                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                         DECEMBER 20, 2005
                                No. 05-10006             THOMAS K. KAHN
                           Non-Argument Calendar             CLERK
                          ________________________

                     D. C. Docket No. 03-20374-CR-JAL

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                   versus

JEROME MCKENZIE,
a.k.a. McKenzie Jerome,

                                                       Defendant-Appellant.


                          ________________________

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

                              (December 20, 2005)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Jerome McKenzie appeals his convictions and combined 35-month sentence
on 11 counts of bringing aliens into the United States without prior official

authorization, in violation of 8 U.S.C. § 1324(a)(2)(A) and 18 U.S.C. § 2.1

McKenzie, who represented himself during the majority of his seven-day jury trial,

raises two distinct challenges to his convictions. First, McKenzie claims that his

Sixth Amendment right to confrontation was violated when, at trial, the

Government introduced through a special agent incriminating statements made by

an alien who had already been repatriated. Second, McKenzie argues that the

district court erred in granting his request during trial to proceed pro se, because he

believes his waiver of the right to counsel was not made voluntarily and

intelligently. In addition, McKenzie attacks his sentence on the grounds that it was

enhanced under a mandatory United States Sentencing Guidelines (“Guidelines”)

regime based upon facts that were neither admitted by him nor found by a jury, in

violation of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d

621 (2005). We affirm McKenzie’s convictions, but vacate his sentence and

remand for resentencing.

                                   I. BACKGROUND

       On the evening of February 5, 2003, while patrolling North Biscayne Bay in

Miami-Dade County, Florida Fish and Wildlife Conservation Officer MacArthur


       1
         Although the briefing generally refers to Appellant as “McKenzie Jerome,” we refer to
him as “Jerome McKenzie” due to the styling of this case.

                                               2
Clark noticed a 25-foot motorboat near Baker’s Haulover Inlet, which is one of two

passages in the area from the Atlantic Ocean into Biscayne Bay. The motorboat

was not displaying any navigational lights, and Clark proceeded to stop the vessel.

Onboard were McKenzie, who identified himself as the boat’s captain, and 11

passengers. Although Clark did not board the motorboat, his verbal interaction

with McKenzie and the passengers, as well as the surrounding circumstances,

caused Clark to suspect that the passengers were being smuggled into the United

States. He therefore summoned the United States Coast Guard, which then

boarded McKenzie’s motorboat. Neither McKenzie nor the passengers possessed

any form of identification, and only McKenzie spoke English.

      According to Coast Guard Officer David Allen, McKenzie claimed that the

passengers were family visiting from New York, but could not recall their names.

Nor could McKenzie describe the boat’s point of origin or destination marina.

McKenzie also claimed that the passengers were present to help him clean fish, and

a cooler on board did contain gutted fish. These fish, however, were at least

partially frozen and did not appear to have been freshly caught. Furthermore, no

knives or fish cleaning equipment were found on the motorboat. Two fishing poles

were discovered, but were still wrapped in plastic from a store. Other items

recovered from the motorboat included a Bahamian shopping bag, soda bottle, and



                                         3
phone card, as well as Haitian money.

       Coast Guard Special Agent James White later interviewed the passengers,

with the assistance of a Creole translator. Almost all of the passengers, who were

from Haiti, claimed to have been out fishing on the day in question. According to

Agent White, however, passenger Beniel Vincent disclosed that he had taken a

sailboat from Port-au-Paix, Haiti, to an island that he thought was in the Bahamas

chain. Three days later, a man named “John” picked him up and brought him to

the United States. Vincent identified McKenzie as “John.”

       An immigration check of the passengers disclosed that none of the 11

passengers had ever been to the United States or applied for entry, and all were

repatriated. A grand jury later charged McKenzie with 11 counts of bringing

unauthorized aliens into the United States, in violation of 8 U.S.C. § 1324(a)(2)(A)

and 18 U.S.C. § 2. After developing numerous conflicts with multiple appointed

defense counsel, McKenzie waived his right to counsel and proceeded pro se for

the majority of his jury trial. He was convicted on all 11 counts, and later

sentenced to a combined total of 35 months.2

                                    II. DISCUSSION



       2
         McKenzie was represented by counsel during sentencing. A mental evaluation of
McKenzie performed after trial revealed that he suffered from a personality disorder, but
ultimately determined that he was competent to stand trial.

                                               4
A.    Sixth Amendment Right to Confrontation

      At trial, the district court permitted Special Agent White to testify in detail

about the statements made by Beniel Vincent implicating McKenzie. McKenzie

had sought to preclude the admission of this evidence on the grounds that Vincent,

having been repatriated, would be unavailable for cross-examination, and that

McKenzie had a constitutional right to confrontation. The district court found that

Vincent’s statements could be admitted under Federal Rule of Evidence 804(b)(3),

as statements against penal interest. McKenzie argues that this was error under

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

      We review a preserved constitutional issue de novo, but will reverse only for

harmful error. United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000).

Crawford holds that “[w]hen testimonial evidence is presented against a defendant

at trial, the Sixth Amendment right of confrontation cannot be denied unless the

witness is unavailable and the defendant had a prior opportunity to cross-examine

him.” United States v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005) (per curiam).

The Government concedes on appeal that the admission of Special Agent White’s

testimony regarding Vincent’s statements violated Crawford, but contends that the

error was harmless in light of the all the other evidence against McKenzie.

      A constitutional error must be disregarded if the error is harmless beyond a



                                           5
reasonable doubt. United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.

2001). In other words, we must ask: “Is it clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the error?” Neder v.

United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838, 144 L. Ed. 2d 35 (1999); cf.

United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (per curiam)

(stating that error was harmless where there was overwhelming evidence of guilt).

Here, we believe the Government has established beyond a reasonable doubt that a

rational jury would have convicted McKenzie even in the absence of Special Agent

White’s testimony about Vincent’s statements.

       The evidence presented at trial that McKenzie violated 8 U.S.C. § 1324 was,

even when Vincent’s statements are disregarded, overwhelming.3 When Officer

Clark encountered McKenzie, McKenzie was piloting a 25-foot motorboat in one

of two passages in the area from the Atlantic Ocean into Biscayne Bay. It was

evening, but McKenzie’s boat was not displaying navigational lights. Although

McKenzie was unable to describe a point of origin or destination marina, the GPS

unit onboard his craft suggested that it had traveled that day from South Florida to



       3
         Section 1324 prohibits any person, “knowing or in reckless disregard of the fact that an
alien has not received prior official authorization to come to . . . the United States,” from
bringing or attempting to bring to the United States such alien. 8 U.S.C. § 1324(a)(2)(A).



                                                6
Bimini and back, arriving in Biscayne Bay where it was intercepted by Clark.

Numerous items seized from the vessel had Bahamian markings. None of the 11

passengers onboard spoke English or had a form of identification. Although

McKenzie claimed that they were family, he could not seem to recall their names.

He asserted that the passengers were onboard to help him clean fish (as did the

passengers), but no knives or other fish cleaning equipment was located on the

boat.4 A cooler containing gutted fish was found, but the fish were partially frozen

and did not appear to have been freshly caught. Fishing poles recovered from the

boat were still wrapped in plastic from the store. An immigration check ultimately

established that none of McKenzie’s 11 passengers had been in the United States

or applied for entry, and they were repatriated. Finally, Haitian national Enoch

Theogene, who was in federal prison on drug charges, testified McKenzie had

revealed to him in prison that McKenzie smuggled aliens into Miami, usually from

the Bahamas. According to Theogene, McKenzie claimed to have been paid

$6,000 to bring passengers to Miami. Given the overwhelming nature of the

evidence presented against McKenzie at trial, the Crawford error created by the

admission of Beniel Vincent’s testimony was harmless beyond a reasonable doubt.5

       4
         McKenzie apparently testified that he and the passengers had been cleaning fish, and
that a Coast Guard officer took away their fish cleaning equipment when they were intercepted.
       5
        In his reply brief, McKenzie argues that the Government’s reliance on Vincent’s
statements in its closing arguments magnified the gravity of the Crawford violation. One of our

                                               7
B.     Waiver of Right to Counsel

       McKenzie next asserts that the district court erred in permitting him to

represent himself at trial. Pointing to his numerous pro se motions for new

counsel, distrust of lawyers, post-trial diagnosis with a personality disorder, and

the factors set forth in Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065-67 (11th

Cir. 1986), McKenzie argues that he did not knowingly, voluntarily, and

intelligently waive his right to counsel during trial. We disagree.

        “Whether there has been an adequate waiver of the constitutional right to

counsel depends upon the particular facts and circumstances of each case,

including the background, experience, and conduct of the accused.” United States

v. Cash, 47 F.3d 1083, 1089 (11th Cir. 1995). However, “before a defendant is

allowed to waive the assistance of counsel, he ‘should be made aware of the

dangers and disadvantages of self-representation, so that the record will establish

that he knows what he is doing and his choice is made with eyes open.’” United



sister circuits has stated that the Government’s “exceptional emphasis” on an offending hearsay
statement during closing arguments, particularly in a rebuttal argument, “might in some cases tip
the balance in a harmless error review.” United States v. Summers, 414 F.3d 1287, 1304
(10th Cir. 2005). This is so, the panel reasoned, because “in emphasizing an inculpatory hearsay
statement, the government might relieve the jury of its duty to find a defendant guilty beyond a
reasonable doubt.” Id. As McKenzie demonstrates, the Government’s reliance on Vincent’s
testimony during its initial closing argument and in rebuttal was more than minimal.
Nevertheless, we do not believe that this, when considered in the overall circumstances of the
case and the facts presented at trial, tips the balance of harmless error review in McKenzie’s
favor.

                                                8
States v. Kimball, 291 F.3d 726, 730 (11th Cir. 2002) (per curiam) (quoting

Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562

(1975) (internal citation and quotations omitted)). A district court’s determination

that such a “waiver is valid–that it is knowing, voluntary, and intelligent–is a

mixed question of law and fact that we review de novo.” Id. On direct appeal, the

Government bears the burden of proving the validity of a waiver of the right to

counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed.

2d 424 (1977).

      Prior to trial, McKenzie achieved the withdrawal of one appointed

counsel–and sought the discharge of another–by means of pro se motions

expressing his dissatisfaction with counsel and requesting new representation, or

the right to self-representation. In the hearing on McKenzie’s second motion for

alternate counsel, however, McKenzie ultimately relented and decided to keep that

counsel, Steve Chaykin. As trial approached, Chaykin advised the district court

that significant differences had arisen between McKenzie and Chaykin on how the

trial ought to be conducted, differences that might eventually prevent Chaykin

from continuing as McKenzie’s counsel. McKenzie expressed a desire for more

control over Chaykin’s decisions about how to proceed, but agreed to back off a bit

when the district court advised that Chaykin had McKenzie’s best interests at heart.



                                           9
       On the third day of trial, however, McKenzie complained to the court that

Chaykin was not representing him properly.6 McKenzie explained that he did not

agree with Chaykin’s cross-examination of Government witnesses, and that he

(McKenzie) would rather represent himself than continue with another lawyer.7

Chaykin offered to act as stand-by counsel. After a tangential exchange in which

the district court warned McKenzie not to harass witnesses, the court placed

McKenzie under oath and conducted a Faretta-type hearing.8 It is uncontroverted

that the court informed McKenzie about the nature of the charges against him, the

maximum possible term of imprisonment (11 years), the disadvantages of self-

representation, and the court’s own belief that it was in McKenzie’s best interest to

be represented by an attorney. It is also uncontroverted that McKenzie indicated

he understood the court’s warnings, but nevertheless wished to waive his right to




       6
          For example, McKenzie complained that he had told Chaykin to ask the court to order
government witnesses to remain nearby after testifying. The court explained that Chaykin had in
fact made the request, but the court had overruled it (apparently because Chaykin did not intend
to call the witnesses in his case-in-chief).
       7
          McKenzie stated: “I will do better than what he is doing. I don’t want anybody else. I
will risk my head on my own.”
       8
          While we have noted that the ideal method for assuring a valid waiver of the right to
counsel is a pretrial hearing, we have also acknowledged that a waiver can be sustained even in
the absence of any hearing. See Cash, 47 F.3d at 1088. Although McKenzie’s Faretta-type
hearing occurred after the start of his trial, he does not challenge his conviction on this basis.

                                                10
counsel and represent himself.9

       We have previously identified several factors that are particularly important

to the determination of whether a defendant’s decision to proceed pro se is valid:

       1) the defendant’s age, health, and education; 2) the defendant’s contact with
       lawyers prior to trial; 3) the defendant’s knowledge of the nature of the
       charges and possible defenses and penalties; 4) the defendant’s
       understanding of the rules of evidence, procedure and courtroom decorum;
       5) the defendant’s experience in criminal trials; 6) whether standby counsel
       was appointed and, if so, the extent to which standby counsel aided in the
       trial; 7) any mistreatment or coercion of the defendant; and 8) whether the
       defendant was attempting to manipulate the trial.

Kimball, 291 F.3d at 730-31 (citing Fitzpatrick, 800 F.2d at 1065-67). As the

Government demonstrates, these factors do not favor McKenzie’s claim. Although

McKenzie does come from a different country and cultural background, he

concedes that he “did have basic understanding of the charges against him,” and it

is not disputed that he was aware of potential defenses to those charges. McKenzie

contends he believed that he would actually face only 12 months of incarceration,

but concedes the district court advised him that a total of 11 years’ imprisonment

was possible. McKenzie also notes that he had very little understanding of the

rules of procedure and evidence. The relevant issue, however, is not whether



       9
         “The closer to trial an accused’s waiver of the right to counsel is, the more rigorous,
searching, and formal the questioning of the trial judge should be.” Kimball, 291 F.3d at 730.
McKenzie does not claim that the district judge’s questioning was lacking in any of these
aspects.

                                                11
McKenzie understood the technicalities of the rules themselves, but whether he

understood that such rules existed and would bind him. See id. at 731. It is clear

that McKenzie had some experience with the trial process, for he was tried and

acquitted of aggravated assault with a weapon in 1997.10 Moreover, it is

uncontroverted that stand-by counsel Chaykin sought to assist McKenzie

throughout the course of his trial,11 and there is no claim that McKenzie was

coerced or attempted to manipulate the trial.

       McKenzie also claims that the adequacy of his waiver is called into question

by the fact that a post-trial mental evaluation diagnosed him with a “Personality

Disorder Not Otherwise Specified with Paranoid, Antisocial, and Narcissistic

Features.”12 The evaluation tested, inter alia, McKenzie’s ability to understand the



       10
            It is not clear whether McKenzie represented himself during that trial.
       11
          McKenzie notes that at one point Chaykin advised the district court of his (Chaykin’s)
belief that McKenzie’s self-representation was a “disaster,” and that “it has been virtually
impossible for me to do anything to assist him in creating a defense.” Whether McKenzie was
receptive to Chaykin’s advice, however, is an issue quite distinct from whether that advice was
available to McKenzie throughout trial.
       12
          After trial, the district court granted Chaykin’s motion to withdraw as stand-by counsel
and, at McKenzie’s request, appointed him a new counsel to assist at sentencing. Unsurprisingly,
McKenzie became dissatisfied with this counsel and requested yet another one. The district
court granted the motion and appointed Ana Jhones to represent McKenzie. At the sentencing
hearing, Jhones sought to withdraw, claiming that McKenzie was “not amenable to the advice of
counsel” and had a paranoid distrust of lawyers. Noting the number of attorneys that had already
cycled through the case, the district court denied the motion to withdraw, but acceded to
Jhones’s request for a competency evaluation of McKenzie. “Competency to waive the right to
counsel is judged by the same standard as competency to stand trial.” Cash, 47 F.3d at 1089 n.3.

                                                  12
charges against him, understand courtroom proceedings, and assist defense

counsel. Although the evaluation report found that McKenzie had a “limited

degree of trust” for defense attorneys, it also noted that he was of average

intelligence, had completed formal schooling through the eleventh grade,

demonstrated adequate knowledge of courtroom roles and proceedings, and

“score[d] well within the ranges of persons competent to stand trial by the courts.”

While McKenzie displayed “characterological dispositions” that would “interfere

in his interactions with others and with his perceptions of the legal process,” these

behaviors were merely “impediments to the ongoing process,” not “products of a

serious mental illness.” Ultimately, the evaluation concluded, McKenzie had a

“detailed understanding” of legal procedures, demonstrated “no impairment in his

ability to assist towards his own defense, if motivated to do so,” and should be

considered competent to stand trial. Having considered the evaluation as a whole,

we agree with the Government that McKenzie was competent to waive his right to

counsel.13

       “[T]he ultimate test for whether there has been a valid waiver of the right to



       13
          McKenzie compares his case to Cash, which involved a defendant with a personality
disorder somewhat similar to McKenzie’s. See 47 F.3d at 1089. Unlike McKenzie, however,
the defendant in Cash had very limited contact with defense counsel and received an inadequate
Faretta hearing. See 47 F.3d at 1088-89 (“The court did not question Appellant regarding his
knowledge of the charges and potential penalties he faced.”).

                                              13
counsel is not the trial court’s express advice, but rather the defendant’s

understanding.” Cash, 47 F.3d at 1088 (internal quotations omitted). Here, the

record demonstrates that McKenzie was well aware of the risks posed by self-

representation, and made the decision to proceed pro se “with open eyes.” See id.

The district court did not err in determining that McKenzie had knowingly,

voluntarily, and intelligently waived his right to counsel.

      As shown above, neither McKenzie’s Crawford argument nor his challenge

to waiver of the right to counsel warrants reversal or remand. Accordingly, we

affirm his convictions.

C.    Booker Challenge

      At sentencing, the district court, applying the Guidelines as mandatory,

enhanced McKenzie’s sentence based on findings of reckless endangerment and

obstruction of justice. McKenzie contends that this violated his Sixth Amendment

rights as set forth in Booker. See United States v. Rodriguez, 398 F.3d 1291, 1297

(11th Cir.) (“Booker [holds] that the Sixth Amendment right to trial by jury is

violated where under a mandatory guidelines system a sentence is increased

because of an enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by a jury.”) (emphasis omitted), cert. denied,

__ U.S. __, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). Because McKenzie raised



                                          14
his constitutional objection before the district court, we review his sentence de

novo, though we will reverse only for harmful error. United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005) (per curiam).

       Here, the Government concedes that the district court committed

constitutional Booker error when the court enhanced McKenzie’s sentence based

on facts that were neither admitted by McKenzie nor found by a jury. The

Government further concedes that it cannot meet its burden of proving that the

error did not affect McKenzie’s substantial rights; that is, that the error was

harmless beyond a reasonable doubt. See id. We therefore vacate McKenzie’s

sentence and remand for resentencing.14

       AFFIRMED IN PART, VACATED IN PART, and REMANDED.




       14
         The district court also committed statutory Booker error by sentencing McKenzie under
a mandatory Guidelines regime. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir.
2005) (per curiam). As we have already determined that the case must be remanded for
resentencing due to constitutional Booker error, however, we need not discuss the statutory error
further.

                                               15
