United States v. Marcellas Hoffman

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 23-2098

________________

UNITED STATES OF AMERICA

v.

MARCELLAS HOFFMAN a/k/a Moe,

Appellant

________________

Appeal from the United States District Court for

the Eastern District of Pennsylvania

(D.C. No. 2:01-cr-00169-002)

District Judge: Honorable Joel H. Slomsky

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Argued on May 21, 2025

________________

Before: PHIPPS, CHUNG and ROTH, Circuit Judges

(Filed: February 12, 2026)

Samantha Stern [ARGUED]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

David E. Troyer [ARGUED]

Robert A. Zauzmer

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

________________

OPINION*

________________

ROTH, Circuit Judge

Since Marcellas Hoffman’s 2003 conviction on six counts of drug, robbery, and

firearms charges, he has successfully challenged his sentence three times, thanks in large

part to fortuitous changes in the law. Accordingly, he has been resentenced three times, in

2006, 2021, and 2023. Hoffman now appeals the judgment and sentence imposed at his

third resentencing. Before Hoffman’s second resentencing in 2021, the District Court

conducted a colloquy, after which the court permitted Hoffman to represent himself at his

2021 resentencing hearing and through the successful appeal of that sentence. Hoffman

argues that the court violated his Sixth Amendment rights when it allowed him to proceed

pro se before his 2023 resentencing without conducting a renewed colloquy to ensure that

he was “knowingly and intelligently” waiving his right to counsel.1 Further, he argues

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

1

Appellant’s Br. 15 (quoting Faretta v. California, 422 U.S. 806, 835 (1975)).

2

that the colloquy he received in 2021 was inadequate to constitute a valid waiver of

counsel. Because the colloquy Hoffman received in 2021 was deficient, we will vacate

Hoffman’s sentence and remand to the District Court for resentencing.

I. Background

A. Prosecution, Sentencing and First Resentencing

In 2003, a federal grand jury returned a second superseding indictment against

Hoffman, charging him with six counts of drug trafficking and firearms charges.2 At trial,

the jury found Hoffman guilty of all six counts. The court sentenced him in 2004 to life

imprisonment plus an additional thirty-five years in prison, which Hoffman appealed. In

2005, following the Supreme Court’s decision in United States v. Booker,3 we affirmed

Hoffman’s convictions but vacated his sentence and remanded for resentencing.4 In

2006, the District Court resentenced Hoffman to sixty-five years (780 months) in prison,

and we later affirmed that sentence on appeal.5

B. Second Resentencing

Over the next decade, Hoffman lodged several unsuccessful collateral challenges

to his sentence. Then, in November 2019, following the Supreme Court’s decision in

United States v. Davis,6 we granted Hoffman’s application for leave to file a successive 28

U.S.C. § 2255 motion challenging his 18 U.S.C. § 924(c)(1)(A) (Count Five) conviction

2

Hoffman was first indicted in 2001, and his first trial resulted in a mistrial.

3

543 U.S. 220 (2005).

4

See United States v. Hoffman, 148 F. App’x 122, 130–31 (3d Cir. 2005) (Hoffman I).

5

See United States v. Hoffman, 271 F. App’x 227, 229–30 (3d Cir. 2008) (Hoffman II).

6

588 U.S. 445 (2019).

3

on the grounds that his predicate offense (conspiracy to commit Hobbs Act robbery) was

not categorically a “crime of violence.” In March 2020, through court-

appointed counsel, Hoffman filed an unopposed motion before the District Court to

resolve his pending § 2255 motion, which the District Court granted. As a result, his

sentence and Count Five conviction were vacated, and he was set to be resentenced on

the five remaining counts of conviction.

Before his second resentencing hearing, Hoffman filed a letter brief with the

District Court asking to proceed pro se for purposes of his resentencing. Hoffman wrote

that he “has been studying his case for 20 years now, and are [sic] very familiar with his

case and are [sic] very capable of representing himself at his resentencing hearing and

very familiar with the Federal Sentencing Guidelines.”7 In January 2021, the District

Court held a hearing over videoconference in response to Hoffman’s brief. Hoffman

reiterated his desire to waive his right to counsel and expressed confidence in his ability

to represent himself, stating to the court, “me having my case for 20 years . . . I’m at the

point right now that I can litigate my case before the court with all the information I think

the court needs to consider.”8

The court proceeded with a colloquy that largely aligned with the model colloquy

outlined in United States v. Peppers.9 The District Court first asked Hoffman if he had

ever studied law, to which he replied: “Yes, at the prison, working in the law library, I

7

Appx191.

8

Appx203–04.

9

302 F.3d 120, 136–37 (3d Cir. 2002); see Appx205–14.

4

represented myself in numerous cases before.”10 The court confirmed that Hoffman had

represented himself before. The court then told Hoffman, “you are charged with very

serious crimes,” and asked the prosecutor to list the charges from the superseding

indictment.11 When the prosecutor responded that he would need time to find a copy of

the indictment, Hoffman told the court: “I can quote it, your honor, if you want to hear

it.”12

The prosecutor then identified the remaining counts, but the court never confirmed

Hoffman’s understanding of them nor inquired into his knowledge of the U.S. Sentencing

Commission’s sentencing guidelines and their role in determining his sentence. Instead,

the District Court moved on to ask: “Now, do we know what the maximum sentences he

faces on each of these counts as of today, has that been established?”13 For each of the

five counts, Hoffman’s counsel recited the maximum sentences, including for using and

carrying a firearm in relation to a drug felony under 18 U.S.C. § 924(c)(1)(A) (Count

Three), for which defense counsel stated, “it’s ten years minimum, maximum life.”14 The

court asked about the periods of supervised release that could follow the potential

sentences, which Hoffman’s counsel then provided, stating that for conspiracy to

distribute under 21 U.S.C. § 846 (Count One) and attempt to possess with intent to

distribute under § 846 (Count Two), “it’s at least five years.”15 The court also confirmed

10

Appx205.

11

Appx205–06.

12

Appx206.

13

Appx207.

14

Appx209.

15

Appx210.

5

the $100 special assessment on each count. At the end of this exchange, the court asked:

“So Mr. Hoffman, you heard the sentences that you face on each of those counts?”16

Hoffman replied: “Yes . . . some of it being contested but yes, your honor, I heard.”17

The court continued: “Those sentences you heard can be ordered to be served

consecutively and obviously you can get a sentence of (technical interruption). Do you

understand?”18 Hoffman confirmed his understanding of the potential penalties.

The court proceeded to ask Hoffman about his familiarity with the Federal Rules

of Evidence, and the Federal Rules of Criminal Procedure and stated that the rules are not

relaxed for pro se defendants. The court explained Hoffman’s right “to call witnesses at

sentencing” and that “it’s much easier for an attorney to gather potential witnesses, gather

evidence, [and] interview witnesses.”19 The court advised Hoffman that “a trained lawyer

would represent you at sentencing better than you would represent yourself, but you do

have the right to represent yourself.”20 After confirming Hoffman still wished to waive

his right to counsel and that he was doing so freely, voluntarily, and without improper

influence, the court found that Hoffman’s waiver was voluntary, that he was “competent

to represent himself at the resentencing and . . . that this is what he wishes to

do.”21

16

Id.

17

Id.

18

Id.

19

Appx212.

20

Id.

21

Appx212–13. The District Court appointed standby counsel.

6

In June 2021, the District Court resentenced Hoffman to thirty-seven-and-a-half

years (450 months) in prison. On appeal in February 2023, although we rejected most of

Hoffman’s arguments, we agreed with him “that the District Court erroneously imposed a

ten-year mandatory minimum consecutive sentence on Count Three.”22 In particular, we

concluded that Hoffman’s sentence violated Alleyne v. United States,23 where the

Supreme Court had held that “[w]hen a finding of fact alters the legally prescribed

punishment so as to aggravate it, the fact necessarily forms a constituent part of a new

offense and must be submitted to the jury.”24 The District Court sentenced

Hoffman under the “discharge” provision of 18 U.S.C. § 924(c), which carried a ten-year

consecutive mandatory minimum sentence,25 but the jury had never been asked to find

whether Hoffman had discharged a firearm.26 Instead, the grand jury had indicted

Hoffman under the “use and carry” provision of § 924(c), which carried a five-year

consecutive mandatory minimum sentence,27 and the jury never found that Hoffman had

“discharged” a firearm.28 So, in imposing a ten-year consecutive mandatory minimum

22

United States v. Hoffman, No. 21-2178, 2023 WL 1775654, at *4 (3d Cir. Feb. 6, 2023)

(Hoffman III).

23

570 U.S. 99 (2013).

24

Id. at 114–15. Alleyne does not apply to cases on collateral review. United States v.

Reyes, 755 F.3d 210, 212 (3d Cir. 2014). However, after the District Court granted his

§ 2255 motion, Hoffman was “subject to a full resentencing and received a new

judgment.” Hoffman III, 2023 WL 1775654 at *4 n.7. Thus, at the time of his 2021

resentencing, Hoffman’s case was no longer on collateral review, and therefore he was

“entitled to the application of the law in effect at the time of his resentencing, which

include[d] Alleyne.” Id.

25

See 18 U.S.C. § 924(c)(1)(A)(iii).

26

Hoffman III, 2023 WL 1775654, at *4.

27

See 18 U.S.C. § 924(c)(1)(A)(i).

28

Hoffman III, 2023 WL 1775654, at *1 & n.1.

7

sentence, the District Court impermissibly sentenced Hoffman for discharging a firearm

though no jury found that fact.29 On that basis, we vacated Hoffman’s sentence and

remanded for a third resentencing.

C. Third Resentencing

In June 2023, the District Court held Hoffman’s third resentencing hearing, where

he again represented himself. Hoffman did not request counsel (or standby counsel). The

court never asked Hoffman whether he wanted counsel, nor did it conduct a colloquy.

Based on a sentencing guideline range of thirty years (360 months) to life, the court

sentenced him to 380 months, followed by eight years of supervised release.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over a

district court’s legal conclusion that “a defendant’s waiver of counsel was knowing and

intelligent”30 and “must indulge every reasonable presumption against a waiver of

29

Id. at *4.

30

United States v. Stubbs, 281 F.3d 109, 113 n.2 (3d Cir. 2002). Although Hoffman

raised the issue that his 2021 colloquy was insufficient for the first time in the appeal of

his 2023 sentence, rather than in the appeal of his 2021 sentence, Hoffman has not

forfeited the issue. See United States v. Miller, 594 F.3d 172, 179 (3d Cir. 2010)

(“[W]hen the resentencing is de novo rather than limited, issues concerning the first

sentence that were previously waived may be raised in the first instance if warranted by

the second sentence.”).

8

counsel.”31 “Because error in assessing whether a defendant may represent himself is

structural, it can never be harmless.”32

III. Discussion

Hoffman argues that the colloquy at his 2021 resentencing was insufficient to

constitute a knowing and intelligent waiver of his right to counsel. We agree.

In Peppers, we summarized “the scope of the court’s responsibility” before

allowing a defendant to proceed pro se, and explained that the court must ensure that the

defendant (1) has “clearly and unequivocally” expressed his desire to represent himself;

(2) “understands the nature of the charges, the range of possible punishments, potential

defenses, technical problems that the defendant may encounter, and any other facts

important to a general understanding of the risks involved;” and (3) “is competent to

stand trial.”33 The second Peppers requirement is the one at issue in this appeal.

Before a court permits a defendant to waive his right to counsel, “he should be

made aware of the dangers and disadvantages of self-representation, so that the record

will establish that ‘he knows what he is doing and his choice is made with eyes open.’”34

A court’s responsibility to conduct a penetrating inquiry into the defendant’s

understanding is not relaxed when a defendant seeks to proceed pro se at the sentencing

31

United States v. Jones, 452 F.3d 223, 230 (3d Cir. 2006) (quoting Buhl v. Cooksey, 233

F.3d 783, 790 (3d Cir. 2000)).

32

Peppers, 302 F.3d at 137.

33

Id. at 131–32.

34

Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S.

269, 279 (1942)).

9

stage, as it “is a critical and often times complicated part of the criminal process that

contains subtleties which may be beyond the appreciation of the average layperson

seeking to represent him/herself.”35 “Thus, at sentencing, just as at trial, ‘a defendant's

waiver of counsel can be deemed effective only where the district court has made a

searching inquiry sufficient to satisfy him[/her] that the defendant’s waiver was

understanding and voluntary.’”36

We look to the colloquy to determine whether a defendant’s waiver of his right to

counsel is “knowing, intelligent, and voluntary.”37 While “no scripted recital is required

for this inquiry,” we nonetheless “require that all of the subjects covered in the model

questions set forth in Peppers be fully explored in the inquiry, to the extent those subjects

are relevant.”38 For purposes of this appeal, the relevant questions from Peppers are as

follows:

3. Do you understand that you are charged with these crimes: [state the

crimes with which the defendant is charged]?

4. Do you understand that the U.S. Sentencing Commission has issued

sentencing guidelines that will be used in determining your sentence

if you are found guilty?

5. Do you understand that if you are found guilty of the crime charged

in Count 1, the Court must impose an assessment of $___, and could

sentence you to as many as ___ years in prison and fine you as much

as $ ___? [Ask defendant this question for each count of the

indictment or information.]

35

United States v. Salemo, 61 F.3d 214, 220 (3d Cir. 1995).

36

Id. (alteration in original) (quoting United States v. Welty, 674 F.2d 185, 189 (3d Cir.

1982)).

37

Jones, 452 F.3d at 228–30.

38

Id. at 234.

10

6. Do you understand that if you are found guilty of more than one of

these crimes, this Court can order that the sentences be served

consecutively, that is, one after another?39

The District Court’s colloquy was deficient in several important respects. In

contrast to Question #3 of the Peppers model colloquy, the court did not ask whether

Hoffman understood the crimes for which he was charged. Instead, the court informed

Hoffman that he was “charged with very serious crimes” and asked the prosecutor to list

the charges.40

The court entirely skipped Question #4.41 The Government contends that “[t]here

is no question that Hoffman knew the Guidelines would apply in his case,” and quotes

Hoffman’s own words from his letter brief that he was “very familiar with the Federal

Sentencing Guidelines.”42 However, a defendant’s statements outside of the colloquy do

not free a district court of its obligation to conduct “[a] complete, on-the-record colloquy

with the defendant, one that assures he understands all the risks of proceeding without an

attorney at the time he makes that choice.”43

39

Peppers, 302 F.3d at 136.

40

Appx205.

41

See Peppers, 302 F.3d at 136.

42

Opp. Br. 32; see also Appx191.

43

United States v. Booker, 684 F.3d 421, 428 (3d Cir. 2012) (alteration in original)

(quoting Jones, 452 F.3d at 232). We have, on limited occasions, looked beyond the

colloquy to determine whether a defendant’s waiver of counsel was knowing and

intelligent. See United States v. McFadden, 630 F.2d 963, 972 (3d Cir. 1980). In

McFadden, we rejected the defendant’s argument that he was deprived of his Sixth

Amendment right to counsel where he: (1) “employ[ed] complaints against counsel as a

dilatory tactic in order to postpone trial, raise a Speedy Trial Act claim, or await possible

death or unavailability of prosecution witnesses”; (2) refused to accept the advice of two

court-appointed criminal defense lawyers; and (3) was informed by a magistrate judge of

11

The District Court’s discussion of the penalties was also lacking. The court

departed from the Peppers framework by not confirming Hoffman’s understanding of the

penalties count by count and instead asking his appointed counsel to recite the maximum

sentences for each count. The court did not inquire into Hoffman’s understanding of each

count’s possible penalties nor provide the amounts of any potential fines. The court also

committed three errors in the recitation of the penalties, most notably by inaccurately

stating that Hoffman’s sentences on all counts “can be ordered to be served

consecutively” when his sentence for Count Three was required to be served

consecutively to his sentences for all other counts.44 The other two errors arose from

Hoffman’s counsel, who (at the court’s direction) stated that the statutory range on Count

Three was “ten years minimum, maximum life,” even though Alleyne later clarified that

the mandatory minimum sentence was only five years’ imprisonment, as no jury found

that Hoffman discharged the firearm.45 Counsel also misstated the minimum supervised

release on Counts One and Two as “at least five years,” when it was, in fact, eight years.46

The District Court did not correct counsel’s misstatements.

the “nature of the charges and the range of punishment” on two prior occasions. Id. We

have considered whether Hoffman’s case might fall within a McFadden exception but

have decided that his circumstances are not so extraordinary as to warrant such a carveout

here. See Jones, 452 F.3d at 232 (“A complete, on-the-record colloquy with the

defendant . . . is in our view a significantly better way of protecting the right to counsel

than the whole-record approach.”).

44

Appx210; see also 18 U.S.C. § 924(c)(1)(D)(ii).

45

Appx209.

46

Appx210.

12

The Government denies that Hoffman “was not adequately advised of the potential

penalties for each count” because “[i]n essence, Hoffman was told that he faced multiple

possible consecutive sentences of life imprisonment . . . [t]hat surely provided him with

the information he needed to intelligently assess whether to represent himself.”47 The

Government also notes that “such a sentence had in fact been imposed on [Hoffman]

earlier,” referring to his original 2004 sentence of life imprisonment plus 35 years.48

However, outside of rare circumstances, “we [have] reject[ed] the approach of some of

our sister Circuits that allows examination of the record as a whole in an attempt to divine

what the defendant understands about the consequences of proceeding pro se.”49

The Government also characterizes the District Court’s error in failing to correct

counsel’s misstatement about the minimum supervised release term on Counts One and

Two as “minor misinformation” that Hoffman “does not claim . . . played any part

whatsoever in his decision whether or not to proceed pro se.”50 However, we rejected a

similar argument in United States v. Booker,51 writing that “the Government’s suggestion

that the District Court’s errors were harmless or otherwise bore no impact on Booker’s

decision to waive his right to counsel seem to controvert our primary focus regarding the

constitutionality of waiver colloquies,” namely, that “[i]t is the District Court that bears the

47

Opp. Br. 27.

48

Id.

49

Booker, 684 F.3d at 428 (alterations in original) (quoting Jones, 452 F.3d at 232).

50

Opp. Br. 30 n.8.

51

684 F.3d 421 (3d Cir. 2012).

13

burden of ensuring that a defendant is acting voluntarily and with the appropriate

knowledge before relinquishing his rights.”52

Finally, the Government argues that Peppers’ model colloquy “provides only a

‘useful framework,’” and that “there is ‘no talismanic formula for the court’s inquiry,’ as

the only fundamental question is whether ‘the defendant’s waiver of counsel is knowing

and understanding as well as voluntary.’”53 However, since the District Court failed to

confirm Hoffman’s understanding of the charges against him, inquire into his familiarity

with the sentencing guidelines, and accurately and thoroughly explain the full range of

potential penalties, we cannot say that Hoffman’s waiver of counsel in 2021 was

“knowing and understanding” as to the risks of self-representation at sentencing.54

IV. Conclusion

Because the District Court’s 2021 colloquy was inadequate, we will vacate

Hoffman’s sentence and remand for the court to conduct a proper colloquy and resentence

Hoffman.

52

Id. at 428.

53

Opp. Br. 23 (quoting Peppers, 302 F.3d at 130–32, 136–37).

54

Peppers, 302 F.3d at 130.

14

United States v. Hoffman, No. 23-2098

PHIPPS, Circuit Judge, dissenting.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court interpreted a

criminal defendant’s Sixth Amendment right to counsel to include the right to self-

representation. Id. at 818; see also U.S. Const. amend. VI (“In all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”).

But even after a criminal defendant who is competent for trial makes a clear and

unequivocal request to proceed pro se in a timely manner, self-representation does not

necessarily follow. See Faretta, 422 U.S. at 835; see also Martinez v. Ct. of Appeal of Cal.,

Fourth App. Dist., 528 U.S. 152, 162 (2000) (explaining that “most courts” require a

criminal defendant to request self-representation “in a timely manner”); Godinez v. Moran,

509 U.S. 389, 399–402 (1993) (differentiating competency to stand trial and competency

for waiving the right to counsel). Rather, the criminal defendant must be “made aware of

the dangers and disadvantages” of self-representation, Faretta, 422 U.S. at 835 (citing

Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)); demonstrate a minimal

level of mental competency “to conduct trial proceedings,” Indiana v. Edwards, 554 U.S.

164, 178 (2008); and choose self-representation “knowing[ly], voluntar[ily], and

intelligent[ly],” Iowa v. Tovar, 541 U.S. 77, 88 (2004).1

In evaluating whether those partially overlapping requirements are satisfied, the

Supreme Court has looked to the totality of the circumstances. See Edwards v. Arizona,

451 U.S. 477, 482 (1981) (“[A] knowing and intelligent relinquishment . . . depends in

each case ‘upon the particular facts and circumstances surrounding that case, including the

1

A valid waiver of the right to counsel is also not absolute; it is conditioned on a criminal

defendant’s preservation of “the dignity of the courtroom” and “compl[iance] with relevant

rules of procedural and substantive law.” Faretta, 422 U.S. at 834 n.46; see also McKaskle

v. Wiggins, 465 U.S. 168, 173 (1984) (conditioning a defendant’s “Sixth Amendment right

to conduct his own defense” on whether “he is able and willing to abide by rules of

procedure and courtroom protocol”).

background, experience, and conduct of the accused.’” (quoting Johnson v. Zerbst,

304 U.S. 458, 464 (1938))).2 Indeed, the Supreme Court has made clear that it has not

“prescribed any formula or script to be read to a defendant who states that he elects to

proceed without counsel.” Tovar, 541 U.S. at 88.

This Court, however, has developed a strict-colloquy method for assessing a

criminal defendant’s request for self-representation. Under that approach, not used by our

sister circuits,3 upon a criminal defendant’s clear and unequivocal request to proceed pro

2

See also Tovar, 541 U.S. at 88 (emphasizing that “[t]he information a defendant must

possess in order to make an intelligent election[] . . . will depend on a range of case-specific

factors, including the defendant’s education or sophistication, the complex or easily

grasped nature of the charge, and the stage of the proceeding”); Faretta, 422 U.S. at 835

(“The record affirmatively shows that [the criminal defendant] was literate, competent, and

understanding, and that he was voluntarily exercising his informed free will.”).

3

See, e.g., United States v. Jones, 778 F.3d 375, 389 (1st Cir. 2015) (“We will uphold a

waiver of the right to counsel as long as the record supports a reasoned conclusion that the

defendant was fully apprised of his right to counsel and of the disadvantages he would

encounter should he elect to proceed pro se.”); Dallio v. Spitzer, 343 F.3d 553, 563 (2d Cir.

2003) (“[W]e have[] . . . also rejected rigid waiver formulas or scripted procedures[] . . .

and emphasized that ‘knowing and intelligent’ waivers depend on the totality of the

circumstances.” (quoting United States v. Fore, 169 F.3d 104, 108 (2d Cir. 1999))); United

States v. Roof, 10 F.4th 314, 359 (4th Cir. 2021) (relying not “on the Faretta colloquy

alone” and instead conducting a “review of ‘the record as a whole’ (quoting United States

v. Singleton, 107 F.3d 1091, 1097 (4th Cir. 1997))); United States v. Sterling, 99 F.4th 783,

794 (5th Cir. 2024) (“[A] district court must consider the totality-of-circumstances in

determining whether a defendant has properly waived his right to counsel.” (quoting United

States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006))); King v. Bobby, 433 F.3d 483, 492

(6th Cir. 2006) (“[I]t is a reasonable application of Faretta and Von Moltke to look at the

whole record, not just the colloquy immediately before the signing of the waiver, to

determine if it was knowing and intelligently entered.”); United States v. Underwood,

88 F.4th 705, 709 (7th Cir. 2023) (“We consider four factors when evaluating whether a

defendant knowingly and voluntarily waived the right to counsel, considering the record

as a whole.”); United States v. Heard, 951 F.3d 920, 928 (8th Cir. 2020) (“This court ‘will

uphold a waiver of counsel absent specific warnings when the record as a whole

demonstrates that the defendant knew and understood the disadvantages of self-

representation.’” (quoting Fiorito v. United States, 821 F.3d 999, 1006 (8th Cir. 2016)));

United States v. Schaefer, 13 F.4th 875, 887 (9th Cir. 2021) (“[T]he focus of our analysis

. . . is whether ‘a fair reading of the record as a whole’ indicates that the defendant

‘understood the dangers and disadvantages of self-representation.’” (quoting United States

v. Audette, 923 F.3d 1227, 1235 (9th Cir. 2019))); United States v. Hansen, 929 F.3d 1238,

1251 (10th Cir. 2019) (“[O]ur cases have repeatedly stressed that the knowing and

intelligent nature of the waiver of the right to counsel turns on the ‘totality of the

2

se, a trial judge may then engage in – at a minimum – the fourteen-question colloquy

articulated in United States v. Peppers, 302 F.3d 120, 136 (3d Cir. 2002). See United States

v. Jones, 452 F.3d 223, 232, 234 (3d Cir. 2006); see also United States v. Booker, 684 F.3d

421, 426 (3d Cir. 2012).4 If there is any infirmity with the colloquy, then the colloquy

cannot, by itself, justify a criminal defendant’s self-representation. See Jones, 452 F.3d at

234; see also Henderson v. Frank, 155 F.3d 159, 166 (3d Cir. 1998) (concluding that a

colloquy skipping “just one” question was deficient (citing United States v. Welty, 674 F.2d

185, 188–89 (3d Cir. 1982))). In essence, the strict-colloquy method operates as a safe

harbor: if a trial judge conducts a flawless colloquy, then the requirements necessary for

evaluating a request for self-representation have been met. See Jones, 452 F.3d at 234.

Perhaps because of the greater certainty associated with a safe harbor, this Court has

expressed a preference for the strict-colloquy approach. See Gov’t of Virgin Islands v.

James, 934 F.2d 468, 473 (3d Cir. 1991) (“[A] colloquy between the defendant and trial

judge is the preferred method of ascertaining that a waiver is voluntary, knowing and

intelligent.”); see also Buhl v. Cooksey, 233 F.3d 783, 800 (3d Cir. 2000); United States v.

Salemo, 61 F.3d 214, 221 (3d Cir. 1995); Welty, 674 F.2d at 191. Even so, this Court has

circumstances, including the background, experience, and conduct of the defendant.’”

(quoting United States v. Williamson, 806 F.2d 216, 220 (10th Cir. 1986))); United States

v. Stanley, 739 F.3d 633, 646 (11th Cir. 2014) (looking to “the whole record” to ascertain

whether a criminal defendant’s waiver of the right to counsel was valid); United States v.

Wright, 923 F.3d 183, 190 (D.C. Cir. 2019) (holding that the “Faretta colloquy” was not

“defective” because “[t]he content of this colloquy ‘lies within the district court’s

discretion so long as the court addresses the core elements of the defendant’s concern’”

(quoting United States v. Hall, 610 F.3d 727, 740 (D.C. Cir. 2010))).

4

But cf. Patterson v. Illinois, 487 U.S. 285, 299–300 (1988) (requiring less rigorous

warnings of the risks of self-representation at the pre-trial stage than those needed to elect

self-representation during trial).

3

not interpreted the strict-colloquy approach as replacing the totality-of-the-circumstances

approach established by the Supreme Court.5

In this case, the Majority Opinion, correctly in my view, identifies imperfections

with the colloquy that the District Court conducted with Marcellas Hoffman after he

requested to represent himself at his sentencing hearing. And because the colloquy was

not flawless, I agree that the strict-colloquy approach does not provide a safe harbor for

affirming the District Court’s granting of Hoffman’s request.

I respectfully dissent from the Majority Opinion, however, because it treats the

strict-colloquy approach as the exclusive method for ascertaining the facts needed to

determine whether a criminal defendant may proceed pro se. That is not the law. It has

always been permissible to consider the totality of the circumstances in assessing a criminal

5

See James, 934 F.2d at 473–74 (explicitly declining “to require a detailed list of advice

such as that mandated for guilty plea proceedings” and observing that the “question of

whether a waiver is voluntary, knowing and intelligent[] ‘depends in each case upon the

particular facts and circumstances surrounding that case, including the background,

experience, and conduct of the accused’” (quoting Piankhy v. Cuyler, 703 F.2d 728, 730

(3d Cir. 1983))); see also United States v. Taylor, 21 F.4th 94, 102–03 (3d Cir. 2021)

(“[W]e have recommended that [a trial court] structure its Faretta inquiry around a set of

model questions. . . . That said, we do not require all trial courts to ask these questions –

‘there is no talismanic formula for the court’s inquiry.’ Indeed, we recognize that a court

may employ tools other than direct questioning if the circumstances call for them.”

(quoting Peppers, 302 F.3d at 135)); United States v. Thomas, 357 F.3d 357, 364 (3d Cir.

2004) (“Although in our opinion in [Peppers] we listed a series of questions that we believe

would provide a ‘useful framework’ in order to ascertain whether a defendant understands

the risks of proceeding pro se, we did not overrule our previous discussion, nor did we

mandate a certain ‘script,’ especially in situations where we were confident that the

defendant was cognizant of the potential problems he would face.”); United States v.

Cocivera, 104 F.3d 566, 569–70 (3d Cir. 1996) (conducting a “careful review of the

record” and determining that the defendant’s waiver was “knowing [and] voluntary”

because the District Court “engaged in a detailed colloquy” and the defendant was

“educated and articulate”); Gov’t of Virgin Islands v. Charles, 72 F.3d 401, 404 (3d Cir.

1995) (“There is no rote speech that the court must recite. Rather, the proper inquiry

depends on the particular facts and circumstances of the case, including the background,

experience, and conduct of the accused.”).

4

defendant’s request for self-representation. See Tovar, 541 U.S. at 88; Faretta, 422 U.S.

at 835; Zerbst, 304 U.S. at 464.

And upon consideration of the totality of the circumstances, there is no question that

Hoffman was qualified to represent himself at the sentencing hearing and that he requested

to do so knowingly, voluntarily, and intelligently. Hoffman had studied his case for twenty

years, and he understood the crimes with which he was charged – he offered to recite the

superseding indictment from memory. In addition, Hoffman had familiarity with the

Sentencing Guidelines; indeed, while representing himself in a prior appeal of his sentence,

Hoffman persuaded this Court to vacate part of his sentence and remand for resentencing.

United States v. Hoffman, 2023 WL 1775654, at *4 (3d Cir. Feb. 6, 2023). Thus, based on

the complete record, Hoffman was minimally competent to proceed pro se, and he made a

knowing, voluntary, and intelligent choice to do so. Consequently, the District Court did

not err in granting Hoffman’s request to proceed pro se, and I would affirm the judgment

of the District Court.

5