          Case: 18-10140   Date Filed: 06/12/2019   Page: 1 of 18


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10140
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:17-cr-20582-JEM-1


UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                 versus

RAKEEM ASAAD DAVIS,
a.k.a. Poo Poo,

                                                        Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 12, 2019)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Rakeem Davis appeals his conviction and sentence for unlawful possession of

a firearm and ammunition. He argues that he is entitled to a new trial for two reasons:

(1) the district court failed to conduct an inquiry into his counsel’s pretrial motion to

withdraw; and (2) the court failed to give a special instruction to the jury to ensure

unanimity with respect to the factual grounds of conviction. He also challenges his

sentence, arguing that the court procedurally erred by failing both to verify that he

and his counsel had reviewed the presentence investigation report and to calculate

the guideline range. After careful review, we reject these arguments and affirm.

                                           I.

      Davis was indicted in August 2017 for possession of a firearm and

ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The

indictment charged possession of a Browning 9mm handgun and ten rounds of 9mm

ammunition on July 29, 2017. Davis pled not guilty.

      About two weeks before the trial was scheduled to start in late October 2017,

Davis’s counsel, Ruben Garcia, who had been appointed in early September 2017

under the Criminal Justice Act, 18 U.S.C. § 3006A, moved to withdraw. Counsel

sought withdrawal due to “unreconcilable differences about the conduct of the

Defendant’s defense and because Mr. Davis does not trust counsel and he wishes to

proceed to trial.” Counsel explained that he had met with Davis four times and had

gone over the evidence, jury instructions, voir dire questions, the government’s


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intent to introduce Rule 404(b), Fed. R. Evid., evidence, and a plea offer and

proposed factual proffer. At the last conference, according to counsel, Davis had

“angrily ended” the conversation and asked for Garcia to withdraw. Counsel wrote

that “Davis does not believe undersigned counsel is acting in Defendant’s best

interest and believes that counsel wants the Defendant to plead guilty.”

Nevertheless, counsel stated that he had informed the government that Davis was

going to trial.

       The district court denied the motion a few days later at a status conference.

The court stated that it had reviewed the motion and the reasons given therein. The

court then addressed Davis as follows:

       Mr. Davis, I just want to tell you, you can replace him with any lawyer
       you want if you can hire a lawyer, but you got a competent lawyer. Mr.
       Garcia is a competent lawyer that has been tried and tested. We have -
       - he has tried many cases in front of me. He is a competent lawyer. He
       may not be telling you what you want to hear, but I bet he’s telling you
       what the law is. And if you find another lawyer, I want to tell you that
       he better be ready to go to trial next week because that’s when the trial
       is set. Excuse me. A week from Monday.

               And whether -- it seems to be the motion du jour over at the
       prison now that a week or two before trial, they say oh, I don’t like my
       lawyer anymore, he’s not giving me good advice and I’m not going to
       take it anymore, I want a new lawyer and then try to get a continuance.
       I don’t know for what reason, but it’s not happening. The case is going
       to trial.




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Without asking to hear from Davis or Garcia, the court found that Garcia was “more

than capable of representing [Davis]” in this “very simple case” and denied the

motion to withdraw.

      The case proceeded to trial. A confidential informant (“CI”) testified that he

met up with Davis and Emmanuel Duncanson on July 28. According to the CI,

Duncanson asked the other two if they had a gun, and Davis said he could get one.

The CI further testified that Davis gave directions to an apartment. On the way,

Duncanson announced that he wanted to kill a man named Ike for interfering with

his sister’s drug business.    At the apartment, the CI attested, Davis showed

Duncanson two handguns and a rifle, which were lying on a bed. Duncanson

selected one of the handguns, and Davis carried it out of the house. The CI then

drove Duncanson and Davis to an apartment complex where they spotted Ike. The

CI explained that when Davis refused to shoot at Ike, Duncanson grabbed the gun

and fired several shots out of the car window, which missed, as the CI sped away

from the scene.

      At 2:00 a.m. the next morning, July 29, federal law-enforcement agents

executed a search warrant at the apartment where Davis had retrieved the gun before

the shooting. Davis and a woman were present in the apartment. The search

revealed two handguns:        (1) a Browning 9mm loaded with three rounds of

ammunition; and (2) an SCCY 9mm loaded with seven rounds of ammunition.


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According to the CI, both guns were present at the apartment before the shooting,

but only the SCCY 9mm was used in the shooting. A federal law-enforcement agent

testified that Davis was not charged with possession of the SCCY 9mm because

there was no evidence it had moved in interstate commerce. The parties stipulated

that Davis was not permitted to possess a firearm due to a prior felony conviction.

      Based upon the parties’ joint proposed jury instructions, the district court

informed the jury that “[t]he sole count of the indictment charges the Defendant with

being a felon in possession of a firearm and ammunition,” and that the jury would

be given a copy of the indictment. The court instructed the jury that the offense had

two elements: (1) knowing possession of a firearm or ammunition in or affecting

interstate commerce, (2) that occurred after having been convicted of a felony. The

court cautioned the jury that Davis was “on trial only for the specific crime charged

in the indictment” and that it was the jury’s job “to determine from the evidence in

this case whether the Defendant is guilty or not guilty of that specific crime.” The

court further advised that the “verdict, whether guilty or not guilty, must be

unanimous. In other words, you must all agree.” Finally, when going over the

general verdict form—which simply asked the jury to find whether Davis was guilty

or not guilty—the court reiterated to the jury that the verdict needed to be unanimous.

Defense counsel did not object to these instructions.

      The jury unanimously found Davis guilty.


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      Davis’s presentence investigation report (“PSR”) recommended a total

offense level of 24 and criminal-history category of V.         This established a

recommended guideline imprisonment range of 92 to 115 months. Davis did not file

any objections. The government filed a sentencing memorandum.

      The district court began sentencing by stating that it had reviewed the PSR,

the government’s sentencing memorandum, and the addendum to the PSR, and the

court noted that no objections had been made. The court then asked the parties for

their views on an appropriate sentence. The government asked for a sentence at the

“high end of the guidelines,” citing the seriousness of the offense conduct and

Davis’s substantial criminal history. Davis’s counsel argued for a sentence at “the

low end of the guidelines, 92 months,” referencing the PSR and asserting that

Davis’s criminal history was due to drug abuse, lack of guidance, and other

circumstantial factors. Davis personally requested 92 months.

      The district court sentenced Davis to 100 months. The court explained that it

believed Davis was “a danger to the community” but that it wanted to give Davis an

opportunity to reform by sentencing him “toward the low end of the guideline

range,” though not “all the way down to 92.” Davis did not raise any objections at

sentencing. He now appeals.

                                        II.




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      Davis first appeals the denial of his counsel’s motion to withdraw, which we

will characterize as a “substitution motion.” Davis argues that the district court erred

in failing to conduct an inquiry into why he wanted new counsel and that he was

prejudiced by counsel’s continued representation during trial.

      Substitution motions must be decided “in the interests of justice,” 18 U.S.C.

§ 3006A(c), a standard that “contemplates a peculiarly context-specific inquiry,”

Martel v. Clair, 565 U.S. 648, 663 (2012). In reviewing substitution motions, we

consider several factors, including the timeliness of the motion; the adequacy of the

court’s inquiry into the merits of the motion; and the asserted cause for the motion,

including the extent of the conflict or breakdown in communication between the

defendant and his counsel. Id.; United States v. Calderon, 127 F.3d 1314, 1343 (11th

Cir. 1997). “Because a trial court’s decision on substitution is so fact-specific, it

deserves deference[.]” Martel, 565 U.S. at 663–64. We may overturn it “only for

an abuse of discretion.” Id. at 664; Calderon, 127 F.3d at 1343.

      The first factor—the timeliness of the motion—slightly favors denial. While

counsel appears to have promptly moved to withdraw when asked by Davis, the

substitution motion was filed just two weeks before the trial was scheduled to begin

and after a continuance had already been granted. While we see nothing to indicate

intentional delay, we also understand the court’s concern about the potential for

delay. Cf. Robinson v. Boeing Co., 79 F.3d 1053, 1055 (11th Cir. 1996) (“Courts


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have long accepted that resulting delay may justify the exercise of a trial judge’s

discretion to deny substitute counsel in the midst of litigation.”).

       The second factor—the adequacy of the court’s inquiry—cuts in favor of

Davis. As the Supreme Court has stated, “courts cannot properly resolve substitution

motions without probing why a defendant wants a new lawyer.” Martel, 565 U.S.

at 664. The district court must engage in at least some inquiry about “the source and

factual basis” of the defendant’s dissatisfaction with an attorney, even if the judge is

professionally acquainted with the attorney. United States v. Young, 482 F.2d 993,

995 (5th Cir. 1973)1; see also Brown v. United States, 720 F.3d 1316, 1336 (11th

Cir. 2013) (“The trial court is obliged to explore the extent of the conflict and any

breakdown in communication between the lawyer and the client.”). Moreover, such

“an on-the-record inquiry into the defendant’s allegations ‘permit[s] meaningful

appellate review’ of a trial court’s exercise of discretion.” Martel, 565 U.S. at 664.

       The district court here addressed the substitution motion at a hearing and

considered the reasons for withdrawal listed in the motion. But the court did not

probe the extent of the conflict and any breakdown in communication,

notwithstanding the court’s professional familiarity with Davis’s counsel or its




       1
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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doubts about the motivations behind the motion. See Brown, 720 F.3d at 1336;

Young, 482 F.2d at 995.

      Nevertheless, we do not believe that the district court’s failure to probe more

deeply is enough, on this record, to render the court’s ruling an abuse of discretion.

That’s because Garcia, Davis’s counsel, listed the reasons for withdrawal in the

substitution motion, and the court reasonably could have concluded that further

inquiry was unnecessary because the clearly listed reasons did not warrant

substitution. See McKee v. Harris, 649 F.2d 927, 934 (2d Cir. 1981) (“If the reasons

are made known to the court, the court may rule without more.”); cf. Young, 482

F.2d at 995 (stating that inquiry is necessary when the defendant presents a

“seemingly substantial complaint about counsel”). In other words, the third factor—

the asserted cause for the motion—strongly favors denial of the motion.

      “An indigent criminal defendant has an absolute right to be represented by

counsel, but he does not have a right to have a particular lawyer represent him, nor

to demand a different appointed lawyer except for good cause.”            Thomas v.

Wainwright, 767 F.2d 738, 742 (11th Cir. 1985); see United States v. Garey, 540

F.3d 1253, 1263 (11th Cir. 2008) (en banc). Whether good cause exists “cannot be

determined ‘solely according to the subjective standard of what the defendant

perceives.’” Thomas, 767 F.2d at 742 (quoting McKee, 649 F.2d at 932). For that




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reason, “[a] defendant’s general loss of confidence or trust in his counsel, standing

alone, is not sufficient.” Id.

      Here, the substitution motion reveals little more than Davis’s “general loss of

confidence or trust in his counsel,” Garcia. Id. According to the motion, the conflict

between attorney and client was that Garcia wanted Davis to accept the

government’s plea offer, but Davis wanted to proceed to trial. As a result, Davis did

not trust Garcia and did not believe that Garcia was acting in his best interests. In

resolving the motion, the court understood that the nature of the conflict stemmed

from Davis’s dissatisfaction with Garcia’s plea advice, see Doc. 85 at 2 (“He may

not be telling you what you want to hear, but I bet he’s telling you what the law is.”),

which alone does not constitute good cause, see McKee, 649 F.2d at 932–33

(defendant’s dissatisfaction with counsel’s “frank advice” to plead guilty does not

amount to good cause). And the record reflects that Garcia respected Davis’s desire

to proceed to trial and was prepared for it. Because the clearly listed reasons in the

substitution motion did not indicate that Davis could establish good cause, we cannot

say that the court abused its discretion in denying the motion without a probing

inquiry.

      Nevertheless, we acknowledge that our review is inhibited by the district

court’s lack of a formal inquiry. See Martel, 565 U.S. at 664. All we have to go on

is the substitution motion itself. And the motion may not fully convey “the extent


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of the conflict and any breakdown in communication,” which is why further inquiry

by the court is generally necessary. See Brown, 720 F.3d at 1336.

       However, while the district court should have probed the matter more deeply

at the status hearing, and even assuming the court erred in failing to do so, we

conclude that the failure to conduct an inquiry in this case was harmless. 2 See

McKee, 649 F.2d at 933 (“[W]hile [the trial judge] should have conducted a formal

inquiry, the failure to do so in this case was harmless.”). In his briefing on appeal,

Davis does not suggest any other reason beyond those listed in the motion that would

have been elicited by a formal inquiry. His reply brief merely states that he “lacked

confidence in his attorney’s ability or willingness to advocate effectively on his

behalf,” which is not sufficient to warrant substitution. See Thomas, 767 F.2d at

742. Nor can we infer a breakdown in communication from the trial errors allegedly

committed by counsel—asking a particular question on cross-examination and

failing to request a special verdict—since they do not appear to stem in any way

from the dispute that precipitated the substitution motion.                 Aside from those



       2
           Our harmlessness inquiry focuses on the state of facts at the time of the substitution
motion. While Davis argues that the failure to inquire into a substitution motion warrants a new
trial, a remedy some courts have granted in the past, the Supreme Court has now stated that “[t]he
way to cure that error” is to remand to the district court “to decide whether substitution was
appropriate at the time of [the substitution motion].” Martel, 565 U.S. at 666 n.4 (noting that the
court of appeals had “ordered the wrong remedy even assuming the District Court had abused its
discretion in denying Clair’s substitution motion without inquiry”). Because the remedy for a lack
of inquiry would be remand for consideration of the substitution motion, we must consider whether
Davis could show on remand that substitution was appropriate at the time the motion was filed.
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unrelated errors, Davis has pointed us to nothing in the record that would suggest

that the conflict between Davis and Garcia affected Davis’s trial defense.

Accordingly, despite the court’s failure to conduct an appropriate inquiry, we cannot

conclude that Davis was harmed by that failure.

      We therefore affirm the district court’s denial of the substitution motion.

                                          III.

      Davis next argues that the district court plainly erred by failing to instruct the

jury that it was required to reach a unanimous decision about which, if any, firearm

or ammunition Davis possessed, and where and when any possession occurred. He

says that jurors could have made conflicting findings on these points, in violation of

his Sixth Amendment right to a unanimous jury verdict, because the evidence

showed possession of guns or ammunition at three separate points: (1) before the

shooting, when the guns were at the apartment; (2) during the shooting, when the

uncharged gun was used; and (3) after the shooting, when both guns and all

associated ammunition were found in separate locations in the apartment.

      We review this argument for plain error because Davis did not object to the

jury instructions before the district court. United States v. Felts, 579 F.3d 1341,

1343 (11th Cir. 2009). Under the “plain error” standard, the defendant must

demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error

affected substantial rights. Id. at 1344. “An error is not plain unless it is contrary to


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explicit statutory provisions or to on-point precedent in this Court or the Supreme

Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation

marks omitted). Further, “[j]ury instructions will not be reversed for plain error

unless the charge, considered as a whole, is so clearly erroneous as to result in a

likelihood of a grave miscarriage of justice, or the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Starke, 62

F.3d 1374, 1381 (11th Cir. 1995) (quotation marks omitted).

      “[A] jury in a federal criminal case cannot convict unless it unanimously finds

that the Government has proved each element.” Richardson v. United States, 526

U.S. 813, 817 (1999). But “a federal jury need not always decide unanimously

which of several possible sets of underlying brute facts make up a particular element,

say, which of several possible means the defendant used to commit an element of

the crime.” Id. For instance, jury disagreement about whether a robber used a knife

or a gun—a disagreement about means—would not matter so long as the jury

“unanimously concluded that the Government had proved the necessary related

element, namely, that the defendant had threatened force.” Id.

      Relying on Richardson’s distinction between elements and means, several of

our sister circuits have concluded that jury unanimity is not required as to the

particular firearm or ammunition possessed for purposes of § 922(g). E.g., United

States v. Pollock, 757 F.3d 582, 587–88 (7th Cir. 2014); United States v. Talbert,


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501 F.3d 449, 451–52 (5th Cir. 2007); United States v. DeJohn, 368 F.3d 533, 542

(6th Cir. 2004); United States v. Verrecchia, 196 F.3d 294, 298–301 (1st Cir. 1999).

These circuits have reasoned that unanimity is not required because the particular

firearm or ammunition possessed is not an element of the crime under § 922(g) but

instead the means used to satisfy the element of “any firearm or ammunition.” E.g.,

DeJohn, 368 F.3d at 541–42.

      Here, Davis has not established plain error. Davis has identified no “on-point

precedent in this Court or the Supreme Court” holding that a special unanimity

instruction is required in the circumstances presented by this case. See Hoffman,

710 F.3d at 1232. Nor is it obvious or clear that the matters he wished to have

decided by special verdict are elements of the offense requiring unanimity, as

opposed to “possible sets of underlying brute facts [which] make up a particular

element” for which unanimity is not required. Richardson, 526 U.S. at 817. For

example, numerous circuits have held that jury unanimity is not required as to the

particular firearm or ammunition possessed. Pollock, 757 F.3d at 587–88; Talbert,

501 F.3d at 451–52; DeJohn, 368 F.3d at 542; Verrecchia, 196 F.3d at 298–301.

Accordingly, even assuming the court erred, the error was not “plain.”

      Davis’s reliance on United States v. Garcia-Rivera, 353 F.3d 788 (9th Cir.

2003), is unavailing. First, that decision is from the Ninth Circuit, so it cannot

establish a “plain” error in this Circuit. See Hoffman, 710 F.3d at 1232.


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      Second, even if Garcia-Rivera were somehow binding here, it is not on point.

The indictment in Garcia-Rivera charged possession of a firearm over a time frame

between May 19, 2001, and June 7, 2001. 353 F.3d at 790. At trial, the court

instructed the jury that, to find the defendant guilty, it must find that the possession

occurred (a) uninterrupted between May 19, 2001, and June 7, 2001; (b) about a

week after the purchase of the firearm; and (c) on June 7, 2001. Id. The court told

the jury that it “must unanimously agree that the possession occurred during (a)

above, or on (b) or (c) above.” Id. The Ninth Circuit held that this instruction was

“fatally ambiguous” because the “jury could have concluded that they were required

to decide unanimously only that possession occurred during any of the three times

enumerated, not that they had to unanimously agree on which one.” Id.

      No similar ambiguity is present here. The indictment charged possession of

a single firearm and ammunition on a specific date, July 29, which was after the

shooting. And the district court’s unanimity instructions, though general, were not

“fatally ambiguous” like the choose-your-own-adventure instructions in Garcia-

Rivera. The court here repeatedly instructed the jury that its verdict must be

unanimous and the jurors “must all agree.” So even assuming there were multiple

possible sets of facts on which Davis’s conviction could have been based, jurors

would have understood from the court’s instructions that they were required to “all

agree” on which set of facts grounded the conviction. The instructions, considered


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as a whole, were not “so clearly erroneous as to result in a likelihood of a grave

miscarriage of justice” or to “affect the fairness, integrity, or public reputation of

judicial proceedings.” Starke, 62 F.3d at 1381.

      For these reasons, Davis has not shown that the district court plainly erred in

failing to give a specific instruction on unanimity.

                                         IV.

      Finally, Davis contends that the district court procedurally erred at sentencing

in two ways: (1) failing to verify that Davis and his counsel had reviewed the PSR

and addendum, as required by Rule 32, Fed. R. Crim. P.; and (2) failing to calculate

the applicable guideline range at sentencing. We review these arguments for plain

error because they were raised for the first time on appeal. See United States v.

Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (applying plain-error review

where the defendant failed to object to a claimed procedural error).

      Sentencing courts “should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range,” which is “the starting point and the

initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007). The failure to

calculate the guideline range is a “significant procedural error.” Id. at 51. Before

calculating the guideline range, the district court “must verify that the defendant and

the defendant’s attorney have read and discussed the [PSR] and any addendum to

the report.” Fed. R. Crim. P. 32(i)(1)(A). No specific inquiry is required for the


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district court to meet its obligation under Rule 32, as long as the record indicates that

counsel reviewed the PSR with the defendant. See United States v. Aleman, 832

F.2d 142, 144 & n.6 (11th Cir. 1987) (applying a prior version of Rule 32(i)(1)(A)).

      Here, Davis has not established plain error. Even assuming that the district

court erred by failing to verify that Davis and his counsel had reviewed the PSR and

by failing to state the guideline range on the record at sentencing, Davis has not

shown that these errors affected his substantial rights. See Felts, 579 F.3d at 1343.

      First, the sentencing transcript indicates that Davis’s counsel had reviewed the

PSR. After the court noted that there were no objections to the PSR, counsel argued

for a sentence at “the low end of the guidelines, 92 months,” which was the range

recommended by the PSR, and he cited facts from the PSR in support of that request.

Although the court did not verify that Davis personally had reviewed the PSR,

nothing in the record indicates that sentencing would have gone any differently had

the court personally questioned Davis.

      Second, the record is clear that the district court implicitly adopted the PSR’s

guideline range of 92 to 115 months. And both parties framed their arguments based

on that range. The government asked for a sentence at “the high end of the guidelines

in this case[,] which is 115 months.” Davis’s counsel argued for a sentence at “the

low end of the guidelines, 92 months.” The district court then sentenced Davis

“toward the low end of the guideline range,” but not “all the way down to 92.”


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Because there was no confusion about the guideline range on which the sentence

was based, Davis has not shown that the court’s failure to state the guideline range

on the record affected his substantial rights.

                                          V.

      We affirm Davis’s conviction and sentence.

      AFFIRMED.




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