                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2013

                                                                        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. 12-30002

              Plaintiff - Appellee,              D.C. No. 3:11-cr-05158-RBL-1

  v.
                                                 MEMORANDUM *
DANA LEON BROOKS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted February 7, 2013.
                    Submission Withdrawn February 19, 2013.
                           Resubmitted June 21, 2013,
                               Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Appellant Dana Leon Brooks appeals his conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), and his sentence under




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       The district court did not deprive Brooks of his right to proceed pro se

under Faretta v. California, 422 U.S. 806 (1975). To invoke the right to

self-representation, a defendant must make a request that is “timely, not for

purposes of delay, unequivocal, voluntary, [and] intelligent.” United States v.

Maness, 566 F.3d 894, 896 (9th Cir. 2009) (per curiam). “A conditional waiver

can be stated unequivocally, as for example when a defendant says in substance: ‘If

I do not get new counsel, I want to represent myself.’” United States v.

Mendez-Sanchez, 563 F.3d 935, 946 (9th Cir. 2009). Brooks asked to represent

himself only when told he would not be given new counsel. Such a conditional

request can be unequivocal, but Brooks nonetheless equivocated. After a full

Faretta colloquy, Brooks stated that he would prefer to proceed with his current

counsel and not pro se. Brooks then reversed course just before the jury venire

was brought in and announced that he would rather proceed by himself. By stating

that he preferred counsel at the close of his Faretta colloquy, and then changing his

mind minutes later, Brooks equivocated and did not make an unequivocal request

for self-representation. We “indulge in every reasonable presumption against

waiver.” United States v. Forrester, 512 F.3d 500, 506 (9th Cir. 2008) (internal


                                          2
quotation omitted). Brooks’s inconsistent positions did not present the

unequivocal request necessary to overcome this presumption and invoke his right

to self-representation. See Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989).

As we explained in Mendez-Sanchez, the need for unequivocal demand follows

from the nature of the “dueling rights at stake in Faretta,” and the fact that “self-

representation in most cases will have negative consequences.” 563 F.3d at 945.

Viewing the totality of the circumstances here, the district court did not err in

denying Brooks’s request for self-representation made minutes after he had

explicitly rejected self-representation following a full Faretta colloquy.

      The district court also did not err in determining that Brooks was an armed

career criminal. Brooks argued that his conviction for second-degree burglary

under Wash. Rev. Code § 9A.52.030(1) does not qualify as an ACCA predicate

offense. A conviction under § 9A.52.030(1) is not categorically an ACCA

predicate offense because the definition of “building” under Washington law

contains alternatives that are not included in the generic definition of burglary

under federal law. United States v. Wenner, 351 F.3d 969, 972–73 (9th Cir. 2003).

      Under the modified categorical approach, we must determine (1) what facts

the state conviction necessarily rested on and (2) whether these facts satisfy the

elements of the generic offense. See Shepard v. United States, 544 U.S. 13, 20–21


                                           3
(2005). In making these determinations, we look to the “statutory definition,

charging document, written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant assented.” Id. at

16.

      Brooks’s Shepard documents, his amended information and plea agreement,

indicate that he pleaded guilty to “enter[ing] or remain[ing] unlawfully in a

building located at 115 Orchard Ave. So., Eatonville, known as the residence of

G[] K[].” This describes the burglary of a “building” as the term is defined

generically, see United States v. Grisel, 488 F.3d 844, 848 (9th Cir. 2007) (en

banc), and Brooks’s decision to enter an Alford plea does not alter the legal

consequences of his plea agreement. United States v. Guerrero-Velasquez, 434

F.3d 1193, 1197 (9th Cir. 2006). Brooks’s conviction necessarily rested on the

building’s description because the State was required to prove that Brooks entered

or remained in something that matched at least one definition of “building” in the

statute. See Shepard, 544 U.S. at 21. Because the statute provided a finite list of

definitions, the district court could “determine which statutory phrase was the basis

for the conviction.” Descamps v. United States, 570 U.S. __, 11-9540, 2013 WL

3064407, at *6 (U.S. June 20, 2013) (internal quotation marks omitted). The




                                           4
district court did not err in concluding that Brooks was an armed career criminal

and enhancing his sentence under the ACCA.1

      Brooks contends that his sentence exceeded the statutory maximum in

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.

Booker, 543 U.S. 220 (2005). Our circuit precedent forecloses this argument.

Grisel, 488 F.3d at 846–47.

      Brooks contends for the first time on appeal that the residual clauses of the

ACCA and the United States Sentencing Guidelines §4B1.2 are unconstitutionally

vague. Because the district court did not base its sentencing decision on either

residual clause, we need not reach this issue.

      AFFIRMED.




      1
        Brooks also contends that his burglary was not a “crime of violence” under
the United States Sentencing Guideline §4B1.2. “[T]he terms ‘violent felony’ in
the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), and ‘crime of violence’ in Guidelines
section 4B1.2[] are interpreted according to the same precedent.” United States v.
Crews, 621 F.3d 849, 856 (9th Cir. 2010). The district court does not appear to
have relied on §4B1.2 in sentencing Brooks. To the extent it did, the district court
did not err because the same modified categorical analysis applies.

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