In United States v. Hakim, No. 19-11970 (Apr. 14, 2022) (William Pryor, Grant, Anderson), the Court vacated Mr. Hakim’s conviction and remanded for further proceedings.

The Court addressed whether a defendant’s waiver of his right to counsel is knowing when a court gives materially incorrect or misleading information to the defendant about his potential maximum sentence.  Here, Mr. Hakim was found guilty after a jury trial on three misdemeanor counts of willful failure to file a federal income tax return.  Although he was represented by counsel at trial, he was without counsel during the pretrial process.  At his arraignment, Mr. Hakim expressed his desire to waive his right to counsel and to represent himself.  The magistrate judge found that Mr. Hakim’s waiver was knowing after misinforming him that the maximum sentence he could receive if convicted was 12 months imprisonment.  After trial, Mr. Hakim was sentenced to 21 months of imprisonment.  On appeal, Mr. Hakim argued that his waiver of counsel was not knowing.

As an initial matter, the Court first clarified that the applicable standard of review on appeal was de novo–and not plain error–where a pro se defendant failed to contemporaneously object to the validity of his own waiver.  It then agreed with Mr. Hakim, holding that because Mr. Hakim had received incorrect information about the possible punishment he faced, there was no knowing and intelligent waiver of his right to counsel.  Here, the magistrate judge not only failed to inform Mr. Hakim of the maximum sentence, but he misled Mr. Hakim by incorrectly representing that the maximum term of imprisonment would be one year, when it was instead three year.  The government bore the burden of showing that there was other evidence in the record to support that Mr. Hakim knew the correct range from another source in order to establish that the waiver was knowing, but it could not meet its burden.

Additionally, Mr. Hakim did not need to show prejudice to obtain a reversal because the constitutional error was structural.  That is, he was deprived of his constitutional right to counsel at a critical stage.

Judge Grant dissented.  She would have reviewed for plain error and upheld Mr. Hakim’s conviction.  She distinguished Mr. Hakim’s case from those in other circuits that have applied de novo review, because he proceeded to trial and sentencing with counsel.