                                                                                    FILED
                               NOT FOR PUBLICATION                                   APR 21 2011

                                                                                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. 09-10506

                Plaintiff - Appellee,                  D.C. No. 2:03-CR-46-KJD-RJJ

   v.
                                                       MEMORANDUM *
 QUINTON WILLIAMS,

                Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Nevada
                       Kent J. Dawson, District Judge, Presiding

                          Argued and Submitted April 11, 2011
                               San Francisco, California

Before: NOONAN and N.R. SMITH, Circuit Judges, and COLLINS, District
Judge.**




        *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Cir. R. 36-3.
        **
                The Honorable Raner C. Collins, United States District Judge for the District of
Arizona, sitting by designation.

                                               1
       Defendant-Appellant Quinton Williams appeals from his sentence following a

jury trial and guilty verdict. The parties are presumed to be familiar with the facts,

and we do not recount them here except as necessary to explain our decision. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.     Appellant’s sentence after re-trial

       We review claims of judicial vindictiveness de novo. United States v. Peyton,

353 F.3d 1080, 1085 (9th Cir. 2003), overruled on different grounds by United States

v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010).

       Where the defendant cannot show a reasonable likelihood that his harsher

sentence at a retrial was the result of vindictiveness, the Pearce presumption does not

apply and the defendant bears the burden of proving actual vindictiveness. Wasman

v. United States, 468 U.S. 559, 569 (1984).

       The court in this case stated affirmatively on the record its reasons for giving

Williams a higher sentence after retrial, noting that guideline recommendation in the

2003 Presentence Report did not include the career offender application. When an

increase in sentence results solely from the court's correction of an error in the original

presentence report, there is no reasonable likelihood of vindictiveness. United States

v. Garcia-Guizar, 234 F.3d 483, 489-91 (9th Cir. 2000).

       Because the Pearce presumption categorically does not apply to Appellant's



                                             2
resentencing, he must prove actual vindictiveness. Id. at 490 (quoting Wasman, 468

U.S. at 569). Appellant conceded at oral argument that he could not demonstrate that

the district court was actually vindictive. 1

       Therefore, the district court did not engage in vindictive sentencing, and we

affirm Appellant’s 210-month sentence.

II.    Appellant’s Faretta request

       Under either de novo or abuse of discretion review, Appellant’s Faretta claim

fails. See United States v. Kaczynski, 239 F.3d 1108, 1116 (9th Cir. 2001).

       A court may deny a defendant's Faretta request if it cannot find “that he

knowingly and intelligently forgoes his right to counsel and that he is able and willing

to abide by rules of procedure and courtroom protocol.” McKaskle v. Wiggins, 465

U.S. 168, 173 (1984).

       There is ample support in the record to sustain findings (i) that Williams did not

knowingly and intelligently waive his right to representation, and/or (ii) that Williams

demonstrated during the hearing that he would be defiant and disruptive if allowed to

represent himself.

       As to the first, when asked by the magistrate judge whether he understood the



       1
        Appellant argued for the first time that the prosecutor was vindictive for seeking the career
offender enhancement. This argument is waived. Butler v. Curry, 528 F.3d 624, 642 (9th Cir.
2008).

                                                 3
charges and consequences in his case, Williams gave conflicting and nonsensical

answers. In addition, he seemed to believe that the case was a private bankruptcy

proceeding. Based on this record, the district court correctly found that Williams did

not knowingly and intelligently waive his right to counsel.

       As to the second, throughout the Faretta hearing, Williams interrupted the court

and counsel, and was rude and disrespectful to the court. His behavior was so

disruptive that the court threatened to bind and gag him, and he was finally subdued

by the Marshals. The district court correctly found that Williams was not willing to

abide by courtroom protocol and rules of procedure based on his behavior during the

Faretta hearing.

       Denying Appellant's Faretta request was not an abuse of discretion.

III.   Denial of mistrial

       We review a district court's denial of a motion for mistrial for abuse of

discretion. United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir. 1999). We review

a district court's findings of fact in connection with the motion for a mistrial for clear

error. United States v. Bonas, 344 F.3d 945, 948 (9th Cir. 2003).

       We give “substantial weight” to the district court's assessment of whether a

mistrial is necessary, and presume that the trial judge “who presided at the trial and

observed the jury” is in the best position to determine if what happened was



                                            4
prejudicial. Sarkisian, 197 F.3d at 981-82. The Sixth Amendment “affords no relief

when the defendant's own misconduct caused the alleged juror partiality and the trial

judge employed reasonable means under the circumstances to preserve the trial's

fairness.” Williams v. Woodford, 384 F.3d 567, 626 (9th Cir. 2004).

      Here, Appellant's request for a mistrial was occasioned by his own misconduct,

which was so severe it required his removal. The court acted as quickly as it could to

prevent the jury from hearing anymore of the outburst and remove Williams from the

courtroom. In addition, the court instructed the jurors to (i) not be influenced by

personal likes or dislikes, opinions, prejudices, or sympathy, (ii) decide the case based

only on properly admitted evidence, and (iii) ignore anything they may have seen or

heard when court was not in session. A jury is presumed to follow its instructions.

Mejia v. Garcia, 534 F.3d 1036, 1043 fn. 3 (9th Cir. 2008).

      There was no reason to presume that the jury was influenced by Appellant's

outburst, and there was no reason to reward Williams with a mistrial. Therefore, the

court did not abuse its discretion when it denied the motion for mistrial.

      AFFIRMED.




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