                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                        Nos. 06-3464; 06-3465; 06-3466
                                 ___________
                                       *
United States of America,              *
                                       *
            Appellee,                  * Appeal from the United States
                                       * District Court for the District of
      v.                               * Minnesota.
                                       *
Tommie Perris Crawford, also known *
as “Baby Crip,”                        *
                                       *
            Appellant.                 *
                                 ___________

                             Submitted: April 10, 2007
                                Filed: June 6, 2007 (Corrected: 06/11/2007)
                                 ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

      After his conviction on gun and drug offenses, Tommie Perris Crawford
received permission from the district court1 to proceed pro se at sentencing. On
appeal, Crawford argues the district court erred in allowing him to represent himself
without first obtaining a competency evaluation. Crawford also contends he did not
knowingly and intelligently waive his right to counsel and therefore his Sixth



      1
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
Amendment right to counsel was violated. For the reasons stated below, we affirm
Crawford’s conviction and sentence.

I.    BACKGROUND

       A grand jury indicted Crawford for three felony offenses: Count 1, possession
with intent to distribute 500 grams or more of cocaine, a violation of 21 U.S.C.
§ 841(a)(1); Count 2, possession of a firearm in furtherance of a drug trafficking
crime, a violation of 18 U.S.C. § 924(c); and Count 3, possession of a firearm by a
felon, a violation of 18 U.S.C. § 922(g). The government filed notice stating its intent
to seek enhanced penalties on Count 1 based upon Crawford’s prior felony drug
conviction. See 21 U.S.C. § 851. With the sentencing enhancement, Crawford faced
a mandatory minimum term of imprisonment of ten years (120 months) on Count 1.
See 21 U.S.C. § 841(b)(1)(B). For Count 2, Crawford faced a consecutive mandatory
minimum term of imprisonment of five years (60 months). See 18 U.S.C. § 924(c).

      Crawford proceeded to trial with the assistance of two attorneys from the
Federal Public Defender’s Office and was found guilty of all charges. The jury
rendered its verdict on January 9, 2006. Crawford’s trial counsel did not file post-trial
motions within the seven days allowed under the Federal Rules of Criminal Procedure.
See Fed. R. Crim. P. 29(c)(1) and 33(b)(2). After trial Crawford filed numerous pro
se motions, including motions for a new trial and motions for a judgment of acquittal.
On February 17, 2006, Crawford filed a motion to proceed pro se. On April 10, 2006,
at Crawford’s request, Crawford’s appointed counsel moved to withdraw.

       On May 11, 2006, the district court issued a consolidated order ruling on
defendant’s motions, including his motion to proceed pro se and his counsel’s motion
to withdraw. The section of the order addressing Crawford’s motion to proceed pro
se is quoted here in full:



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             After the jury reached its verdict, defendant filed a motion to
      represent himself pro se. Defendant also requested that his counsel
      withdraw from his case so that he may proceed pro se, and his counsel
      has moved to withdraw. The Constitution guarantees an accused the
      right to self-representation. Faretta v. California, 422 U.S. 806, 836
      (1975). However, when an accused manages his own defense, he
      relinquishes many of the traditional benefits associated with the right to
      counsel. Id. at 835. Therefore, in order for a defendant to represent
      himself, the defendant must “knowingly and intelligently” forgo those
      relinquished benefits. Id.

             Here, the Court is satisfied that defendant is “knowingly and
      intelligently” relinquishing those benefits. In his moving papers,
      defendant clearly and unequivocally declares that he wants to represent
      himself and does not want counsel. Further, defendant has filed several
      motions pro se, often with accompanying memoranda. Although the
      Court finds his legal propositions to be without merit, defendant’s papers
      indicate that he is “literate, competent, and understanding,” and that
      defendant here is “voluntarily exercising his informed free will” to
      proceed pro se. Id. Finally, the Court notes that because defendant did
      not request to proceed pro se until after the jury rendered its verdict,
      defendant was represented by experienced and competent counsel before,
      during and after trial. Therefore, the Court grants defendant’s motion to
      proceed pro se. The Court will, however, appoint Attorney Andrea K.
      George, of the Office of the Federal Public Defender, as standby legal
      counsel to defendant. See, e.g., United States v. Schmitt, 784 F.2d 880,
      882 (8th Cir. 1986).

Order at 10-11 (footnotes omitted).

      Crawford’s sentencing hearing was held on September 21, 2006. At the
beginning of the hearing, the district court confirmed that Crawford was appearing pro
se and that Ms. George was standby counsel. The district court did not engage
Crawford in a colloquy regarding his self-representation. The district court sentenced
Crawford to a total term of imprisonment of 180 months. Crawford received the


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statutory mandatory minimum of 120 months for Count 1 and a concurrent term of
120 months on Count 3, along with the statutory mandatory minimum consecutive
term of 60 months on Count 2. This appeal followed.

II.   DISCUSSION

        Crawford argues the district court erred by allowing him to represent himself
after trial. In presenting his appeal, Crawford assumes he was pro se for post-trial
motions and for sentencing. Crawford first contends the district court should have
examined whether he was competent to waive his Sixth Amendment right to counsel.
He also argues his waiver of the right to counsel was not knowing and intelligent. He
asserts he suffered prejudice as a result of his lack of counsel because an attorney
could have more persuasively argued his post-trial motions and could have capitalized
on the additional discretion allowed to district judges in sentencing after United States
v. Booker, 543 U.S. 220 (2005).

       As a preliminary matter, we must determine whether Crawford was without
counsel in relation to post-trial motions. There is nothing in the record that
demonstrates Crawford’s counsel had been relieved of their appointed representation
when post-trial motions were due; they represented Crawford up until the district
court’s May 11 order, when the court granted Crawford’s motion to proceed pro se
and counsel’s motion to withdraw. Indeed, Crawford did not file his motion to
proceed pro se until almost one month after post-trial motions were due. Thus,
Crawford was not pro se for purposes of post-trial motions. While Crawford’s
counsel did not file post-trial motions on his behalf, any arguments based upon that
failure to file should be raised in a proceeding brought under 28 U.S.C. § 2255.
United States v. Santana, 150 F.3d 860, 863 (8th Cir. 1998) (explaining that claims
alleging ineffective assistance of counsel should normally be addressed in § 2255
proceedings). Therefore, we consider Crawford’s claims only as they relate to
sentencing.

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      A.     Competency Evaluation

      Crawford asserts the district court erred by not ordering an evaluation to
determine whether Crawford was competent to waive his right to an attorney.
Crawford contends the district court should have exercised its authority to order a
competency evaluation, even without a request from the government or the defense.
See 18 U.S.C. § 4241(a), (b) (stating that a court “shall order” a competency hearing
upon its own motion if “there is reasonable cause to believe” a defendant is not
competent and that a court “may order” a psychological evaluation prior to such a
hearing).

       Before allowing a defendant to waive his right to counsel, a court must be
satisfied that the defendant is competent to do so. Godinez v. Moran, 509 U.S. 389,
400 (1993). Generally, a court need not sua sponte order an evaluation to determine
a defendant’s competence to waive counsel; “[a]s in any criminal case, a competency
determination is necessary only when a court has reason to doubt the defendant’s
competence.” Id. at 401 n.13. Unless “evidence raises sufficient doubt” about a
defendant’s competence, further inquiry is not required. Branscomb v. Norris, 47 F.3d
258, 261 (8th Cir. 1995); see also United States v. Day, 998 F.2d 622, 627 (8th Cir.
1993) (holding that a district court did not err when it did not conduct a competency
hearing prior to allowing a defendant to proceed pro se at sentencing). Whether a
competency evaluation is warranted is a determination within the discretion of the
district court. See United States v. Vamos, 797 F.2d 1146, 1150-51 (2d Cir. 1986).

        Here, Crawford’s trial counsel did not request a competency evaluation prior
to the court’s consideration of Crawford’s motion to proceed pro se. The district court
presided over Crawford’s trial and had the opportunity to observe him directly, and
it did not find a competency evaluation necessary. Cf. id. at 1150 (noting that
“deference is owed to the district court’s determinations based on observation of the
defendant during the proceedings”). The district court specifically concluded

                                          -5-
Crawford was competent, noting that Crawford’s multiple filings in the district court
indicated he was “literate, competent, and understanding.” The district court did not
abuse its discretion by not ordering a competency evaluation.

       B.     Sixth Amendment Waiver

       Since the Supreme Court’s decision in Faretta v. California, 422 U.S. 806
(1975), “[i]t is . . . settled law that a criminal defendant has the right to waive his right
to counsel at trial and to represent himself as long as the waiver is both voluntary, and
intelligently and knowingly made.” Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir.
1988). This right extends to self-representation at sentencing, as well. See Day, 998
F.2d at 626-27 (considering whether a defendant executed a valid waiver of his right
to counsel before proceeding pro se at sentencing). This Court reviews de novo a
district court’s decision to allow a defendant to proceed pro se. United States v.
Mahasin, 442 F.3d 687, 691 (8th Cir. 2006).

       In reviewing a waiver of a defendant’s right to counsel, this Court will uphold
a waiver and conclude it is knowing and intelligent if either (1) the district court
adequately warns the defendant about the dangers and disadvantages of proceeding
pro se or (2) the record as a whole demonstrates “that the defendant knew and
understood the disadvantages of self-representation.” United States v. Stewart, 20
F.3d 911, 917 (8th Cir. 1994). An on-the-record colloquy exploring the dangers of
self-representation is recognized as the preferred method of substantiating a waiver’s
validity. See Meyer, 854 F.2d at 1114-15 (indicating the court favors “a specific
warning on the record of the dangers and disadvantages of self-representation” when
a defendant seeks to proceed pro se). Here, the district court did not engage in a
colloquy with Crawford. The validity of Crawford’s waiver must therefore be
determined by “review[ing] the entire record to determine if the defendant had the
required knowledge from other sources.” United States v. Yagow, 953 F.2d 427, 431
(8th Cir. 1992).

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        In considering the record, we begin with the district court’s order granting
Crawford’s motion to proceed pro se. The district court references Crawford’s many
filings in concluding Crawford was “voluntarily exercising his informed free will” in
deciding to proceed pro se. However, the court does not explain how the filings show
Crawford to be “informed” as to the dangers of self-representation. In its order, the
district court conflates Crawford’s determination to proceed pro se, with his
understanding of the challenges of doing so. One cannot infer from the substance of
the filings that Crawford had the knowledge required to effectively waive his right to
counsel. The district court did not indicate any other grounds supporting its
conclusion that Crawford’s waiver was knowing and intelligent.

       The government does not provide any additional insight into facts and
circumstances demonstrating Crawford possessed the requisite knowledge of the
dangers of pro se representation. The government argues only that the district court
“had confidence that Crawford was aware of the pitfalls of his self-representation and
that he had the required knowledge to represent himself” based upon the district
court’s observations of Crawford at trial and upon the court’s consideration of
Crawford’s filings. The government does not highlight anything about “the particular
facts and circumstances of the case, including the defendant’s background, experience,
and conduct” or “the defendant’s education, his knowledge of or previous contact with
the criminal justice system, his conduct at trial, and his motive for seeking to waive
counsel” that demonstrates Crawford understood the challenges of proceeding pro se.
Yagow, 953 F.2d at 431.

       After a thorough review of the record, we cannot conclude Crawford possessed
the requisite understanding of the challenges of proceeding without counsel to have
knowingly and intelligently waived his right to an attorney. While we recognize “the
Supreme Court [has] adopted a ‘pragmatic approach’ to the issue of Sixth Amendment
waiver of counsel,” Day, 998 F.2d at 626 (quoting Patterson v. Illinois, 487 U.S. 285,

                                         -7-
298 (1988)), the record in this case simply does not provide sufficient indication that
Crawford understood “the possible consequences of a decision to forgo the aid of
counsel[.]” Patterson, 487 U.S. at 292-93. Unlike other instances where we have
upheld a court’s decision to permit a defendant to proceed pro se without the preferred
colloquy, there are no “unique circumstances” justifying a determination that
Crawford knowingly and intelligently waived his right to counsel. Yagow, 953 F.2d
at 432. For example, Crawford did not display “a sophisticated understanding of the
[sentencing] hearing’s purposes and procedure,” Day, 998 F.2d at 627, nor does it
appear his request for self-representation was an attempt to manipulate the court. Cf.
Meyer, 854 F.2d at 1115 (“One other major factor leading us to the conclusion that
there was no violation of the right to counsel is the fact that the record indicates that
[the defendant’s] actions in moving for replacement counsel midway through the trial
were largely obstructionist.”). Based upon the record before us, we cannot conclude
Crawford’s waiver of counsel at sentencing was valid.

       Our conclusion that Crawford did not effectively waive his right to counsel at
sentencing presents a question this court has not specifically decided: whether such
a violation is subject to harmless error analysis. Dicta in Day can be interpreted as
implicitly endorsing harmless error analysis. The defendant in Day proceeded pro se
at sentencing after objecting to three different attorneys appointed to represent him.
Day, 998 F.2d at 626. In finding that the defendant voluntarily, knowingly, and
intelligently waived his right to counsel, the Court concluded its analysis by noting
that “there is nothing in the record to suggest that further delay and a fourth appointed
counsel would have produced a different sentence.” Id. at 627. This suggests that
lack of prejudice suffered by a defendant could be relevant.

       Other circuits have explicitly rejected harmless error analysis for Sixth
Amendment violations at sentencing. See, e.g., United States v. Virgil, 444 F.3d 447,
455-56 (5th Cir. 2006) (holding that Faretta violations, whether at trial or sentencing,
are per se harmful and therefore not subject to harmless error analysis and noting that

                                           -8-
“every other circuit to consider the issue” does not apply harmless error analysis to
Faretta violations); United States v. Salemo, 61 F.3d 214, 221-22 (3rd Cir. 1995)
(declining to apply harmless error analysis when a defendant’s Sixth Amendment right
to counsel was violated at sentencing). In Virgil, the Fifth Circuit reasoned that the
Supreme Court’s decisions finding harmless error inapplicable to the denial of counsel
at trial, United States v. Cronic, 466 U.S. 648, 659 (1984), and on appeal, Penson v.
Ohio, 488 U.S. 75, 88 (1988), equally support the conclusion that the lack of counsel
at sentencing cannot be harmless error. Virgil, 444 F.3d at 456. Salemo describes the
right to counsel at sentencing as “among those constitutional rights which are so basic
to a fair trial that their infraction can never be treated as harmless error.” Salemo, 61
F.3d at 222 (quotation and alternation omitted). See also United States v. Balough,
820 F.2d 1485, 1490 (9th Cir. 1987) (finding harmless error analysis inappropriate
where a defendant was denied his right to counsel at a hearing on a motion to
withdraw his guilty plea and at sentencing).

       Others have advocated a more nuanced approach. Then-Judge Alito expressed
disagreement with a broad prohibition against applying harmless error analysis in the
context presented here. Salemo, 61 F.3d at 222-23 (Alito, J., concurring). Using the
exact factual scenario in the instant case as his hypothetical—a defendant who did not
validly waive counsel at sentencing but was sentenced to the statutory mandatory
minimum—Judge Alito highlighted the potential problems of such an approach. Id.
at 223 n.1. In such a case, vacating and remanding would result in the imposition of
the same sentence with counsel present—a futile exercise in form over substance.

       The approach taken by the Eleventh Circuit in a slightly different context is
instructive. Golden v. Newsome, 755 F.2d 1478 (11th Cir. 1985), addresses the
concerns raised by Judge Alito’s hypothetical, as well as the facts of this case. Golden
considered whether absconding from custody during trial amounts to an effective
waiver of counsel for sentencing. Id. at 1481. In concluding that escape does not
constitute a valid waiver of counsel, the Eleventh Circuit notes it presumes prejudice

                                           -9-
when a defendant does not effectively waive counsel at sentencing, unless the court
sentences the defendant to the minimum term of imprisonment allowed by law. Id.
at 1483 n.9. Thus, if the sentencing court lacked the authority to impose a more
lenient sentence than the defendant received, the Eleventh Circuit applies harmless
error review.

       We acknowledge that our sister circuits to consider the issue have concluded
harmless error review is inappropriate when a defendant does not effectuate a valid
waiver of counsel at sentencing, as discussed above. Indeed, the Tenth Circuit has
held that harmless error review is never appropriate in waiver-of-counsel cases. See
United States v. Allen, 895 F.2d 1577, 1580 (10th Cir. 1990). This case does not
require such a broad holding, however. Rather, we limit our holding to the unique
circumstance presented here: when the district court lacked the authority to impose a
more lenient sentence than the defendant received. In that limited circumstance, we
agree with the Eleventh Circuit that harmless error review is appropriate.

       We therefore conclude the constitutional error in this case is harmless beyond
a reasonable doubt. Although there was not an effective waiver of counsel at
sentencing, Crawford was sentenced to the minimum term of imprisonment allowed
by statute. Crawford cannot articulate any harm suffered due to his lack of
representation at sentencing because the district court could not have imposed a more
lenient sentence. See Melendez v. United States, 518 U.S. 120, 125-26 (1996) (stating
that, absent a motion by the government under 18 U.S.C. § 3553(e), the district court
lacks the authority to sentence below the statutory mandatory minimum sentence).
Crawford’s argument that an attorney could have taken advantage of the discretion
available to sentencing courts after United States v. Booker, 543 U.S. 220 (2005), is
unavailing. Booker made the United States Sentencing Guidelines advisory, but had
no effect upon statutory sentencing schemes. See United States v. Rojas-Coria, 401
F.3d 871, 874 n.4 (8th Cir. 2005) (noting that Booker has no impact upon a sentence
determined by a statutory mandatory minimum). Because Crawford’s sentence was

                                        -10-
driven by mandatory minimum terms of incarceration defined by statute, there is
nothing any attorney could have done to achieve a more favorable result at sentencing.
The Sixth Amendment violation is harmless beyond a reasonable doubt.

III.   CONCLUSION

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




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