The United States Court of Appeals for the Eleventh Circuit held that the defendant had clearly and unequivocally asserted his Sixth Amendment right to self-representation at sentencing, which imposed a constitutional duty on the U.S. District Court for the Southern District of Florida to conduct a Faretta inquiry and that the sentencing issues were not mooted by President Biden’s commutation of the defendant’s prison term to a July 16, 2025, release date, as resentencing could yield a more favorable outcome consistent with the commutation.

Background

Roderick White agreed to cooperate with federal law enforcement in January 2020, identifying Roshawn Jermaine Davis as his fentanyl supplier. Between January and October 2020, the FBI, through White, purchased crack cocaine, heroin, and fentanyl from Davis on nine occasions. Davis and White engaged in numerous recorded phone calls to arrange these purchases, using code words. 

Wiretaps revealed co-conspirator Jeff Hayden and discussions of Hayden supplying Davis with kilogram quantities of heroin or fentanyl. Pole camera footage captured interactions with unindicted co-conspirators, including Ernest Grissom, Betsy Mieses, Darrington Horne, Tracy Battle, and Curtis Bridges. Searches in October 2020 of Davis’ and Mieses’ homes yielded evidence of drug trafficking, including scales, ammunition, phone images and videos discussing drugs, and plastic baggies. After his arrest, Davis’ jail communications urged spreading word of White’s cooperation and continued discussing trafficking.

Procedural History

Davis’ jury trial occurred in May 2022, resulting in convictions on all counts. Davis filed post-conviction pro se motions to set aside the verdict (struck for local rule, violation because he was represented by counsel) and continue sentencing (adopted by counsel and granted). On August 5, 2022, he filed another pro se motion to proceed pro se, relieve counsel, and set aside the verdict, citing Faretta v. California, 422 U.S. 806 (1975) (establishing Sixth Amendment right to self-representation). The court struck his motion for noncompliance with the court’s Local Rules because he was represented by counsel. 

Counsel moved to withdraw citing irreconcilable differences. At an ex parte hearing, Davis listed his grievances and, when asked, affirmed he wanted to represent himself (with standby counsel preferred but pro se if necessary). The court acknowledged the need for a colloquy but instead probed counsel’s competence, found no irreconcilable differences, attributed the deterioration to Davis, and denied withdrawal. 

The Presentence Investigation Report attributed drugs from August 2019 to October 2020 to Davis as White’s supplier, resulting in base offense level 30, plus enhancements for total level 34 and criminal history IV. At sentencing, the court set level 30 and category IV (135-168 months of imprisonment), imposing 135 months’ imprisonment, four years’ supervised release, and a $1,000 assessment.

Davis timely appealed. After oral argument, on January 17, 2025, President Biden commuted Davis’ prison term to a July 16, 2025, release date, leaving supervised release and other components unchanged.

Analysis

The Court addressed the sentencing issue raised by Davis, focusing on his claim that the District Court erred by failing to conduct a Faretta hearing after he repeatedly expressed a clear and unequivocal desire to proceed pro se at sentencing. The Court noted that even with President Biden’s commutation of Davis’ sentence, this issue is not moot. The Court stated that it considers mootness sua sponte because it is a basic jurisdictional issue. National Advertising Co. v. City of Miami, 402 F.3d 1329 (11th Cir. 2005). A case on appeal becomes moot and ceases to be a case or controversy, “when it no longer presents a live controversy with respect to which the court can give meaningful relief.” United States v. Al-Arian, 514 F.3d 1184 (11th Cir. 2008).

Davis did not withdraw his Faretta argument on appeal since President Biden commuted his sentence on January 17, 2025. Moreover, the requested relief—resentencing—could result in a lower sentence for Davis than his current sentence as modified by the President Biden’s commutation, which was set to end on July 16, 2025. Thus, the Court determined that the sentencing issues were not moot.

As a preliminary matter, the Government argued that the Faretta issue was not raised in Davis’ initial brief, and therefore, it was forfeited. Generally, “a party may not raise through a supplemental brief an issue not previously raised in his principal brief.” United States v. Hembree, 381 F.3d 1109 (11th Cir. 2004). However, “the refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary.” United States v. Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc). The Court noted that the Eleventh Circuit has on occasion exercised its discretion to consider a forfeited issue when “the proper resolution is beyond any doubt.” Id. The Court determined that Davis expressed a clear and unequivocal desire to proceed pro se, and he was therefore entitled to a Faretta hearing.

Additionally, the underlying reason issues not raised in the initial brief are deemed abandoned is that the “appellee is entitled to rely on the content of an appellant’s brief for the scope of the issues appealed,” the Court explained. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th Cir. 2004). If the argument is not in the initial brief, “the appellee would have no opportunity to respond to it.” This concern is not present here, since the Court granted Davis’ motion to file his supplemental brief over the Government’s opposition and gave the Government 30 days to respond.

The Court turned to the merits of Davis’ argument. A defendant’s waiver of his right to counsel is a mixed question of fact and law reviewed de novo. United States v. Evans, 478 F.3d 1332 (11th Cir. 2007). Notably, the Supreme Court has ruled that a violation of a defendant’s right to self-representation is not subject to harmless error review but instead requires automatic reversal. McKaskle v. Wiggins, 465 U.S. 168 (1984).

In Faretta, the Supreme Court held that “[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Under Faretta, when a defendant “clearly and unequivocally declare[s] to the trial judge that he want[s] to represent himself and [does] not want counsel,” the trial judge has a constitutional duty to ensure that the defendant “competently and intelligently” chooses self-representation and, if he does, to permit him to do so.

The Eleventh Circuit has ruled that the Sixth Amendment right to counsel applies to all “critical stage[s]” of a criminal proceeding, including sentencing. Golden v. Newsome, 755 F.2d 1478 (11th Cir. 1985). And the Supreme Court in Faretta was clear that “the Sixth Amendment right to the assistance of counsel implicitly embodies a correlative right to dispense with a lawyer’s help.” Thus, although not explicitly determined by Faretta or by any published case from the Eleventh Circuit, if there is a right to counsel at sentencing—which is undeniable—then it follows that there is also a correlative right to proceed pro se at sentencing if a defendant has clearly and unequivocally sought to do so, and if the court has made the appropriate determination after a searching Faretta inquiry, the Court declared.

This position is consistent with at least six other Circuits that have explicitly ruled that Faretta can be invoked after trial but before sentencing. United States v. Johnson, 367 F. App’x 375 (3d Cir. 2010) (unpublished); United States v. Cano, 519 F.3d 512 (5th Cir. 2008); United States v. Jones, 489 F.3d 243 (6th Cir. 2007); United States v. Mancillas, 880 F.3d 297 (7th Cir. 2018); Lopez v. Thompson, 202 F.3d 1110 (9th Cir. 2000); United States v. Silkwood, 893 F.2d 245 (10th Cir. 1989). The Eleventh Circuit officially joined them.

The Court determined that Davis’ request to proceed pro se was clear and unequivocal. He filed a written pro se motion asking to proceed pro se. His motion was titled, “Defendant’s Motion to Proceed Pro Se, to Relieve Counsel, to Set Aside Jury Verdict & Order a New Trial, Pursuant to Rule 33(b)(2) of the Federal Rules of Criminal Procedure.” In the motion, he repeatedly cited to Faretta itself as well as to United States v. Cesal, 391 F.3d 1172 (11th Cir. 2004), vacated, 545 U.S. 1101 (2005), to support his claimed right to represent himself at sentencing. In fact, Davis’ counsel subsequently moved to withdraw, observing in his own motion that Davis had expressed the desire to proceed pro se. At that point, the District Court conducted a hearing, in which Davis renewed his request to proceed pro se.

At the start of the hearing, the court acknowledged that Davis had moved to proceed at sentencing pro se. The court asked Davis if he wanted a new attorney or if he wanted to represent himself, and Davis said he wanted to represent himself with standby counsel. The court then offered Davis a binary choice: (1) he could either have new counsel or (2) he could represent himself. Davis unequivocally replied, “I would like to represent myself.” This was a clear and unambiguous waiver of counsel and a request to proceed pro se, and the court acknowledged as much, replying, “All right. So, at this point, let me give Mr. Donnelly an opportunity to respond. And then I’ll inquire as to whether, in fact, it is appropriate to permit you to represent yourself.”

The Court explained the problem is that the court never followed through on what it said it would do and what the law required it to do. Instead, the court determined that Donnelly was competent and there had not been an irreconcilable breach in the attorney-client relationship. The court denied counsel’s motion to withdraw. It never conducted the Faretta hearing, and Davis proceeded to sentencing with counsel. 

The Government’s argument that Davis’ request was unclear, properly understood “as frustration with the trial verdict and not a genuine request for self-representation” or “at most a request to proceed with standby counsel” is foreclosed by the record and by precedent, the Court stated. In Dorman v. Wainwright, 798 F.2d 1358 (11th Cir. 1986), the Dorman Court held that in order to invoke the right to proceed pro se under Faretta, a defendant “must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made…. A defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request.”

In Dorman, although the defendant “never had a formal opportunity to show that he had the requisite knowledge and intelligence to waive his right to counsel,” he cited Faretta in written requests to the trial judge and “began civil proceedings against the Public Defender[,] hoping to create a conflict of interest.” Rejecting the Government’s argument that “Dorman’s wish … was not to proceed pro se, but to avoid having his case handled by the Public Defender,” the Dorman Court concluded that “[n]o reasonable person could deny that Dorman wanted to conduct his own defense.”

In the present case, the Court stated that Davis has gone even further. Not only did he file a written request to the court expressly citing Faretta, just as Dorman did, Davis formally told the court at the hearing that he wanted to represent himself. “No reasonable person could deny that” Davis wanted to proceed pro se, the Court concluded. See also Stano v. Dugger, 921 F.2d 1125 (11th Cir. 1991); Orazio v. Dugger, 876 F.2d 1508 (11th Cir. 1989) (holding that the defendant “clearly and unequivocally asserted his desire to represent himself” by telling the trial judge at a hearing that he wanted to represent himself); United States v. Edwards, 716 F.2d 822 (11th Cir. 1983) (per curiam) (finding that the defendant “made a knowing and intelligent decision to relinquish his right to counsel” in light of his filed motion requesting that his attorney withdraw and his responses to multiple inquiries by trial court).

The Government argued in the alternative that Davis’ request for self-representation was waived by his own conduct, since Davis “raised no objection when Donnelly represented him at sentencing, even when the court referred to Donnelly as Davis’s attorney.” But again, this argument is foreclosed by Dorman. In Dorman, after failing to hold a Faretta hearing, the trial judge permitted the withdrawal of the public defender and appointed a new attorney, Timmerman. Although “Dorman stopped filing letters and requests to proceed pro se” from when Timmerman was appointed until after trial, the Dorman Court noted that Dorman would have run the risk of contempt of court had he continued to file letters and motions, “and it would be a weak right indeed if a defendant had to risk sanctions by the court to keep a constitutional right.” Ultimately, the Dorman Court held that “[a]fter a clear denial of the request, a defendant need not make fruitless motions or forego cooperation with defense counsel in order to preserve the issue on appeal.”

Following the District Court’s denial of his counsel’s motion to withdraw, Davis was not required to make repetitive motions or to forego cooperation with his counsel in order to preserve the issue, according to the Court. The cases cited by the Government to the contrary are inapposite, since Davis never sought permission from the court to act as co-counsel. Cross v. United States, 893 F.2d 1287 (11th Cir. 1990). Nor did he clarify that his application to proceed pro se was only for the purpose of arguing specific motions. See United States v. Dormeus, 523 F. App’x 545 (11th Cir. 2013) (unpublished). Rather, Davis unequivocally asserted his Sixth Amendment right and then remained silent after the District Court denied the request and affirmed Donnelly’s representation of him. The Court stated that Davis’ silence was not a waiver, and he needed to do no more to preserve the issue.

The Supreme Court has said that because “the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis…. The right is either respected or denied; its deprivation cannot be harmless.” McKaskle. When a defendant is deprived of his Sixth Amendment right to self-representation, the ensuing proceedings must be vacated, as in Faretta (concluding that the defendant was denied the right to conduct his own defense at trial and thus vacating the conviction and remanding for a new trial).

Conclusion

Accordingly, the Court vacated Davis’ sentence and remanded for resentencing consistent with President Biden’s commutation of his prison term. The Court instructed that on remand, the District Court shall conduct an appropriate Faretta inquiry if Davis seeks to represent himself at resentencing. See: United States v. Davis, 130 F.4th 1272 (11th Cir. 2025). 

Editor’s note: Anyone interested in the issue of self-representation at sentencing is encouraged to read the Court’s full opinion.  

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