Argued April 8, 2013.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:11-CR-00105(01)RM -- Robert L. Miller, Jr., Judge.
For United States of America, Plaintiff - Appellee: Emily Kathleen Cremeans, Attorney, Office of The United States Attorney, Hammond, IN; Donald J. Schmid, Attorney, Office of The United States Attorney, South Bend, IN.
For Roderick D. Sinclair, Defendant - Appellant: Sarah O'Rourke Schrup, Attorney, Northwestern University School of Law, Chicago, IL.
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges. WILLIAMS, Circuit Judge, with whom POSNER, Circuit Judge, joins, dissenting.
Sykes, Circuit Judge.
Roderick Sinclair was arrested in Elkhart, Indiana, for driving with a suspended license. The police found a loaded handgun, a distribution quantity of marijuana, and tools of the drug-trafficking trade in his car. Sinclair was indicted for possessing marijuana with intent to distribute, see 21 U.S.C. § 841(a)(1), possessing a firearm
in furtherance of a drug-trafficking crime, see 18 U.S.C. § 924(c), and possessing a firearm as a felon, see id. § 922(g)(1).
Trial was set to begin on a Tuesday. On Wednesday of the week before trial, Sinclair wrote the district judge asking for a continuance to allow his family to hire a private attorney to represent him. The judge received the letter on Thursday, docketed it on Friday, and scheduled a hearing for the following Monday. At the end of the hearing, the judge denied the continuance request. Trial began as scheduled the next day, and the jury convicted Sinclair on all counts.
Sinclair's presentence report recommended grouping the drug count with the felon-in-possession count under § 3D1.2 of the sentencing guidelines, which directs the court to combine " [a]ll counts involving substantially the same harm" into a single group and determine the offense level for the group. U.S.S.G. § 3D1.2. Grouping is required in several situations, one of which is when a count of conviction " embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guidelines applicable to another of the counts." Id. § 3D1.2(c).
The government objected to the grouping recommendation, noting that although the two counts ordinarily would be treated as specific offense characteristics of each other, they did not have that effect in this case because Sinclair was also convicted of a § 924(c) offense. The statutory penalty for a § 924(c) conviction is a mandatory 60-month consecutive sentence, and with that conviction in the mix, the guidelines direct the court not to apply any offense-characteristic enhancement for firearm possession to the underlying count. See U.S.S.G. § 2K2.4 cmt. n.4. In other words, this particular combination of counts removed the otherwise applicable basis for grouping under § 3D1.2(c).
The judge adopted the government's interpretation of the grouping rule. Absent grouping, the offense level was 17 instead of 16, resulting in a slightly higher guidelines range for the two counts. The judge imposed concurrent within-guidelines prison terms of 57 months on the drug and felon-in-possession counts and tacked on the mandatory consecutive 60-month term for the § 924(c) conviction, for a total sentence of 117 months in prison.
Sinclair appealed, raising two issues. First, he argues that the district court violated his Sixth Amendment right to counsel of his choice by denying a continuance to allow his family to hire a private attorney. Second, he challenges the court's decision not to group the drug and felon-in-possession counts.
We affirm. The Sixth Amendment entitles a criminal defendant to retain counsel of his choice, see United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), but the trial court has broad discretion in addressing a continuance motion based on the right. The court is entitled to weigh the defendant's claim against the need to ensure the fair and efficient administration of justice. The judge did that here, and we find no abuse of discretion in his decision to deny the requested continuance.
We also find no error in Sinclair's sentence. In the ordinary case, the drug and felon-in-possession counts are treated as specific offense characteristics of each other, see U.S.S.G. § § 2D1.1(b)(1), 2K2.1(b)(6)(B), triggering offense-level enhancements and thus the grouping rule of § 3D1.2(c). But the guidelines specifically provide that enhancements for firearm possession do not apply when the defendant is also convicted of violating § 924(c), which carries a mandatory consecutive sentence. See id. § 2K2.4 cmt. n.4. Because
the otherwise applicable offense-characteristic enhancements were not applied here, there was no basis for grouping under § 3D1.2(c).
Elkhart Police Officer Michael Bogart had some history with Sinclair, or at least enough to know that he did not have a valid driver's license. On the afternoon of June 16, 2011, Bogart spotted Sinclair driving a blue Cadillac westbound on Blaine Avenue in Elkhart. After confirming that Sinclair's license was indeed suspended, the officer followed the Cadillac and pulled up behind the car as Sinclair parked on Roys Avenue.
Officer Bogart approached and arrested Sinclair for driving with a suspended license. A frisk turned up a plastic bag containing marijuana in Sinclair's front pants pocket. A search of the car revealed numerous bags of marijuana, a supply of small plastic bags, two digital scales, and a loaded handgun. At the Elkhart police station, Sinclair admitted that the marijuana was his and that he planned to sell it. He also admitted that the handgun was his.
A federal grand jury indicted Sinclair for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c), and possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). A federal defender was appointed and the case was set for trial.
About a month before trial, Sinclair filed two motions, one to continue the trial and one to suppress evidence. The continuance motion was based on nascent plea negotiations and also raised conflicts in the trial schedules of the attorneys. The district court granted the continuance request and rescheduled the trial to February 7, 2012. On January 6, 2012, the court held a hearing on the suppression motion and denied it. Sinclair's trial remained scheduled for February 7, a month later.
On February 2--the Thursday before trial--the judge received a letter from Sinclair seeking another continuance. The letter, dated February 1, explained that some of Sinclair's family members planned to hire private counsel to represent him using their tax-refund money to pay the attorney's retainer. Sinclair told the court that his family members expected to receive their refunds within seven to ten business days; he asked for a continuance of no more than 21 days. Sinclair also expressed dissatisfaction with his federal defender, complaining that the lawyer had not followed through with an important line of questioning at the suppression hearing. Finally, Sinclair claimed to have new evidence relevant to suppression. He didn't say what it was, but he assured the court that his new lawyer would present it once he was retained.
The judge docketed the letter on Friday, February 3, and scheduled a hearing for February 6, the following Monday. At the hearing the judge attempted to clarify Sinclair's reasons for the continuance request, asking Sinclair whether his family members had contacted a private attorney yet. Sinclair said yes, his family had contacted Attorney Mark Lenyo, who had quoted a retainer amount. Sinclair reiterated that his family members planned to use their tax-refund money to pay the retainer and expressed confidence that they would soon have their refunds in hand.
The judge then asked Sinclair why he thought his current federal defender was not representing him properly. Sinclair responded that the lawyer had confused ...