                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 19 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50500

              Plaintiff - Appellee,              D.C. No. 5:07-cr-00018-VAP-1

  v.
                                                 MEMORANDUM*
RICHARD MONROE HARKLESS, AKA
Seal A,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                      Argued and Submitted October 9, 2012
                              Pasadena, California

Before: TROTT, KLEINFELD, and McKEOWN, Circuit Judges.

       Appellant Richard M. Harkless appeals his fraud related felony convictions

on the ground that his purported Faretta waiver of his Sixth Amendment right to

counsel was invalid. He alleges that his waiver was fatally defective because he

was mistakenly advised by the court, which in turn relied on information from the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
government, that the maximum sentence he faced if convicted was only 90 years.

The government now concedes that at the time of his purported Faretta waiver

Harkless was “facing a statutory maximum sentence of 340 years.” After

conviction, he was given a 100 year sentence.

      “In order to deem a defendant’s Faretta waiver knowing and intelligent, the

district court must insure that he understands . . . the possible penalties . . .”

attached to the crimes with which he is charged. United States v. Erskine, 355

F.3d 1161, 1167 (9th Cir. 2004). Moreover, “[o]n appeal, the government carries

the burden of establishing the legality of the waiver . . . .” Id.

      Here, notwithstanding the district court’s ambiguous comment that Harkless

was facing “essentially a life sentence,” this record as a whole does not

demonstrate that his waiver was knowing and intelligent with respect to his

understanding of potential penalties. Id. at 1169; United States v. Forrester, 512

F.3d 500, 508 (9th Cir. 2008) (“By materially misstating the applicable sentence,

the court failed to fulfill its obligation to ‘insure that [the defendant] understands . .

. the possible penalties’ . . . .” (quoting Erskine, 355 F.3d at 1167) (brackets and

omissions in original)).

      REVERSED and REMANDED.




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