United States of America v. Philip W. Carter

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 19, 2006
Decided July 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
No. 05-1629
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PHILIP W. CARTER,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois
No. 04-20005-001
Michael P. McCuskey,
Chief Judge.
O R D E R
Philip Carter was charged with possessing a firearm as a convicted felon, 18
U.S.C. § 922(g)(1); kidnaping, id. § 1201(a)(1); and carrying a firearm during and in
relation to a crime of violence, id. § 924(c). A jury found him guilty on all counts.
The district court sentenced Carter, an Armed Career Criminal, to concurrent terms
of 516 months on the § 922(g)(1) and kidnaping counts, and a consecutive term of 84
months for carrying the gun during the kidnaping. Carter filed a notice of appeal,
but his third court appointed lawyer moves to withdraw because he cannot discern
a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
We notified Carter that he could respond to counsel’s motion, see Cir. R. 51(b), but
he has not. Because counsel’s supporting brief is facially adequate, we review only
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1629 Page 2
the potential issues it identifies. See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997).
Approximately six weeks before trial, Carter’s first appointed attorney
withdrew due to a conflict of interest, and another attorney, John Taylor, was
appointed. On the first day of trial Taylor informed the court that he had met with
Carter twice and was ready to proceed. Taylor, though, also advised the court that
Carter on his own had decided that a competency examination was necessary
despite counsel’s assessment that he was fit to stand trial. The court denied
Carter’s request. Taylor further informed the court that, against his
recommendation, Carter had decided he wanted to represent himself and plead
guilty to the § 922(g)(1) charge. But after the judge explained to Carter the
potential consequences of pleading guilty, Carter changed his mind and elected to
proceed to trial with appointed counsel. Then during jury selection Carter twice
complained that Taylor had not subpoenaed a witness he had requested. The court
interpreted Carter’s complaint as a motion for appointment of substitute counsel
and denied it. Carter renewed this motion on the second day of trial, and the
district judge gave him the option of continuing with Taylor or proceeding pro se
without a continuance. Carter refused to choose, so the court denied his motion and
proceeded. Once again, just before closing arguments, the judge provided Carter
the opportunity to represent himself, and he responded, “I wish to have the
assistance of Mr. Taylor.”
The trial evidence was straightforward. Carter began dating Diana White in
2001, and they lived together in 2002 and 2003. But Carter became physically
abusive, and in January 2004 White obtained a protective order. Days later while
White was staying with her daughter in Kentucky, Carter entered White’s room
and kidnaped her at gunpoint. Carter drove the two of them in a U-Haul truck for
five days through Kentucky, Missouri, and Illinois. White testified that Carter
raped her during the ordeal and threatened to kill her and her family if she tried to
escape. White was rescued by police when Carter got into a traffic accident and
tried to flee the scene. Two handguns were recovered.
In his Anders brief counsel initially focuses on whether Carter might argue
that the district court improperly refused a request to represent himself at trial.
The threshold inquiry is whether Carter ever properly asserted the right to self-
representation. A defendant can exercise his Sixth Amendment right to self-
representation only by knowingly and intelligently waiving his right to counsel.
Faretta v. California, 422 U.S. 806, 835 (1975); United States v. Avery, 208 F.3d 597,
601 (7th Cir. 2000). But when the defendant remains silent or equivocates at
critical junctures in the trial, and does not effectively communicate a definitive wish
to proceed pro se, we will conclude that the defendant forfeited his right to self-
representation. See Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992).

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No. 05-1629 Page 3
Here, on the occasions Carter expressed dissatisfaction with Taylor, Carter
ultimately decided to proceed with Taylor’s assistance after the district court
warned him about the dangers of self-representation. Before trial and again during
jury selection Carter stated his desire to proceed with counsel’s assistance. And
immediately prior to closing arguments, Carter explicitly stated his desire to
continue with Taylor as appointed counsel. Even midway through the government’s
case, when Carter expressed frustration with his appointed counsel’s strategy,
Carter remained silent when the district court offered to allow Carter to terminate
counsel or proceed, thus waiving his right to self-representation. See Cain, 972 F.2d
at 750. On this record we conclude that Carter never exercised his constitutional
right to proceed pro se. Any argument to the contrary would be frivolous.
Counsel also considers whether Carter might argue that his overall sentence
is unreasonable. Carter, who had a history of convictions for violent felonies, faced
the prospect of life imprisonment on the kidnaping and § 922(g)(1) counts, see 18
U.S.C. §§ 924(e), 1201(a), plus a mandatory consecutive term of seven years on the
§ 924(c) count, see id. § 924(c)(1)(A)(ii). Carter’s only relevant objection at
sentencing was to the application of a six-level increase under U.S.S.G.
§ 2A4.1(b)(5), which applies if the victim was “sexually exploited.” Factual
determinations at sentencing are reviewed for clear error. See United States v.
Sutton, 406 F.3d 472, 474 (7th Cir. 2005). Here the jury necessarily credited
White’s testimony in order to convict Carter of kidnaping, and she testified that
Carter raped her during the kidnaping. The district court could not have committed
clear error by likewise crediting White’s testimony for purposes of sentencing.
Because the district court did not err in calculating Carter’s offense level or
criminal history score, and sentenced Carter within the advisory imprisonment
range of 360 months’ to life, his sentence caries a presumption of reasonableness.
See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The district court
stated that it consulted the sentencing factors outlined in 18 U.S.C. § 3553(a), and
counsel has identified no information that would compel the conclusion that the
court’s choice of sentence is unreassonable. Accordingly, we agree with counsel that
it would be frivolous to argue on this record that Carter’s overall sentence is
unreasonable. See United States v. Bryant, 420 F.3d 652, 658 (7th Cir. 2005).
We note that appellate counsel acknowledges that it would be premature to
discuss Carter’s complaints at trial that attorney Taylor was not providing effective
representation. As counsel recognizes, claims of ineffective assistance are better
saved for collateral proceedings under 28 U.S.C. § 2255 where the record can be
further developed. See Massaro v. United States, 538 U.S. 500, 504-05 (2003);
United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).

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Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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