defendant filed a pro se motion to compel the

government to file a motion for downward departure. The Defendant’s appointed counsel told the

court that he did not feel comfortable presenting what he believed was a frivolous argument, and,

because the Defendant was represented, the court did not permit the defendant to argue the motion

himself. The court did, however, permit the Defendant to speak prior to resentencing. The

Defendant now claims that “the sentencing court committed reversible error when it failed to allow

Mr. Lowdermilk an opportunity to speak and to provide the court with information to mitigate his

sentence.” On appeal, this court reviews de novo claims that the right of allocution was denied.


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No. 08-6062, United States v. Lowdermilk

United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995). Because the district court permitted the

Defendant to speak prior to sentencing, and a defendant has no right to combine self-representation

with representation by counsel, the Defendant’s argument fails.

                                                 A.

        “Before imposing sentence, the court must . . . address the defendant personally in order to

permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim.

P. 32(i)(4)(A)(ii); see also Green v. United States, 365 U.S. 301, 305 (1961) (directing sentencing

courts to “leave no room for doubt that the defendant has been issued a personal invitation to speak

prior to sentencing”). Here, the Defendant received a full, fair opportunity to allocute during the

resentencing hearing, and he took advantage of that opportunity. His attorney presented extensive

argument on his behalf, explaining factors that might persuade the court to enter a below-Guidelines

sentence. The court then allowed the Defendant to speak, and he did so. When he had finished, the

court asked whether the Defendant had “anything further,” and the Defendant briefly continued. The

record shows that the Defendant was not denied his right of allocution, and that the Defendant has

blatantly misrepresented the facts.

                                                 B.

        The Defendant apparently has confused his right of allocution with the court’s discretionary

decision as to whether to allow the defendant to represent himself while he is simultaneously

represented by counsel.1 Regardless of how he presents the issue, his argument fails.




        1
            So-called “hybrid representation.”

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No. 08-6062, United States v. Lowdermilk

        “It is well settled that there is no constitutional right to hybrid representation.” United States

v. Cromer, 389 F.3d 662, 681 n.12 (6th Cir. 2004) (citing United States v. Mosely, 810 F.2d 93, 97-

98 (6th Cir. 1987)). Moreover, Eastern District of Tennessee Local Rule 83.4(c) states that a

defendant may not represent himself pro se after appearance of counsel unless the court has issued

an order of substitution. The court may, however, in its discretion, “hear a party in open court,

notwithstanding the fact that the party is represented by an attorney.” Id.

        A district court’s refusal to allow hybrid representation will only constitute error if the district

court abused its discretion in denying hybrid representation. See Mosely, 810 F.2d at 98. Here, the

district court described the Defendant’s lawyer as “a very able lawyer” and later as “a very competent

and capable lawyer.” The Defendant did not dispute that. Nor does the Defendant present any

compelling arguments in his briefs that the district court abused its discretion in denying hybrid

representation. Accordingly, the district court’s refusal to allow the Defendant to represent himself

while simultaneously represented by counsel was a proper exercise of its discretion.

                                                   IV.

        The Defendant argues that the government breached its plea agreement with the Defendant

when the government failed to file a motion requesting a downward departure from the Sentencing

Guidelines. Because the United States explicitly retained “complete discretion in determining

whether a departure motion will be filed,” the government did not breach the plea agreement.

        The plea agreement contained the following provision:

        The defendant acknowledges that . . . the United States retains complete discretion
        in determining whether a departure motion will be filed . . . . The defendant
        acknowledges that the decision as to whether to file any such motion is not


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No. 08-6062, United States v. Lowdermilk

        reviewable by the court except under the limited circumstances set forth in . . . Wade
        v. United States, 504 U.S. 181 (1992).

(emphasis added). At both the sentencing hearing and the resentencing hearing, the government

explained that the Defendant had cooperated, but that his cooperation did not rise to the level of

substantial assistance. Because “the United States retain[ed] complete discretion in determining

whether a departure motion will be filed,” and it adequately explained why it did not file such a

motion, it did not breach the plea agreement.

        Additionally, the plea agreement prohibits the Defendant from seeking review of the

government’s decision not to file a motion for downward departure absent a showing that the

prosecutor’s refusal to file a motion for downward departure was based on an unconstitutional

motive. See Wade v. United States, 504 U.S. 181, 185-86 (1992). Although the Defendant alleges

that the United States refused to file a departure motion because of the Defendant’s race and because

the Defendant filed numerous documents in this court and the district court, he fails to provide any

substantiation whatsoever for his claims, and the accused attorneys specifically deny the Defendant’s

claims. Therefore, the plain language of the agreement prohibits the review of the government’s

decision not to file a departure motion.

        Accordingly, the government did not breach the plea agreement.

                                                  V.

        In his supplemental brief, the Defendant claims several errors were made at his sentencing.

He alleges that the district court

        failed to begin at the proper base offense level, . . . gave an unreasonable amount of
        weight to one particular § 3553(a) factor, . . . relied on clearly erroneous findings of
        facts, failed to inquire into the substance of [defendant’s] objections to [the

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No. 08-6062, United States v. Lowdermilk

         presentence investigation report], failed to adhear [sic] to a categorical approach [in
         determining whether a prior conviction was a predicate for career-offender status],
         and failed to consider all the § 3553(a) factors.

The Defendant also argues that the PSR was “lace[d] with errors and inaccuracies” regarding his

classification as a career offender pursuant to § 4B1.1 and the computation of his criminal history

points. For the reasons discussed below, none of these claims has merit.

                                                         A.

         First, the district court did not err in determining that the Defendant was a career offender.

This court must “first ensure that the district court committed no significant procedural error,” e.g.,

by failing to properly calculate the Guidelines range or consider the § 3553(a) sentencing factors, by

selecting the sentence based upon clearly erroneous facts, or by failing to adequately explain the

chosen sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Because the Defendant did not

object to the sentence when it was imposed, this court reviews the procedural component for plain

error. See United States v. Phillips, 516 F.3d 479, 486-87 (6th Cir. 2008).

         The PSR lists two prior aggravated assault2 convictions, and the Defendant never objected

to the PSR. Additionally, the Plea Agreement, which the Defendant knowingly and voluntarily

signed, contains the following paragraph:

         As of May 29, 2001, the defendant had at least one prior conviction of a crime
         punishable by a term of imprisonment exceeding one year. Specifically, the
         defendant was convicted by the State of Tennessee of at least the following two
         offenses: (1) aggravated assault on June 21, 1993, and (2) aggravated assault on
         December 20, 2000.



        2
          The Sentencing Guidelines explicitly list aggravated assault as a “crime of violence” for purposes of the
career-offender provision. U.S.S.G. § 4B1.2 n.1.

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No. 08-6062, United States v. Lowdermilk

In his supplemental brief, the Defendant attacks the court’s use of his 2000 aggravated assault

conviction as a predicate offense for career-offender status. Specifically, he alleges that he was

actually charged with and convicted of a lesser offense—domestic assault— and that the documents

indicating an aggravated assault conviction contained a “clerical error.” However, the Defendant

provides no evidence in support of his claim, and the copy of the indictment, which the Defendant

himself attached to his brief, clearly shows that a state grand jury charged him with violating T.C.A.

§ 39-13-102, the Tennessee statute criminalizing aggravated assault. Morever, a defendant may not

challenge the validity of a predicate state court conviction in a federal court proceeding except on

the ground that the state conviction was obtained without the assistance of counsel. Custis v. United

States, 511 U.S. 485, 496 (1994). Accordingly, the district court did not commit plain error in

determining that the Defendant qualified as a career offender. The Defendant’s arguments that the

district court failed to begin at the proper base offense level, relied on clearly erroneous findings of

facts, and failed to adhere to the categorical approach all fail.

        Second, the district court did not fail to consider § 3553(a) factors. After correctly stating

the Guidelines range and entertaining argument from the parties, the district court explicitly rejected

the Defendant’s argument that classifying him as a career offender would overstate the number and

severity of his prior offenses. The district court specifically reviewed the § 3553(a) factors and

concluded that a sentence of 151 months’ imprisonment was “adequate, but not longer than

necessary” to achieve the statutory objectives for sentencing. Accordingly, the Defendant has not

shown, and is unable to show, that the district court committed plain error in considering the §

3553(a) factors.


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No. 08-6062, United States v. Lowdermilk

                                                 B.

        After finding that a sentence is procedurally sound, this court then considers whether the

district court abused its discretion in selecting the length of the sentence. Gall, 552 U.S. at 56. A

sentence may be substantively unreasonable if it is selected arbitrarily, is based upon impermissible

factors, fails to properly account for pertinent § 3553(a) factors, or gives unreasonable weight to a

particular factor. See id. at 56-58; United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005). This

court applies a presumption of reasonableness to sentences within the Guidelines range. United

States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008).

        The Defendant is unable to show that the district court abused its discretion in selecting the

length of the sentence. The record shows that the sentence was selected after careful consideration

of the § 3553(a) factors. The sentence was within the Guidelines range, so it is presumed reasonable,

and the Defendant has not rebutted that presumption. Accordingly, the Defendant’s argument that

the district court gave an unreasonable amount of weight to one particular § 3553(a) factor fails.

                                                 VI.

        The Defendant’s final argument is that the district court failed to determine that there was

a factual basis for his guilty plea before entering judgment pursuant to Fed. R. Crim. P. 11(b)(3).

This argument is not reviewable because this court remanded the Defendant’s original appeal solely

for resentencing and for reinstatement of some of the Defendant’s collateral claims. The remand did

not provide an opportunity for the Defendant to challenge his guilty plea.

        Even if the Defendant could now challenge the district court’s determination of the factual

adequacy of his plea, his challenge would fail. Each count of the indictment was read in open court,


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No. 08-6062, United States v. Lowdermilk

and the district court emphasized the essential elements of each count. The district court found that

the “defendant is fully competent and capable of entering an informed plea and . . . his plea of guilty

is a knowing and voluntary plea supported by an independent basis in fact containing each of the

essential elements of the offense.” (emphasis added). Accordingly, the district court clearly met its

Rule 11(b)(3) obligations. See United States v. McCreary-Redd, 475 F.3d 718, 722 (6th Cir. 2007)

(noting that where a crime is easily understood, a summary of the charges in the indictment is

sufficient to establish a factual basis under Rule 11).

                                                 VII.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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