Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-89-00149-EJG. Edward J. Garcia, District Judge, Presiding.
Before: Arthur L. Alarcon, Robert Boochever, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Boochever.
BOOCHEVER, Circuit Judge:
Willard Cortez Robinson appeals his conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), use of a firearm during the commission of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He contends that the federal prosecution of his case violated his due process rights, that he received ineffective assistance of counsel and that the district court erred in denying a continuance of trial. He also claims that there was insufficient evidence for his conviction for possession of cocaine, that the district court erred in computing his sentence and that he was denied his right to his originally appointed appellate counsel.*fn1
Information was received that Robinson, a parolee at large, was dealing in drugs. On April 8, 1988, while investigating another parolee, parole officers searched a motel room in Pinole, California, which was registered to Robinson. The officers found 407 grams of cocaine and evidence suggesting drug trafficking activity. On August 17, 1988, based on further information regarding Robinson's drug dealings, parole officers conducted a parole search at an apartment in Sacramento which Robinson had rented since May 12, 1988 under an assumed name. Robinson and Estella Thompson were present during the search. After searching the apartment, the officers seized two guns, ammunition, 158.2 grams of cocaine in a cereal box, 12.5 grams of cocaine base and $2,800 in cash in a man's jacket. They arrested Robinson.
On April 7, 1989, Robinson was charged in a four count indictment with (1) possession of cocaine base with intent to distribute, (2) possession of cocaine with intent to distribute, (3) use of a firearm during commission of a drug trafficking offense, and (4) being a felon in possession of a firearm. The case was set for jury trial. The district court continued the trial date on two occasions. Robinson relieved one appointed counsel and caused the second appointed counsel to withdraw from representation by filing a malpractice suit against him.
Robinson then retained the services of Kapp Nees. Upon approval from the court, Nees continued the trial date to March 26, 1990. The court denied Nees' second request to continue the trial date. Subsequently, Robinson fired Nees for failing to secure defense witnesses and proceeded to represent himself in pro per. The court denied Robinson's request for a continuance.
On March 29, 1990, the jury convicted Robinson of counts 2, 3 and 4. The court appointed Carl Larson to represent Robinson for sentencing. After the district court evaluated Robinson's objections to the Presentence Report (hereinafter PSR), it added the 407 grams of cocaine found in the Pinole search, to the 158.2 grams of cocaine seized in Sacramento to compute Robinson's base offense level equaling 26.*fn2 Furthermore, the district court found that Robinson's criminal record qualified him as a career offender which resulted in an offense level of 34. Robinson's criminal history points were computed to be 14 which equated to a criminal history category of VI. The guideline range for Robinson's offenses was 262 to 327 months imprisonment and a 60 month mandatory and consecutive prison term pursuant to 18 U.S.C. § 924(c)(1). The court sentenced Robinson at the top of the guideline range, plus the 60 month mandatory consecutive term, a total of 387 months imprisonment, followed by five years supervised release.
I. Due Process of Federal Prosecution
Robinson argues that filing this case in federal court was a violation of his right to be charged in the court system of original jurisdiction. In this case the California Department of Corrections Parole Officers conducted the parole search resulting in Robinson's arrest. The case was subsequently referred to the United States Attorney's Office for prosecution. Because this issue was not raised in the court below, we review for plain error. See Fed. R. Evid. 103(d); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 493 U.S. 863, 107 L. Ed. 2d 135 , 110 S. Ct. 179 (1989).
Robinson claims that because this case originated as a state parole search, it should have stayed in the state court system. His claim is without merit. Robinson cites United States v. Williams, 746 F. Supp. 1076 (D. Utah 1990), for support, but that case is distinguishable from the instant case. Williams held that referral for federal prosecution was improper because the police officers exercised unfettered discretion as to which cases to refer for federal or state prosecution. Id. at 1081. That court reasoned that the defendant's procedural due process rights had been violated because of the inability to measure the referral decision against an objective and constitutionally permissible standard. Id. at 1083. In contrast, no evidence in the record suggests that referral was improper in Robinson's case. This case was referred to the United States Attorney's Office (USAO) for review and prosecution, and we must assume that the USAO exercised its proper discretion to prosecute in federal court. In addition, Williams is a district court decision from another circuit and thus is not binding authority.
It is well recognized that successive prosecutions based on the same conduct are permissible if brought by separate sovereigns, and trial in a state court does not bar trial in federal court for the same criminal conduct. United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir. 1987). The State and Federal Governments are separate sovereigns, each with inherent power "to determine what shall be an offense against its authority and to punish such offenses . . . ." See United States v. Wheeler, 435 U.S. 313, 320, 55 L. Ed. 2d 303 , 98 S. Ct. 1079 (1978); Abbate v. United States, 359 U.S. 187, 193-94, 3 L. Ed. 2d 729 , 79 S. Ct. 666 (1959); Bartkus v. Illinois, 359 U.S. 121, 131-32, 3 L. Ed. 2d 684 , 79 S. Ct. 676 (1959). Furthermore, a sovereign's "interest in vindicating its sovereign ...