[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15022
MARCH 16, 2011
Non-Argument Calendar
JOHN LEY
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CLERK

D. C. Docket No. 09-00009-CR-JRH-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
NATHAN SMITH,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Georgia
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(March 16, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Nathan Smith appeals his convictions and the sentences imposed for bank

robbery and interstate transportation of a stolen motor vehicle. After a review of

the record, we affirm.
On March 3, 2009, Smith entered a bank in Dublin, Georgia, handed the
teller a note demanding money, and warned the teller that he had a gun. The teller
handed him two bundles of bills totaling $2,380 and Smith fled the bank.
Witnesses reported that Smith ran to the rear parking lot after which they saw a
gold van with Florida plates speeding away. The bank manager called 911 and the
teller gave a description of Smith to police. The witnesses also described the van
to police. That afternoon, a police patrol saw a gold van on the interstate with a
driver matching Smiths description and conducted a stop. A search of the van
revealed the bundled money. Police also determined that the gold van had been
reported stolen from a dealership a month earlier.
Smith was indicted for bank robbery, in violation of 18 U.S.C. 2113(a),
and interstate transportation of a stolen vehicle, in violation of 18 U.S.C. 2313.
In May 2009, the court appointed Matthew Waters as Smiths counsel. The trial
was scheduled for September 14, 2009.
About three weeks before the trial was set to begin, Smith notified the court
by letter that he wanted to remove his court-appointed attorney. A magistrate
judge held an in camera hearing to address the issue and informed Smith of the

risks of proceeding pro se. Smith stated that he wished to proceed pro se because,
although Waters was a competent attorney, Waters had expressed no confidence in
the case and Smith did not want the jury to notice this lack of confidence. Smith
denied that he was seeking pro se status so that he could raise the representation
issue on appeal. After Smith confirmed that he was waiving his right to
representation freely and voluntarily, the magistrate judge relieved Waters from
representing Smith but instructed him to act as stand-by counsel.
At a pre-trial hearing, the district court reiterated the warnings against selfrepresentation and advised Smith that he could hire his own attorney, accept courtappointed representation, or represent himself. Smith elected to represent himself
and informed the court that he was aware of the risks. After the district court
questioned Smith about his decision, it concluded that Smith had knowingly,
freely, and voluntarily waived his right to counsel.
Jury selection began on September 14 and the trial began on September 23.
The jury convicted Smith of both counts. Smith filed a motion for a new trial,
arguing that the court violated the Speedy Trial Act by conducting trial less than
thirty days after he elected to proceed pro se. He also requested court-appointed
counsel for his post-trial motions. The court appointed counsel but denied the
Speedy Trial Act claim, finding that the time period began to run when Smith first

appeared more than four months before trial.

One month later, Smith moved to terminate appointed counsels
representation, alleging that his appointed attorney, Henry Crane, had misled him
and refused to discuss the case. At a hearing before the same magistrate judge,
Smith requested that he be allowed to proceed pro se at sentencing and on appeal.
The magistrate judge again warned Smith about this decision before relieving
Crane from the representation.
According to the presentence investigation report (PSI), Smith qualified as a
career offender under U.S.S.G. 4B1.1 because he had two prior convictions for
crimes of violence. Specifically, the probation officer cited a conviction for
aggravated assault on a law enforcement officer and a conviction for terroristic
threats. The records showed that Smiths aggravated-assault charge resulted from
a fight with officers in which Smith punched an officer with a closed fist. Smiths
terroristic-threats charge involved a domestic dispute in which Smith entered a
womans home through the window and began choking and hitting her until she
stabbed him with a knife in self-defense. Smiths classification as a career
offender resulted in a sentencing range of 210 to 262 months imprisonment. The
statutory maximum sentence for bank robbery, however, was twenty years
imprisonment.

Crane filed two objections to the PSI, which he later withdrew. Smith
moved for additional time to research sentencing issues, but the court denied the
motion because Smith had been represented by counsel when the probation officer
issued the PSI, had signed the objections Crane submitted, and had waived the
right to file additional objections outside the applicable time period.
At sentencing, the government requested a sentence at the statutory
maximum, noting Smiths lengthy criminal history. After considering the
guideline range and the sentencing factors in 18 U.S.C. 3553(a), the court
sentenced Smith to 240 months for bank robbery and a consecutive 22 months for
the stolen vehicle, for a total sentence of 262 months imprisonment. In reaching
this sentence, the court specifically noted Smiths violent history, his moving state
to state in an apparent attempt to avoid criminal prosecution, and that he posed a
significant danger to the public.
Smith now appeals on the grounds that (1) he did not voluntarily waive his
right to counsel at trial and at sentencing; (2) the court violated the Speedy Trial
Act when it held his trial less than thirty days after he decided to proceed pro se;
(3) his prior convictions did not qualify as violent felonies and therefore he was not
a career offender; and (4) his sentence was procedurally and substantively
unreasonable. We address each in turn.

A. Right to Counsel
Smith first argues that he did not knowingly waive his right to counsel at
trial or at sentencing because the magistrate judge unduly focused on the
inevitability of Smiths conviction, led him to believe that he had no choice but to
represent himself at trial, and rendered the waiver invalid. He further contends that
he did not validly waive his right to counsel at sentencing because the magistrate
judge overestimated his sentence and did not adequately inform him of sentencing
procedures.
Whether a defendant validly waived his right to counsel at his trial or at his
sentencing is a mixed question of law and fact, which we review de novo. United
States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995); see also United States v.
Evans, 478 F.3d 1332, 1340 (11th Cir. 2007) (regarding waiver of counsel at
sentencing). On direct appeal, the government bears the burden of proving the
validity of the waiver. Cash, 47 F.3d at 1088.
A criminal defendant has a constitutional right to represent himself when he
knowingly, voluntarily, and intelligently elects to do so. Evans, 478 F.3d at 1340
(quotation omitted). The ideal method for the district court to ensure that a
defendant understands the consequences of waiving the assistance of counsel is

through a pretrial hearing, known as a Faretta1 inquiry, during which the district
court informs the defendant of the charges, basic trial procedures, possible
punishments, and hazards of self-representation. United States v. Kimball, 291
F.3d 726, 730 (11th Cir. 2002). A defendant need only 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. Id.
(quotation omitted). The closer to trial an accuseds waiver of the right to counsel
is, the more rigorous, searching and formal the questioning of the trial judge should
be. Id. at 730 (quotation omitted). But the ultimate test for the validity of the
waiver is the defendants understanding, not the courts advice. Cash, 47 F.3d
1088.
To determine if a waiver was valid, we must look to the particular facts and
circumstances of the case. United States v. Garey, 540 F.3d 1253, 1266 (11th Cir.
2008) (quotation omitted). The following factors inform this determination:
1) the defendants age, health, and education; 2) the defendants
contact with lawyers prior to trial; 3) the defendants knowledge of
the nature of the charges and possible defenses and penalties; 4) the
defendants understanding of the rules of evidence, procedure and
courtroom decorum; 5) the defendants 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
1

Faretta v. California, 422 U.S. 806, 835 (1975).

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attempting to manipulate the trial.

Kimball, 291 F.3d at 730-31.
An indigent defendant does not have an unqualified constitutional right to
counsel of his choice. Garey, 540 F.3d at 1263. We have held that
[w]hen a defendant rejects his court-appointed counsel or otherwise
engages in behavior that creates tension between his right to counsel
and his right to self-representation, a district court does not
compromise the defendants free choice by presenting him with
accurate information regarding his lawful choices and asking him to
choose between them. And, when an indigent defendant rejects
competent, conflict-free counsel, he may waive his right to
counsel . . . so long as his decision is made with knowledge of his
options and the consequences of his choice.
Id. at 1265-66.
Here, we conclude that Smith was given proper Faretta warnings and
sufficient information both before trial and before sentencing so that he could
make a knowing, voluntary, and intelligent waiver of counsel. The record reveals
that the magistrate judge questioned Smith about his education, emphasized
counsels competency, explained Smiths choices, warned Smith of the risks of
proceeding pro se, and considered the Kimball factors. The magistrate judge also
noted Smiths lengthy criminal history and familiarity with the legal system.
Moreover, the district court conducted a similar inquiry and confirmed that Smiths
desire to proceed pro se was knowing and voluntary.

The same magistrate judge considered Smiths motion to proceed pro se at

sentencing and again considered the Kimball factors and gave the necessary
warnings. Smith repeatedly stated that he understood the risks and was electing to
proceed pro se knowingly and voluntarily. Thus, the record shows that the court
made an appropriate Faretta finding that Smith had entered a valid waiver on each
occasion. Accordingly, we affirm as to this issue.
B. Speedy Trial Act
Smith next argues that the district court violated the Speedy Trial Act, 18
U.S.C. 3161(c)(2), because his trial commenced less than 30 days from the date
that he decided to proceed pro se, even though he had the assistance of appointed
counsel for several months before his pro se election.
We review questions of statutory interpretation de novo. United States v.
Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009), cert. denied, (U.S. Nov. 29, 2010)
(No. 09-8536). The Speedy Trial Act provides in relevant part: Unless the
defendant consents in writing to the contrary, the trial shall not commence less than
thirty days from the date on which the defendant first appears through counsel or
expressly waives counsel and elects to proceed pro se. 18 U.S.C. 3161(c)(2).
We have not addressed the precise issue raised by Smithwhether the
thirty-day period in 3161(c)(2) begins to run anew when a counseled defendant

subsequently decides to terminate that representation and proceed pro se. But we
find our decision in United States v. Darby, 744 F.2d 1508, 1519 (11th Cir. 1984),
instructive. In that case, we addressed the situation in which a defendant who was
represented by one attorney at the arraignment was then represented by a different
attorney at the trial that began less than 30 days from the date the second attorney
was appointed. Holding that the statute did not specify the type of counsel to
appear, we concluded that the statutory period began to run when the defendant
first appeared through counsel at his arraignment. Id. at 1520-21. We noted,
to the extent that the interpretation urged by [the defendant] would
enable defendants to postpone their prosecutions by simply changing
lawyers or by retaining lawyers only for limited purposes prior to trial,
it would contravene the major purpose of the Speedy Trial Act, i.e.,
avoiding unnecessary delay.
Id. at 1520 n.5.
Other circuits have concluded that the time begins to run when the defendant
first appears through counsel because, to interpret the statute otherwise would
enable a defendant to postpone his prosecution by deciding on the eve[ ] of trial
that he wants to dismiss his attorney and represent himself. United States v.
Moya-Gomez, 860 F.2d 706, 741-42 (7th Cir. 1988) ([w]hen the defendant first
appears through counsel, his later decision to proceed pro se should not trigger
anew the thirty-day preparation period.); see also United States v. Williams, 10

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F.3d 1070, 1079 (4th Cir. 1993) (following Moya-Gomez).

The purpose of the Speedy Trial Act would be contravened by allowing
defendants to terminate their counsel voluntarily and thereby postpone their trials.
We therefore agree with the Fourth and Seventh Circuits and conclude that the
thirty-day period was not triggered anew when Smith elected to proceed pro se. In
this case, Smiths trial took place more than four months after his first appearance
through counsel. Accordingly, we affirm on this issue.2
C. Career-Offender Status
Smith asserts that neither of the prior convictions that were used to qualify
him as a career offender were crimes of violence under the Sentencing Guidelines
because, as defined by state statute, these convictions could be predicated on a
mens rea of recklessness.
We review de novo a district courts decision to classify a defendant as a
career offender under U.S.S.G. 4B1.1. United States v. Gibson, 434 F.3d 1234,
1243 (11th Cir. 2006). Arguments raised for the first time on appeal are subject to
plain error review, which requires the defendant show (1) there is error; (2) that is

Even if we were to conclude that there was a Speedy Trial Act violation, Smith would have
to show prejudice to be entitled to relief. United States v. Edwards, 211 F.3d 1355, 1358 (11th Cir.
2000). A review of the record here reveals that Smith had ample time to prepare for his defense, as
Smith first appeared through counsel more then four months before the trial started. Given the
evidence against Smith, Smith has not shown prejudice.
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plain or obvious; (3) affecting his substantial rights in that is was prejudicial and
not harmless; and (4) that affects the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Beckles, 565 F.3d 832, 842 (11th Cir.
2009). In this case, although Smith challenged his prior convictions, he did not do
so on factual grounds. Therefore, we review his argument for plain error.
A defendant qualifies as a career offender under the Guidelines if, among
other things, he has at least two prior felony convictions of . . . a crime of
violence . . . . U.S.S.G. 4B1.1(a). A crime of violence is defined as:
any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that (1) has as an element the use,
attempted use, or threatened use of physical force against the person
of another, or (2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.
U.S.S.G. 4B1.2(a). In determining a crime of violence, the offense of
conviction (i.e., the conduct of which the defendant was convicted) is the focus of
inquiry. U.S.S.G. 4B1.2, comment. (n.2). When determining whether a
conviction can be classified as a crime of violence, [w]here an ambiguity exists
and the underlying conviction may be examined, the district court can rely on the
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.
Beckles, 565 F.3d at 843 (quoting Shepard v. United States, 544 U.S. 13, 16
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(2005)). In Beckles, this court held,

For purposes of sentencing, the district court also may base its factual
findings on undisputed statements found in the PSI, because they are
factual findings to which the defendant has assented. . . . Facts
contained in a PSI are undisputed and deemed to have been admitted
unless a party objects to them before the sentencing court with
specificity and clarity. . . . Indeed, the defendants failure to object to
conclusory statements in the PSI renders those statements undisputed
and permits the sentencing court to rely upon them without error even
if there is an absence of supporting evidence.
Beckles, 565 F.3d at 843-44 (quotations and citations omitted).
Based on the undisputed facts of Smiths prior convictions contained in the
PSI, we conclude that he was convicted of two prior crimes that involved physical
force. His prior convictions for aggravated assault and terroristic threats were thus
crimes of violence as defined in the Sentencing Guidelines and Smith was correctly
sentenced as a career offender.
D. Reasonableness
Finally, Smith argues that his total sentence was procedurally and
substantively unreasonable.
We review a sentence imposed by a district court for reasonableness, using
an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278
(11th Cir. 2009). We utilize a two-part process: First, the district court must
consult and correctly calculate the sentencing range recommended by the

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Guidelines. Second, the district court must fashion a reasonable sentence by

considering the factors enumerated in 18 U.S.C. 3553(a). United States v.
McBride, 511 F.3d 1293, 1297 (11th Cir.2007).
When reviewing for procedural reasonableness, we ensure that the district
court (1) properly calculated the Guidelines range, (2) treated the Guidelines as
advisory, (3) considered the 3553(a) factors, (4) did not select a sentence based
on clearly erroneous facts, and (5) adequately explained the chosen sentence. Gall
v. United States, 552 U.S. 38, 51 (2007). Moreover, 18 U.S.C. 3553(c) requires
the district court to state its reasons for the sentence in open court. 18 U.S.C.
3553(c)(1). In complying with 3553(c), [t]he sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority. Rita v. United States, 551 U.S. 338, 356 (2007). The district court is
not required to discuss each of the 3553(a) factors or mention on record that it
has explicitly considered each factor. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005).
After we determine that the district courts sentencing decision is
procedurally sound, we then review the substantive reasonableness of the sentence
for an abuse of discretion. Gall, 552 U.S. at 51. [T]here is a range of reasonable

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sentences from which the district court may choose. United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). We consider the final sentence in its entirety in
light of the 3553(a) factors. United States v. Thomas, 446 F.3d 1348, 1351 (11th
Cir. 2006). The district court is permitted to attach great weight to one factor over
others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (quotation
omitted). In arriving at a reasonable sentence, the district court shall impose a
sentence that is sufficient, but not greater than necessary, to comply with the
need for the sentence imposed:
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.
18 U.S.C. 3553(a)(2). Other factors that the sentencing court should consider are
the following: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the kinds of sentences available; (3) the
Sentencing Guidelines range; (4) pertinent policy statements of the Sentencing
Commission; (5) the need to avoid unwanted sentencing disparities among
similarly situated defendants; and (6) the need to provide restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. 3553(a)). The burden of establishing
that the sentence is unreasonable, considering both the record and the 3553(a)
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factors, is on the party challenging the sentence. Talley, 431 F.3d at 788.
In this case, we conclude that Smiths total sentence was procedurally
reasonable. The district court correctly determined the guidelines range, as
discussed above, considered the parties arguments and the 3553(a) factors, and
explained its reasons for imposing the sentence.
The sentence was also substantively reasonable. The court noted Smiths
lengthy criminal history and the danger he posed to society. Smith has offered
nothing to show that the sentence was greater than necessary to meet the 3553(a)
factors.
For the foregoing reasons, we affirm Smiths convictions and sentences.
AFFIRMED.

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