                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0046n.06
                             Filed: January 15, 2008

                                                  06-2457

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellant,                           )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR THE
JAHMAL WHITFIELD,                                      )    EASTERN DISTRICT OF MICHIGAN
                                                       )
        Defendant-Appellant.                           )




        Before: DAUGHTREY and COLE, Circuit Judges; COLLIER,* District Judge.


        PER CURIAM. The defendant, Jahmal Whitfield, was indicted on three counts:

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), possession

with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), and possession of

cocaine base in violation of 21 U.S.C. § 844(a). Moments before his trial began and after

the jury had been seated, the defendant made a pro se motion for new counsel arguing

that his appointed counsel was unprepared. The court denied the motion. After the

government rested, the defendant again addressed the court, requesting that he be

allowed to telephone a witness who had not shown up. The judge declined to interrupt the

proceedings. The jury subsequently convicted Whitfield on all three counts. At sentencing,

        *
          The Hon. Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee,
sitting by designation.
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United States v. Whitfield

the district court calculated the guidelines range at 24 to 30 months but rejected this range

as inadequate, based on consideration of the other factors listed in 18 U.S.C. § 3553(a).

Instead, the court sentenced the defendant to 60 months on each of counts one and two,

to be served concurrently, and 12 months on count three, also to be served concurrently.

The defendant now appeals his conviction, contending, first, that the district court abused

its discretion by denying his motion for new counsel and by denying his request to secure

his witness. He also appeals his sentence, arguing that the court violated Federal Rule of

Criminal Procedure 32(h) by failing to give the defendant notice that the court was

contemplating an upward variance and, second, that his sentence is substantively

unreasonable. For the reasons set out below, we affirm the convictions but, based on the

district court’s noncompliance with Rule 32(h), we vacate the defendant’s sentence and

remand for a new sentencing hearing.


                    I. FACTUAL AND PROCEDURAL BACKGROUND


       The drug-trafficking charges in this case arose from the seizure of contraband

during the execution of a search warrant at the Detroit residence where the defendant was

living with a woman named Angela Johnson. Among other items seized by police in the

kitchen of the apartment were a film container with 3.9 grams of cocaine base, a larger

plastic baggie containing loose marijuana, 13 smaller baggies containing amounts of

marijuana that appeared to be packaged for re-sale (for a total weight of 26.51 grams of

marijuana), and a digital scale. The police also recovered $557 in cash from a night stand


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in the bedroom where Whitfield and Johnson were found, a loaded .25 caliber handgun

under a couch cushion in the living room, and a Martin rifle propped up against a wall in

the dining room.


       Whitfield was indicted and the case went to trial. Minutes before trial began, the

defendant informed the court that he no longer wanted to be represented by his “present

counsel,” citing “difficulties” between the two and “failure to communicate over the last

couple of months.” The district judge asked whether Whitfield had “another lawyer here

. . . to step in and take his place,” to which the defendant responded in the negative. The

crux of the complaint appeared to be that the lawyer “ha[d] not got in touch with any of my

witnesses or anything of that nature.” The district judge concluded that the defendant was

“stalling” and denied relief, after reviewing two letters that the defendant had sent to the

court at some point prior to trial and determining that in neither letter did the defendant

mention dissatisfaction with his attorney or a request to replace his attorney.         The

defendant asserted that something had been said during a hearing three days earlier

before the magistrate judge about his dissatisfaction with his lawyer, but the district judge

pointed out that Whitfield had appeared in his court on several occasions and had not

raised the issue, causing the judge to conclude that the defendant’s last minute request

was only for one purpose, i.e., “to delay the proceedings.”


       After the government rested its case, the district judge inquired whether the

defendant would be presenting any proof and learned that although Whitfield proposed to


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call Angela Johnson as a witness, she had not been subpoenaed and was not present and

available to testify. The defendant asked to be allowed to contact her by telephone, but

when the judge asked about his purpose in calling her as a witness, the defendant replied,

“Because it’s her house, your Honor, and this is where the incident occurred at.” The

record is otherwise devoid of any indication about the nature or substance of Johnson’s

proposed testimony. After further discussion concerning Johnson’s absence, the district

judge ordered the resumption of trial without making an explicit ruling on the defendant’s

request to telephone Johnson.


       The defendant testified in his own defense, admitting that the marijuana and crack

cocaine were his but denying that he was involved in selling the drugs, claiming instead

that they were there solely for his personal use. He also maintained that the guns were not

his, that he had never seen the rifle before and had no idea where it came from, and that

the pistol was Angela Johnson’s. The jury concluded otherwise and convicted Whitfield

on all three counts of the indictment.


       At the sentencing hearing, neither side objected to the presentence report, in which

the defendant’s offense level was calculated at 15 and his criminal history at III, resulting

in a guidelines range of 24-30 months for counts one and two and not more than 12

months for count three. The report did not recommend a variance. Whitfield’s attorney

asked the court to sentence at the low end of the range.           In response, the judge

announced that “for the reasons that will be stated in a written Opinion that will be issued


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this afternoon,” he had concluded that the guidelines “are inadequate for sentencing in this

case.” The court then orally imposed a sentence of 60 months on each of counts one and

two, to be served concurrently, and 12 months on count three, also to be served

concurrently, three years of supervised release, and a special assessment of $225, and

recommended drug testing and/or treatment “at the discretion and direction of the United

States Probation Department.” After imposing the sentence the judge reiterated that he

would issue a written opinion that afternoon “with respect to why the Court is deviating from

the advisory sentencing guidelines” and asked, “Is there anything further either counsel

wish to place on the record in this matter?” Defense counsel responded, “Just for the

record, your Honor, we would object to the Court exceeding the guidelines in this case.”


        In the written opinion that followed the hearing, the district court offered several

reasons for the upward variance: the defendant’s behavior throughout the proceedings,

including his “challenging” of his attorney and the court, and the defendant’s incredible

testimony; the fact that, given the proof in the record, the defendant could have been

charged with possession of a firearm in furtherance of a drug-trafficking crime, which would

have carried a minimum five year sentence, and with the possession of the weapons in the

house; the defendant’s “clear pattern of disrespect for the law his entire adult life” as

reflected by his three prior felony convictions, his arrest on five additional charges for which

no disposition was shown in the presentence report, his multiple traffic citations “for failure

to comply with the law,” and his child support arrearage of over $23,000; the defendant’s

repeated violation of probation; and the fact that none of his relatively light previous

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sentences deterred him from committing crimes again. Finally, the district court cited the

need to protect the public from the defendant, whom the district judge described as a

“career criminal,” even though Whitfield was not indicted as such.


                                     II. DISCUSSION


A. Request for Substitute Counsel


       Whitfield contends that his conviction should be reversed because the district court

refused to continue the trial in order to allow him to obtain the services of another counsel.

The court obviously could have conducted a more searching inquiry of Whitfield’s attorney

before denying the defendant’s motion. However, in view of the untimeliness of the

defendant’s request and the district court’s broad discretion in this area, we conclude that

no Sixth Amendment violation occurred in this instance.


       Although an essential element of the right to assistance of counsel is the right to

counsel of one’s choice, that right is not absolute. See United States v. Mooneyham, 473

F.3d 280, 291 (6th Cir. 2007). “An indigent defendant has no right to have a particular

attorney represent him and therefore must demonstrate good cause to warrant substitution

of counsel.” Id. (internal quotations and citation omitted). Moreover, we review a district

court’s decision denying a defendant’s motion for substitution of counsel or an attorney’s

motion to withdraw for abuse of discretion only. See United States v. Chambers, 441 F.3d

438, 446 (6th Cir. 2006). In deciding whether a district court has abused its discretion, we


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“must consider the timeliness of the motion; the adequacy of the court’s inquiry into the

defendant’s complaint; and whether the conflict between the attorney and client was so

great that it resulted in a total lack of communication preventing an adequate defense.”

Mooneyham, 473 F.3d at 291 (internal quotations and citation omitted). “In addition,

consideration of such motions requires a balancing of the accused’s right to counsel of his

choice and the public’s interest in the prompt and efficient administration of justice.” Id.

(internal quotations and citation omitted). Moreover, the Supreme Court has held that

“[t]rial judges necessarily require a great deal of latitude in scheduling trials. . . .

Consequently, broad discretion must be granted trial courts on matters of continuances;

only an unreasoning and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay violates the right to the assistance of counsel.” Morris v.

Slappy, 461 U.S. 1, 11-12 (1983)(internal quotations and citation omitted). As one circuit

court has interpreted this holding, when “the granting of the defendant’s request would

almost certainly necessitate a last-minute continuance, the trial judge’s actions are entitled

to extraordinary deference.” United States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995).


       Taking the Mooneyham factors into account, we conclude that the denial of

Whitfield’s motion was not an abuse of the district court’s broad discretion. The timeliness

of the motion obviously weighs against the defendant. Even assuming that the defendant

raised the issue before the magistrate judge, that event came only three days before trial

and, therefore, also occurred late in the proceedings. See United States v. Trujillo, 376

F.3d 593, 606-07 (6th Cir. 2004) (three days before trial held untimely). Moreover, as the

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district court noted, Whitfield had several chances to raise the issue in the period leading

up to trial.


        The one factor that weighs in the defendant’s favor is the adequacy – or, as here,

the apparent inadequacy – of the district court’s inquiry into the substance of defendant’s

complaint, but it nonetheless fails to tip the scales in his favor. The reason for requiring

such an inquiry is to give the defendant the opportunity to explain the basis for his

dissatisfaction with counsel and to establish good cause for the appointment of substitute

counsel. See United States v. Jennings, 945 F.2d 129, 132 (6th Cir. 1991) (remanding “for

the purpose of allowing the district court to personally inquire from each defendant his

reasons for dissatisfaction with counsel”). Here, the defendant was given that opportunity

– the judge invited him, twice, to express his complaint. The judge also appropriately

asked the defense attorney to respond to Whitfield’s accusations. See Chambers, 441

F.3d at 447 (holding district court’s inquiry adequate where defendant was given

opportunity to explain alleged conflict and counsel “was also given an opportunity to

respond and gave a detailed explanation of the history of his representation” of the

defendant). Unfortunately, counsel’s explanation was less than detailed, and the court’s

inquiry of him was less than searching. Nevertheless, counsel did assure the judge that

he had spoken with his client on more than one occasion and that they had “[gone] over

everything.” He also implied that his client was trying to stall when he expressed his

frustration that Whitfield “doesn’t want to take a plea. But he doesn’t want to go to trial.

So I really don’t know where he is coming from.” Hence, it was not wholly unreasonable

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for the judge, armed with the information he had gathered at this point and with a jury

already seated, to conclude that the defendant was simply trying to delay trial.


       The last factor, the “actual extent of the conflict between the defendant and

counsel,” Chambers, 441 F.3d at 447, is difficult to evaluate on this record given the

superficiality of the inquiry conducted by the district court. We cannot say, however, that

it was unreasonable for the district court to conclude that the attorney’s assurance that he

had “[gone] over everything” with his client indicated that communication had not

completely broken down. See United States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999)

(no abuse of discretion where “the district court was not satisfied that communication had

truly broken down, only that there was some lack of understanding or lack of confidence

between [the client] and his lawyer”). Yes, the inquiry into the situation could have been

conducted more throughly. But, after considering all the factors together, we find no abuse

of discretion in the district court’s determination that the accused’s invocation of his right

to counsel of choice was outweighed by the public’s interest in prompt and efficient

administration of justice.


B. Right to Compulsory Process


       The defendant complains on appeal that the district court violated his right to

compulsory process in failing to grant a continuance so that he could produce Angela

Johnson as a witness at trial. The record shows conclusively, however, that the defendant

did not make a motion for a continuance and, indeed, had never issued a subpoena for

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Johnson, instead relying on her to appear voluntarily. Even if we were to interpret the

defendant’s request that he be allowed to contact Johnson by telephone as the functional

equivalent of a motion for a continuance, we could not say that the district court abused

its discretion in failing to interrupt the trial on the basis of the meager information supplied

by the defense with regard to Johnson’s availability and the substance of her proposed

testimony.


       We have focused on several factors when reviewing a district court’s denial of a

motion to continue in order to obtain a witness, including “the diligence of the defense in

interviewing witnesses and procuring their presence, the probability of procuring their

testimony within a reasonable time, the specificity with which the defense is able to

describe their expected knowledge or testimony, the degree to which the testimony is

expected to be favorable to the accused, and the unique or cumulative nature of the

testimony.” Bennett v. Scroggy, 793 F.2d 772, 774 (6th Cir. 1986)(internal quotations and

citations omitted). We have further noted that “[t]here are no mechanical tests for deciding

when a denial of a continuance is so arbitrary as to violate due process. The answer must

be found in the circumstances present in every case, particularly in the reasons presented

to the trial judge at the time the request is denied.” Id. Additionally, in order to prevail the

defendant must show actual prejudice. See id. In the case of a continuance for the

purposes of locating a witness, that means “the moving party must show that the witness

would have given substantial favorable evidence and that he was available and willing to

testify.” United States v. Foster, 128 F.3d 949, 952 (6th Cir. 1997). Given the defendant’s

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lack of diligence in securing his witness’s presence and the lack of an adequate

explanation to the district court with regard to the relevance of her testimony, as well as the

defendant’s failure to establish actual prejudice on appeal, we find no basis on which to

find that Whitfield was denied a fair trial in this respect.


C. Reasonable Notice under Rule 32(h)


       The defendant argues that his sentence should be vacated because the district

court failed to give reasonable notice pursuant to Federal Rule of Criminal Procedure 32(h)

of its intent to impose an upward variance and the grounds for doing so. That rule provides:


       Before the court may depart from the applicable sentencing range on a
       ground not identified for departure either in the presentence report or in a
       party’s prehearing submission, the court must give the parties reasonable
       notice that it is contemplating such a departure. The notice must specify any
       ground on which the court is contemplating a departure.


Subsection (h) was added to Rule 32 by amendment in 2002 in order to codify the

Supreme Court’s holding in Burns v. United States, 501 U.S. 129, 138 (1991), that the

guarantee in Rule 32 of the defendant’s right “to comment on . . . matters relating to the

appropriate sentence” necessarily included the right to notice of a court’s intent to depart

upward and the grounds for such a departure. We have subsequently held that Rule 32(h)

is applicable not only to guideline departures (as it was traditionally) but also to variances.

See United States v. Cousins, 469 F.3d 572, 580 (6th Cir. 2006).




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        It is undisputed that the district court did not give the defendant reasonable notice

of its intent to impose an upward departure and that the possibility was not reflected in the

PSI or in the parties’ submissions. Indeed, the government concedes that the district court

erred but asserts that the court’s noncompliance with Rule 32(h) must be reviewed for plain

error only, given that the defendant objected at sentencing only to the magnitude of the

upward departure and not specifically to a violation of the rule. In contrast, the defendant

argues for de novo review, which, to our knowledge has been applied only in an

unpublished case in this circuit.1 Because we conclude that the defendant is entitled to

relief under either standard of review, we find it unnecessary to resolve this issue here and

apply the more stringent standard simply for ease of analysis.


        Pursuant to Federal Rule of Criminal Procedure 52(b), “plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.” An appellate court must find “(1) error, (2) that is plain, and that (3) that affects



        1
          In United States v. W illiams, No. 03-3575, 2004 W L 1043096, *1 (6th Cir. May 6, 2004)
(unpublished), a panel of this court held that when the defendant was given “no m eaningful opportunity to
object to a district court’s decision at sentencing,” the failure to lodge an objection based on Rule 32(h) should
not be considered waived and, therefore, that plain error review requiring proof of actual prejudice is not
appropriate. The W illiams court reasoned that this conclusion is im plicit in Burns itself, because in that case,
the Suprem e Court was aware that there was no objection but nonetheless did not apply plain error review.
See W illiams, 2004 W L 1043096, at *1; see also United States v. Matheny, 450 F.3d 633, 637 n. 2 (6 th Cir.
2006)(noting discrepancy in this circuit’s and other circuits’ case law regarding whether plain error or harm less
error review is appropriate). Moreover, although not cited by the W illiams court, the rule announced by this
court in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), provides the definition of what constitutes a
“m eaningful opportunity to object,” holding that before plain error review is appropriate, the defendant m ust
have rem ained silent after the district judge specifically asked for objections following im position of sentence.
Moreover, later cases have m ade clear that a district court satisfies the Bostic rule only by asking specifically
for further objections that have not previously been raised and that general questions such as “Anything further
for the record?” are not sufficient. See, e.g., United States v. Thomas, 498 F.3d 336, 340 (6th Cir. 2007).

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substantial rights.” United States v. Meeker, 411 F.3d 736, 741 (6th Circuit, 2005)(citing

Johnson v. United States, 520 U.S. 461, 466-67 (1997)) (internal quotations omitted).

Generally, in order to show that substantial rights are adversely affected, the defendant

“must demonstrate prejudice as a result of the error.” Id. at 741-42 (citing United States

v. Olano, 507 U.S. 725, 734-35 (1993)) (internal quotations omitted). Finally, even where

all three conditions are met, “an appellate court may then exercise its discretion to notice

a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 741 (citing Johnson, 520 U.S. at 467) (internal

quotations omitted).


       Although conceding plain error, the government argues that the defendant has failed

to establish prejudice. To establish prejudice in Rule 32(h) cases, we have said that the

defendant must explain how, if given the opportunity, he would have rebutted the district

court’s rationale.    See Meeker, 411 F.3d at 742 (“where a defendant has had an

opportunity to review the evidence relied upon by the district court, an explanation of how

the defendant was prejudiced is required”); but see Cousins, 469 F.3d at 581 (prejudice

prong of plain error review was met when the defendant argued that “such notice would

have permitted his counsel to address the district court’s concerns regarding his prior

criminal history and potential (or lack thereof) for rehabilitation”). In challenging the

substantive reasonableness of his sentence, the defendant has laid out at least some of

the arguments that, presumably, he would have made to the district court if given the

opportunity.

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       The government nonetheless argues that Whitfield’s substantive unreasonableness

argument is insufficient to establish prejudice for purposes of his Rule 32(h) argument

because “[the] defendant does not dispute the district court’s factual findings; rather, he

argues with the district court’s assessment of the impact of those findings on his sentence.”

We think that this argument begs the question. However, the purpose behind the notice

requirement in Rule 32(h) is to promote “focused, adversarial resolution of the legal and

factual issues” relevant to sentencing so that the district court may arrive at a sentence that

is sufficient, but not greater than necessary, to comply with the purposes of the section

3552(a) factors. See Burns, 501 U.S. at 137. Here, because the district judge did not

state his reasons in open court, let alone do so after giving adequate pre-hearing notice

of those reasons, there was not – and could not have been – a “focused adversarial

resolution” regarding Whitfield’s sentence. This error was sufficiently significant, in our

judgment, to have “seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” It follows that the district court’s sentencing order must be vacated and the

case remanded for a new sentencing hearing.


D. Substantive Reasonableness of the Sentence


       Because this case is being remanded, there is no reason to analyze fully the

substantive reasonableness of the sentence previously imposed by the district court.

However, we would be remiss in failing to point out that the defendant’s 60-month term of

incarceration represents a 100 percent variance from the top of the applicable guideline


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range of 24-30 months. While the recent Supreme Court opinion in Gall v. United States,

128 S. Ct. 586, 596 (2007), calls for the extension of a significant degree of deference by

a reviewing court to the sentencing determinations of a district court, that opinion also

reaffirms that in carrying out the “general directive” in Section 3553(a) to “impose a

sentence sufficient but not greater than necessary,” if a district court decides that “an

outside-guidelines sentence is warranted, [it] must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of the variance.”


       We find troubling, for example, the district court’s emphasis on the defendant’s

behavior at trial, which the court interpreted as having “challeng[ed]” his attorney and the

court. While we are not in a position to judge demeanor of witnesses in the trial court, our

reading of the colloquies between Whitfield and the district judge would indicate that in

attempting to protect his right to counsel of choice, the defendant may have been vocal but

was not rude, disrespectful, or unnecessarily disruptive. Equally troubling is the district

court’s consideration of Whitfield’s prior arrests for which there were no known dispositions.

The guidelines’ policy statements indicate that in order to support an upward departure

based on “prior similar adult conduct not resulting in a criminal conviction,” there must be

“reliable information” that the conduct occurred. United States v. Jones, 444 F.3d 430, 434

(5th Cir. 2006)(citing U.S.S.G. § 4A1.3(a)). Moreover, according to at least one circuit

court, “arrests, standing alone, do not constitute reliable information.” Id.




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                                 III. CONCLUSION


        For the reasons set out above, we AFFIRM the defendant’s convictions but

VACATE the district court’s sentencing order and REMAND the case for a new sentencing

hearing.




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