Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

Defendant-appellant John Lawrence Johnson appeals his conviction for conspiracy and creating and supplying fraudulent documents for use in applications for adjustment of alien residence status, in violation of 18 U.S.C. §§ 371 & 2; 8 U.S.C. § 1160(b) (7) (A) (ii) (1988). We affirm.

Early in the trial, Johnson dismissed his attorney. Johnson requested that he be allowed to represent himself at trial. The court appointed advisory counsel, allowing any newly retained counsel to enter the case at any point. See McKaskle v. Wiggins, 465 U.S. 168, 177 (1984).

Johnson contends he was denied effective assistance of counsel by his original counsel and the court-appointed advisory counsel. To the extent he challenges the representation he received, Johnson must establish (1) his representation was deficient, and (2) prejudice as a result of that deficiency. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). The record does not demonstrate either of these elements. Johnson has not overcome the "strong presumption" that his counsel rendered reasonable professional assistance. Id. at 689; accord United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.), cert. denied, 474 U.S. 949 (1985). Further, Johnson was not entitled to the counsel of his choice, advisory or otherwise. See, e.g., United States v. Norris, 780 F.2d 1207, 1211 (5th Cir. 1986).

With regard to his own representation, the Supreme Court has noted that "a defendant who exercises his right to appear pro se 'cannot thereafter complain that the quality of his own defense amounted to a denial of "effective assistance of counsel." ' " McKaskle, 465 U.S. at 177 n. 8 (quoting Faretta v. California, 422 U.S. 806, 835 n. 46 (1975)).

Johnson argues the trial court should have granted a mistrial when the jury originally reached a verdict on the charges against only three of five defendants.

During jury deliberation, the court received the following note from the jury: "If we are in full agreement regarding the guilt or innocence of three defendants but cannot agree on the other two, how does this get resolved? What is the court's ruling on this type of situation?" The court discussed the matter with all counsel and decided to give the jury an Allen instruction. See Allen v. United States, 164 U.S. 492, 501 (1896) (approving instruction to encourage a jury to reach a verdict after it has been unable to do so after some deliberations); see also United States v. Nickell, 883 F.2d 824, 828-29 (9th Cir. 1989) (discussing Allen instruction).

The trial court asked for the jury to be summoned to receive the Allen charge. However, no charge was given as the jury sent a new note to the court indicating it had reached a verdict as to each defendant. Since the jury reached its verdict on the basis of its own deliberations, there is no Allen-type issue on which to appeal. Therefore, the motion for mistrial was properly denied.

III. Admissibility and Credibility of Evidence

Johnson contends much of the evidence against him at trial was erroneously admitted or was not credible.

Johnson has not shown an abuse of discretion in the admission of the challenged evidence. Further, Johnson's contentions essentially go to the weight of the evidence and credibility of the witnesses. See, e.g., United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.), cert. denied, 484 U.S. 914 (1987); Lyda v. United States, 321 F.2d 788, 794 (9th Cir. 1963) ("The credibility of witnesses is a matter for the jury, not an appellate court."). The judge instructed the jury on factors to assess in weighing the testimony and evidence. The jury resolved these matters against Johnson.

Finally, we find no abuse of discretion in the district court's denials of the motions for severance. See, e.g., United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). Johnson has not shown that the jury was unable to compartmentalize the evidence as it relates to separate defendants. See United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983).

Johnson appeals the denial of his motion for revocation of the detention order prior to trial. First, we find there was no error in the district court's order denying release under the requirements of United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). More importantly this inquiry is now moot.

Johnson does not dispute his calculated offense level of 17. He contends the Presentence Report, paragraphs 36-43, erroneously assigned him a Criminal History Category of II. Under this computation, he contends the district court erroneously considered a Sentencing Guidelines range of 27 to 33 months instead of 24 to 30 months (with a Criminal History Category of I). Johnson maintains the Criminal History Category of II incorrectly includes an aggravated assault offense which was overturned on appeal.

The court committed no error. The court's Statement of Reasons for Imposing Sentence shows Johnson was assigned a Criminal History Category of I and the applicable range was 24 to 30 months. The court expressly noted the aggravated assault was reversed on appeal. See U.S.S.G. Sec. 4A1.2, comment. (n. 6).

Johnson challenges the reasonableness of the court's upward departure to the maximum 60-month sentence of imprisonment from the Sentencing Guidelines range of 24 to 30 months. Whether the Guidelines permit a court to depart is reviewed de novo. United States v. Singleton, 917 F.2d 411, 412 (9th Cir. 1990) (section 5K2.7).

The court gave three reasons for the upward departure. The first was for disruption of a governmental function, pursuant to U.S.S.G. Sec. 5K2.7. Second, the court noted the Sentencing Commission had not taken into consideration the large numbers of aliens involved. The court noted that in a related provision, U.S.S.G. Sec. 2L1.1, comment. (n. 8) the Commission provided that an upward departure should be considered for offenses involving large numbers of aliens. The court reasoned that U.S.S.G. Sec. 5K2.0 expressly noted circumstances listed in other provisions but not the applicable provision could serve as a basis for departure. Finally, the court found the property loss from the offense had not been adequately taken into account, pursuant to U.S.S.G. Sec. 5K2.5, p. 5. Based upon our review of the record and under the circumstances of this case, we find no error in the court's departure and in the facts justifying the decision to depart. We find, therefore, that the district court did not abuse its discretion, and the departure was in all respects reasonable.

We find the other issues raised by Johnson on appeal to be unmeritorious.

AFFIRMED.