US v. Jason Welch, No. 13-4439 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4439 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON CHRISTOPHER WELCH, Defendant - Appellant. No. 13-4440 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON CHRISTOPHER WELCH, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:06-cr-00291-TDS-1; 1:10-cr-00110-TDS-1) Submitted: December 12, 2013 Decided: Before DIAZ, FLOYD, and THACKER, Circuit Judges. January 30, 2014 Affirmed by unpublished per curiam opinion. Alan D. Campbell, S. Hamilton, Massachusetts, for Appellant. Harry L. Hobgood, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Jason Christopher Welch pled guilty in 2007 to one count of mail fraud, in violation of 18 U.S.C. § 1341 (2012), and one count 18 U.S.C. of §§ 2, twenty-seven twenty-four aggravated identity theft, 1028A(a)(1) (2012), and months months imprisonment, in was violation sentenced of to consecutive term of and imprisonment, a concurrent terms of supervised release of three years and one year. In 2010, Welch pled guilty to one count of escape from a residential re-entry center, in violation of 18 U.S.C. § 751(a) (2012), and was sentenced to sixteen months imprisonment and three years of supervised release. terms of In 2012, the district court revoked Welch s supervised release and sentenced him to concurrent prison terms of fourteen months and twelve months in the mail fraud and aggravated identity theft case and a consecutive prison term of fourteen months in the escape case. The court also terms imposed two consecutive twenty-two-month of supervised release. Welch appealed the revocation judgment, arguing that the district court had erred in ordering that the twenty-two-month terms of supervised release run consecutively. The Government conceded that the district court had reversibly erred under 18 U.S.C. § 3624(e) 3 (2012) in ordering that the terms of supervised release run consecutively * and moved this court for a remand to the district court for resentencing. We granted the Government s motion, vacated Welch s sentences, and remanded for resentencing pursuant to 18 U.S.C. § 3624(e). On remand, the district court entered an amended judgment re-imposing the concurrent fourteen- and twelve-month prison terms and the consecutive fourteen-month prison term and imposing concurrent twenty-two-month terms of supervised release. On appeal from the amended judgment, Welch s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether the district court abused its discretion in denying erred in Welch s not motion fully to appoint vacating his substitute sentences and counsel and convening a complete resentencing hearing and in ordering that the prison term imposed in the escape case run consecutively to the prison term imposed in the mail fraud and aggravated identity theft case. Welch was informed of his right to supplemental brief, but he has not done so. declined to file a brief. file a pro se The Government We affirm. * Section 3624(e) provides that a term of supervised release . . . runs concurrently with any Federal, State, or local term of . . . supervised release . . . for another offense to which the person is subject or becomes subject during the term of supervised release. 4 We review for abuse of discretion a district court s ruling on a motion to substitute counsel. Perez, 661 F.3d 189, 191 (4th Cir. United States v. 2011). In determining whether a district court has abused it discretion in denying a motion seeking appointment of substitute counsel, we consider three factors: the timeliness of the motion; the adequacy of the [district] court s inquiry into the defendant s complaint; and whether the attorney/client conflict was so great that it resulted in a total lack of communication preventing an adequate defense. Id. (internal quotation marks omitted). We then weigh these factors against the district court s interest in the orderly administration of justice. United States v. conclude that the Reevey, 364 F.3d 151, 157 (4th Cir. 2004). After reviewing the record, we district court did not abuse its discretion in denying Welch s motion. With respect to the first factor, Welch delayed in bringing the motion. This court s judgment remanding for resentencing issued on March 1, 2013, and Welch s resentencing hearing was scheduled for May 14, 2013. Welch, however, did not make his motion until after the commencement of the resentencing hearing. That is, he waited over two months to bring the motion on the day of resentencing. the motion, hearing. it may have If the district court had granted had to continue the resentencing Moreover, Welch has not shown, and the record does not 5 reveal, any his last-minute Accordingly, the motion was not timely. request. exigent circumstances justifying See Perez, 661 F.3d at 191-92 (concluding that defendant who filed motion for substitution four months after conviction and two weeks before scheduled sentencing hearing had delayed in bringing the motion); Reevey, 364 F.3d at 157 ( [A] continuance request for the substitution of counsel made on the first day of trial is clearly untimely under all but the most exigent circumstances. (internal quotation marks omitted)). Additionally, upon inquiry, the district court learned the basis explanation for Welch s motion, for why wanted he heard new and considered his counsel appointed, and addressed his reasons in its oral ruling denying the motion. Accordingly, the district court s inquiry into the basis for Welch s complaint was adequate. See Perez, 661 F.3d at 192 (concluding that the inquiry factor weighed in the Government s favor where district court requested that defendant explain why he believed he should be appointed new counsel, considered those reasons, and found current counsel had done an effective job in representing defendant). Further, the record does not reveal any basis for concluding that there existed an attorney-client conflict so great adequate defense. court s interest that it prevented Welch from receiving an Weighing these factors against the district in efficient administration 6 of justice on remand, we conclude that the court correctly denied Welch s motion to appoint substitute counsel. Turning conclude they to are Welch s challenges without his because merit to sentences, the mandate we rule precluded the district court from altering the prison sentences it imposed in 2012. The mandate rule is a specific application of case the law of the doctrine. Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007). When we remand for resentencing, the mandate rule precludes the district court from considering issues that were expressly or decided v. United States impliedly 5 Bell, by F.3d this 64, 66 court appeal. Cir. (4th on 1993). In addition, the [mandate] rule forecloses litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court. Id.; see Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) ( [A]ny issue conclusively decided by this court on the first appeal is not remanded, and . . . any issue that could have been but was not raised on appeal is waived and thus not remanded. (internal quotation marks omitted)). Welch sentences in had his the opportunity initial appeal, to but challenge he did his not prison do so. See Volvo Trademark, 510 F.3d at 481 (noting that the plaintiff failed to raise its claim in earlier proceedings and that a 7 remand proceeding is not the occasion for raising new arguments or legal theories ). The propriety of those prison terms and their sequential posture thus was not before the district court at resentencing. Further, we remanded for resentencing pursuant to 18 U.S.C. § 3624(e). Accordingly, the district court did not reversibly err on remand in failing to alter Welch s revocation prison sentences or to hold a complete resentencing hearing. Finally, in accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. amended judgment. We therefore affirm the district court s This court requires that counsel inform Welch, in writing, of the right to petition the Supreme Court of the United States for further review. If Welch requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Welch. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8
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