                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 10 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-10216

              Plaintiff - Appellee,               D.C. No. 2:06-CR-00310-HDM-
                                                  PAL
  v.

JOSEPH HALL,                                      MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the District of Nevada, Las Vegas
                  Howard D. McKibben, District Judge, Presiding

                            Submitted August 12, 2010 **
                              San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       Joseph Hall appeals his conviction on one count (Count 3) of the indictment

and his sentence for all three counts of his conviction for possession with intent to

distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm.

      Hall contends that there was insufficient evidence to convict him of Count 3

of the indictment, which charged Hall with possession with intent to distribute 50

grams or more of crack cocaine on August 23, 2006. We review claims of

insufficient evidence de novo. See United States v. Sullivan, 522 F.3d 967, 974

(9th Cir. 2008) (per curiam). “There is sufficient evidence to support a conviction

if, viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (internal quotation marks, citation, and emphasis omitted).

      The crack cocaine referred to in Count 3 was recovered pursuant to a search

warrant executed on the apartment where Hall was staying. A rational trier of fact

could have found beyond a reasonable doubt that Hall had constructive possession

of the crack cocaine because: (1) Hall was the only person that the police observed

over several days who had keys to the apartment; (2) police observed Hall going

into the apartment and staying inside it; (3) the cocaine was found in a large bag

along with money used by an undercover policeman to buy cocaine from Hall just

the day before; and (4) Hall had recently sold cocaine to an undercover policeman

twice. Viewing the evidence in the light most favorable to the prosecution, this is


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sufficient evidence from which a rational trier of fact could have found Hall had

constructive possession of the cocaine. See United States v. Young, 420 F.3d 915,

917 (9th Cir. 2005); United States v. Scott, 74 F.3d 175, 178 (9th Cir. 1996).

      Hall contends that he did not knowingly and intelligently waive his right to

counsel when he decided to represent himself at sentencing. The trial judge

conducted a proper Faretta 1 hearing to determine Hall’s competence to represent

himself. We review the validity of a Faretta waiver de novo. United States v.

Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004). On appeal, the burden of

establishing the validity of a waiver of counsel is on the government, and the court

should “indulge in every reasonable presumption against waiver.” United States v.

Forrester, 512 F.3d 500, 506 (9th Cir. 2008) (internal quotation marks omitted).

      In evaluating the validity of a defendant’s waiver of his right to counsel, we

review whether the district court insured that the defendant understood the nature

of the charges against him, the possible penalties, and the dangers and

disadvantages of self-representation. Id. However, “[n]either the Constitution nor

Faretta compels the district court to engage in a specific colloquy with the

defendant.” Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000) (en banc).

Furthermore, the district court should focus on the defendant’s understanding of


      1
          Faretta v. California, 422 U.S. 806, 808–09 (1975).

                                          3
the importance of counsel, rather than the defendant’s understanding of the

substantive law or the procedural details. Id. at 1119.

      The record demonstrates that Hall understood the nature of the charges

against him. He had the trial transcript and the Presentence Report, and he had

been present at the proceedings. Also, the district court explained to Hall that the

court would consider prior convictions when fashioning Hall’s sentence. Hall also

understood the possible penalties he faced, as the district court discussed with Hall

that he might receive a life sentence as recommended in the Presentence Report.

The district court also granted Hall’s request for the grand jury transcripts and the

police reports for his prior convictions and his request that he be allowed to use the

law library while in jail to prepare for the sentencing hearing. The district court

extensively warned Hall about the dangers and disadvantages of self-representation

in a colloquy during his Faretta hearing. The district court also appointed the

counsel that had represented Hall at trial to remain as stand-by counsel to advise

Hall. Importantly, neither Hall, his attorney, nor anyone else ever advised the

district court that Hall was not mentally competent to represent himself, nor does

the record reveal any reason to think that he was not competent.

      Hall contends that the government failed to prove his prior felony drug

convictions, which were used to enhance his sentence to life without the possibility


                                           4
of parole. We review de novo whether sufficient evidence supports the finding that

a defendant had been convicted of a crime. United States v. Okafor, 285 F.3d 842,

847 (9th Cir. 2002). “Evidence of the prior conviction is sufficient if, viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the fact of the prior conviction beyond a reasonable doubt.” Id at

847-48.

      Based on the documents of conviction provided by the government

regarding Hall’s prior convictions, the fact that Hall admitted that he was the

person named in those documents, and the fact that Hall failed to raise valid

objections to his prior convictions, the district court did not err in finding that the

government proved Hall’s two California felony drug convictions beyond a

reasonable doubt.

      Next, Hall contends that 21 U.S.C. § 841, the statute of conviction, violates

the Eighth and Fourteenth Amendments. We review the constitutionality of

criminal statutes de novo. United States v. Harding, 971 F.2d 410, 412 (9th Cir.

1992). We have already upheld the constitutionality of a life sentence pursuant to

21 U.S.C. § 841 under the Eighth and Fourteenth Amendments. See Harding, 971

F.2d at 414 (holding that greater sentences for possession of crack cocaine than for

possession of powder cocaine do not deny equal protection under the Fourteenth


                                            5
Amendment); United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991)

(per curiam) (holding that the disparity in sentencing between crack cocaine and

powder cocaine is a rational distinction and that sentences based on it are not

disproportionate in violation of the Eighth Amendment).

      Finally, we note there is new legislation just passed by Congress to reduce

the disparity between sentencing for powder cocaine and crack cocaine. Fair

Sentencing Act of 2010, S. 1789, 111th Cong. (2010). This legislation will not

affect Hall’s sentence, however, because: (1) he is a career offender, and the new

legislation does not change the mandatory life sentence; and (2) the new legislation

is not retroactive. Thus, the new legislation does not present a reason for us to

remand this case.

      AFFIRMED.




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