United States V Jarred Ford

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UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 23-4011

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JARRED JAVON FORD,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:21-cr-00105-BO-1)

Argued: September 24, 2024 Decided: July 23, 2025

Before AGEE, RUSHING, AND BENJAMIN, Circuit Judges.

Affirmed by unpublished opinion. Judge Rushing wrote the majority opinion, in which
Judge Agee joined. Judge Benjamin wrote an opinion concurring in part and concurring
in the judgment.

ARGUED: Amos Granger Tyndall, PARRY LAW, PLLC, Chapel Hill, North Carolina,
for Appellant. Lucy Partain Brown, OFFICE OF THE UNITED STATES ATTORNEY,
for Appellee. ON BRIEF: Thomas K. Maher, AMOS TYNDALL PLLC, Carrboro, North
Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.

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RUSHING, Circuit Judge:

Defendant Jarred Ford represented himself at trial, and the jury convicted him of

possessing a firearm as a convicted felon. The Sentencing Guidelines recommended a

sentence of 120 months, which the district court imposed. Now Ford appeals his conviction

and sentence, arguing that the district court erred in allowing him to proceed pro se and

that it procedurally erred in imposing his sentence. Because Ford knowingly waived his

right to counsel and the district court’s sentencing errors did not prejudice him, we affirm.

Nash County Sheriff’s Deputy Shelby Smith stopped Ford’s vehicle on Interstate

95 for speeding and unsafe movement. After smelling marijuana, Deputy Smith ordered

Ford to exit the vehicle and requested backup. Deputy William Toney arrived, and the

deputies attempted to detain and frisk Ford, who resisted. Upon seeing that Ford had a

handgun in his waistband, Deputy Smith alerted Deputy Toney. Ford then shot Deputy

Toney in the arm and hip at close range and shot him a third time in the other arm as he

fell to the ground. Ford continued firing at Deputy Smith until he ran out of ammunition.

A federal grand jury indicted Ford on one count of possessing a firearm as a felon,

in violation of 18 U.S.C. §§ 922(g)(1) and 924. 1 Ford elected to represent himself, and the

jury found him guilty after a one-day trial. The Probation Office prepared a Presentence

Investigation Report (PSR) calculating Ford’s total offense level as 42, which carries a

Sentencing Guidelines range of 360 months to life. The statutory maximum for Ford’s

1
The State of North Carolina also charged Ford with two counts of attempted first-
degree murder.
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offense, however, was 120 months, so that was the Guidelines’ recommended sentence.

The district court sentenced Ford to 120 months in prison.

II.

We first address Ford’s contention that the district court erred in granting his request

to represent himself.

At Ford’s initial appearance, the magistrate judge advised Ford of his rights and

appointed the Federal Public Defender’s Office to represent him. The magistrate judge

also advised Ford of the charge and potential penalties, and Ford confirmed that he

understood both.

A few months later, Ford informed his appointed counsel that he wanted to represent

himself, and counsel moved to withdraw. At a hearing on the motion, counsel explained

Ford’s request and advised the district court that Ford had also elected to represent himself

on the related attempted murder charges in state court. The court reviewed Ford’s Pretrial

Services Report and then explained to Ford: “You have a right to counsel. You also have

a right to be your own lawyer. I’d admonish you that you need legal skill to appear in a

court.” J.A. 53. The district court asked Ford where he lived, where he was born, his

nationality, and why he wanted to represent himself. The Government provided a summary

of the anticipated facts, and the court replied that the case “should be pretty easy to try.”

J.A. 55. The district court then granted counsel’s motion to withdraw and allowed Ford to

proceed pro se.

A criminal defendant may waive his Sixth Amendment right to counsel “if the

waiver is (1) clear and unequivocal, (2) knowing, intelligent, and voluntary, and

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(3) timely.” United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013). On appeal, Ford

argues only that the district court failed to ensure his waiver was knowing, intelligent, and

voluntary.

Whether a defendant has made an intelligent waiver of the right to counsel depends

“upon the particular facts and circumstances” of the individual case. United States v.

Singleton, 107 F.3d 1091, 1097 (4th Cir. 1997) (internal quotation marks omitted); see

United States v. Roof, 10 F.4th 314, 359 (4th Cir. 2021) (“The Supreme Court has not

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

proceed without counsel.” (internal quotation marks omitted)). “The trial court must

simply ‘assure itself that the defendant knows the charges against him, the possible

punishment, and the manner in which an attorney can be of assistance.’” Herrington v.

Dotson, 99 F.4th 705, 717 (4th Cir. 2024) (quoting Roof, 10 F.4th at 359). That

determination “is made by examining the record as a whole and evaluating the

circumstances known to the trial court at the time.” Id. (internal quotation marks and

ellipses omitted).

The record demonstrates Ford was apprised of the charges against him, the potential

punishments, and the benefit of having an attorney. At Ford’s initial appearance, the

magistrate judge advised him of the charges and the range of potential punishments, and

Ford confirmed he understood both. Cf. Singleton, 107 F.3d at 1098 (finding defendant

was “adequately informed” of the charges and potential penalty at his arraignment). The

magistrate judge also informed Ford that he was entitled to an attorney at “every stage of

the proceeding.” J.A. 20. And at the hearing on defense counsel’s motion to withdraw,

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the district court “admonish[ed]” Ford that he “need[ed] legal skill to appear in a court.”

J.A. 53; cf. Singleton, 107 F.3d at 1098 (district court “advise[d] [defendant] that he should

think ‘long and hard’ before firing counsel, noting that counsel would be of assistance to

him”).

The circumstances known to the district court confirm that Ford made his decision

with eyes open. The Pretrial Services Report informed the court that Ford was 34 years

old, was a U.S. citizen, and had experience with the judicial process due to multiple prior

convictions. 2 Cf. Singleton, 107 F.3d at 1098 (assessing defendant’s “appreciation of the

judicial process”). Defense counsel advised the court that Ford also had elected to

represent himself on related attempted murder charges in state court. 3 Ford also

demonstrated some legal knowledge when he asked the district court, during the hearing,

whether he still had time to file pretrial motions. Cf. id. (“Singleton’s questions to the court

in exploring his choice regarding counsel demonstrated an active intelligence.”). And the

district court had determined that the case, which charged Ford with one count of

possessing a firearm as a felon, “should be pretty easy to try.” J.A. 55; cf. Singleton, 107

The record further reflects that Ford served in the Marine Corps and attended some
2

college, although it does not appear that the district court knew this information at the
hearing.

At the Government’s request, we take judicial notice of state court records showing
3

that Ford represented himself at trial in state court, resulting in a hung jury. See Motion
for Judicial Notice, ECF No. 60 (Sept. 17, 2024). After a retrial, a Nash County jury
convicted Ford of two counts of attempted first degree murder. Ford represented himself
with standby counsel. See Government 28(j) Letter, ECF No. 65 (Mar. 4, 2025).
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F.3d at 1093 (defendant represented himself at trial on “20 counts for a series of armed

robberies” committed on “four separate occasions”).

To be sure, the district court did not conduct a “searching or formal inquiry,” but

that is no ground for reversal. Singleton, 107 F.3d at 1097. Although we would “prefer[]

to have seen a more thorough colloquy,” the “record as a whole”—including Ford’s

background, history, and in-court statements—shows that Ford made his decision to waive

counsel knowingly, intelligently, and voluntarily. Id. at 1099. Finding no error, we affirm

Ford’s conviction. 4

III.

Next, Ford argues that the district court erred by discussing his sentence with the

prosecutor in his absence. Two days before Ford’s scheduled sentencing hearing, the

Government filed an emergency motion for a continuance because Deputy Toney—who

planned to attend the sentencing—was battling complications following surgery to remove

one of Ford’s bullets from his arm. The district court held a hearing on the motion the next

day without Ford, who was still pro se. During the hearing—which lasted four minutes—

the Government explained the situation and discussed possible dates to reschedule the

sentencing. In pressing the Government on whether a continuance was really necessary,

4
“[T]he standard of review is plain error when a represented defendant, whose
counsel is advocating for their client’s right to self representation, is allowed to proceed
pro se.” United States v. Taylor, No. 21-4601, 2024 WL 1045228, at *4 (4th Cir. Mar. 11,
2024); see Bernard, 708 F.3d at 588 n.7 (holding that counsel’s “failure to preserve the
claim of invalid waiver warrants plain error review”). The district court here did not err,
much less plainly err, in concluding that Ford’s waiver was knowing, intelligent, and
voluntary.
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the district court inquired about Ford’s sentencing exposure, and the following exchange

occurred:

MR. SINGH: . . . [S]o his guidelines go up to 360 to life.

THE COURT: But -- but the cap is ten years.

MR. SINGH: Correct. Correct. Correct. Yeah.

THE COURT: So he’s just gonna get the ten years.

MR. SINGH: Yeah.

THE COURT: Okay. You’re telling me that his guideline, if there was no
statutory cap, is 360 to life.

MR. SINGH: Correct.

THE COURT: But . . . he’s got a ten-year cap.

...

THE COURT: He’s got a -- so what -- where’s the mystery? I mean --

MR. SINGH: There’s no – there’s no mystery. I just -- I just want to -- I just
want to see if there’s any opportunity to ensure that the victim gets the chance
to allocute, but that’s it.

J.A. 165–166. The court granted the motion and postponed the sentencing hearing.

On appeal, the Government agrees with Ford that the district court violated Federal

Rule of Criminal Procedure 43 by discussing Ford’s sentence in the ex parte hearing. See

Fed. R. Crim. P. 43(a)(3) (“Unless [a rule] provides otherwise, the defendant must be

present at . . . sentencing.”). But the Government argues that Ford suffered no prejudice

from this error because he subsequently received the only remedy he requests: “a new

sentencing hearing.” Opening Br. 21. We agree.

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Following a Rule 43 violation, we typically vacate the sentence and remand for

resentencing, absent harmless error. Accepting Ford’s argument that the continuance

hearing was “tantamount to opening the sentencing hearing” without him present in

violation of Rule 43(a)(3), Opening Br. 20, the ordinary remedy would be resentencing in

front of the same judge. 5 See United States v. Rogers, 961 F.3d 291, 300 (4th Cir. 2020)

(remanding for resentencing based on Rule 43(a)(3) violation); United States v. Lawrence,

248 F.3d 300, 305–306 (4th Cir. 2001) (same).

Ford received that exact remedy, a “resentencing,” when the district court conducted

his rescheduled sentencing hearing one-and-a-half months later. Ford was present at the

sentencing hearing and voiced his objections to the PSR. And although the court discussed

Ford’s potential sentence at the continuance hearing, we reject Ford’s assertion that the

court “reached and announced the sentence” in that hearing. Opening Br. 20; cf. United

States v. Covington, 65 F.4th 726, 732 (4th Cir. 2023) (“[W]e will generally assume a

judge’s discussion of the appropriate term of imprisonment during the sentencing hearing

is tentative, not a final imposition of the sentence.”). At the rescheduled sentencing

hearing, the district court considered and ruled on Ford’s objections to the PSR before

imposing its sentence. We see “no reasonable possibility” that the court’s exchange with

the Government at the continuance hearing “might have contributed to” the ultimate

sentence the court imposed. United States v. Pratt, 351 F.3d 131, 138 (4th Cir. 2003)

5
We have ordered resentencing with a new judge where “the appearance of fairness
and impartiality is best advanced by reassignment,” United States v. McCall, 934 F.3d 380,
384–385 (4th Cir. 2019) (internal quotation marks omitted), but Ford has not requested this
relief.
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(internal quotation marks omitted). Because Ford has already received the relief he seeks,

we decline to disturb his sentence on this basis. 6

IV.

Lastly, Ford challenges the procedural reasonableness of his sentence. The PSR

calculated Ford’s base offense level as 33 based on a cross-reference to attempted murder.

Upward adjustments for the degree of injury inflicted on a law enforcement victim resulted

in a total offense level of 42, which carries a Guidelines range of 360 months to life

regardless of criminal history. The statutory maximum for Ford’s offense, however, was

120 months, so that became the Guidelines’ recommended sentence. See U.S.S.G.

§ 5G1.1(a).

At his sentencing hearing, Ford objected to his criminal history category and to the

attempted murder cross-reference. Regarding criminal history, the district court explained

that it made no difference because his Guidelines sentence would be 120 months

regardless. As for the cross-reference, the district court stated: “I’ll make a finding that

your exchange of gunfire at the sheriff’s department and the law enforcement officers was

an attempted murder as a matter of law, in fact.” J.A. 172. After Deputy Toney spoke, the

Government requested a 120-month sentence based on the seriousness of the offense

conduct, Ford’s criminal history, and Ford’s use of the same firearm in a different shooting

less than a month beforehand. The district court then announced the sentence:

6
To the extent Ford casts his argument in constitutional terms, our conclusion is the
same. Ford received the only remedy he seeks: a fresh sentencing hearing with all the
constitutional protections, which beyond doubt was not affected by the exchange at the
continuance hearing.
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All right. The total offense level is a category 42. As I said, that produces a
guideline range of 360 months to life imprisonment. The statutory
mandatory -- or the statutory maximum is 120 months, and so I’ll impose a
sentence of 120 months in the Bureau of Prisons or its authorized
representative, a term of three years of supervised release on the conditions
of supervision in force in this District, and a special assessment of a hundred
dollars.

J.A. 179–180.

On appeal, Ford contends that the district court (1) incorrectly calculated his base

offense level by applying the attempted murder cross-reference and (2) failed to discuss

the sentencing factors of 18 U.S.C. § 3553(a) when imposing his sentence. We address

each argument in turn.

In convictions for unlawful firearm possession, the Sentencing Guidelines permit a

district court to cross reference, or substitute, the base offense level for a different offense

the defendant committed in connection with the unlawful firearm possession, if the

resulting offense level is greater than would otherwise be determined. 7 U.S.S.G.

§ 2K2.1(c)(1)(A). A district court may cross reference a federal, state, or local offense,

regardless of whether a charge was brought, or a conviction obtained. Id. § 2K2.1 cmt.

n.14(C). The court need only find by a preponderance of the evidence that the defendant

committed the additional offense. See United States v. Slager, 912 F.3d 224, 232 (4th Cir.

2019). In reviewing whether a district court properly applied a sentencing cross-reference,

7
Ford’s assertion that the district court should have cross referenced assault
therefore fails, because the resulting base offense level would be less than would otherwise
be determined for his offense.
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“we review the district court’s legal conclusions de novo and its factual findings for clear

error.” Id. (internal quotation marks omitted).

Ford contends the district court didn’t make a finding about whether he committed

attempted murder and that the facts don’t support such a finding. Neither argument has

merit. First, the district court made a factual finding on the record. After receiving Ford’s

objection to the attempted murder cross-reference in the PSR, the court ruled on it, saying:

“I’ll make a finding that your exchange of gunfire at the sheriff’s department and the law

enforcement officers was an attempted murder as a matter of law, in fact.” J.A. 172.

Second, the law and the facts support that conclusion. Murder is the unlawful killing of

another with malice aforethought, which may be established by reckless and wanton

conduct. See 18 U.S.C. § 1111(a); United States v. Williams, 342 F.3d 350, 356 (4th Cir.

2003). Attempted murder requires a substantial step toward completion of the intended

crime. See United States v. Engle, 676 F.3d 405, 419–420, 423 (4th Cir. 2012). At trial

the district court heard evidence that Ford, without provocation, shot Deputy Toney three

times at close range around the trunk of his body, causing severe injuries, and that Ford

continued firing on Deputy Smith until he ran out of bullets. This evidence supports a

finding, by a preponderance, that Ford attempted to kill the deputies.

We turn last to Ford’s complaint that the district court did not mention the Section

3553(a) sentencing factors or explain the reasons for his sentence. We agree that was error.

But Ford has not identified any prejudicial effect on his sentence, so we must affirm.

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To preserve an objection to the adequacy of the district court’s sentencing

procedure, a defendant must at a minimum seek “a sentence different than the one

ultimately imposed.” United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010); see Fed.

R. Crim. P. 51(b). Where a defendant fails to do so and instead raises his objection for the

first time on appeal, we review only for plain error. Lynn, 592 F.3d at 579; see Fed. R.

Crim. P. 52(b). To succeed under this rigorous standard, a defendant must show (1) an

error, (2) that is clear or obvious, (3) that “affected the outcome of the district court

proceedings,” and (4) that “seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal

quotation marks and brackets omitted). In the sentencing context, the third prong requires

showing that, “absent the error, a different sentence might have been imposed.” United

States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010); see Lynn, 592 F.3d at 580 & n.5.

The first two prongs are satisfied: the district court’s failure to explain the selected

sentence was an obvious error. When rendering a sentence, the district court must “apply

the relevant § 3553(a) factors to the specific circumstances of the case” and “‘state in open

court’ the particular reasons supporting its chosen sentence.” United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (quoting 18 U.S.C. § 3553(c)). The district court here “failed

to explain how the § 3553(a) factors support the sentence” or “provide any sentencing

rationale at all.” United States v. Provance, 944 F.3d 213, 219 (4th Cir. 2019); see also

United States v. Myles, 805 Fed. App. 184, 189–190 (4th Cir. 2020). That was plain error.

However, Ford “did not argue for a sentence different than the within-Guidelines

sentence [he] ultimately received” and so failed to preserve his objection to the district

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court’s sentencing explanation. Lynn, 592 F.3d at 580. Although Ford lodged two

objections to the PSR, the district court addressed them both, and neither would have

reduced his Guidelines range below the 120-month statutory maximum. Importantly, Ford

“did not ask the court to depart from the correctly calculated Guidelines range” based on

considerations pertinent to the Section 3553(a) factors (or any ground at all). Id. He

therefore must show that the district court’s “lack of explanation ‘had a prejudicial effect

on the sentence imposed.’” United States v. Powell, 650 F.3d 388, 396 (4th Cir. 2011)

(quoting Lynn, 592 F.3d at 580).

Ford has not made the required showing. He “received a within-Guidelines sentence

that we presume on appeal was reasonable.” Id. at 395 (finding that sentencing explanation

error did not affect substantial rights); see also Hernandez, 603 F.3d at 273 (same); Lynn,

592 F.3d at 580 (same). In the district court and again on appeal, he identified no reasons

for a sentence below 120 months. Moreover, the 120-month sentence Ford received was a

dramatic reduction from the Guidelines range his conduct actually earned, which was 360

months to life. Ford has not shown, or even tried to show, that additional explanation by

the district court in these circumstances might have resulted in an even lower sentence. See

Hernandez, 603 F.3d at 273; cf. United States v. Boulware, 604 F.3d 832, 840 (4th Cir.

2010) (finding a preserved sentencing explanation error harmless in part because “the

notion that having to explain its analysis further might have changed the district court’s

mind” was “simply unrealistic” and a remand for resentencing would have been “a

pointless waste of resources”). Accordingly, we cannot conclude that the district court’s

inadequate explanation had a prejudicial effect on the ultimate sentence imposed.

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* * *

For the foregoing reasons, Ford’s conviction and sentence are

AFFIRMED.

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DEANDREA GIST BENJAMIN, Circuit Judge, concurring in part and in the judgment:

I agree that the district court’s Rule 43 violation was harmless error 1 and that its

sentencing error did not “affect[] the outcome of the district court proceedings.” Maj. Op.

at 8–9, 12–13. But I do not agree that its Rule 11 colloquy was error-free. Id. at 6–7.

It is true that both here and in United States v. Singleton, 107 F.3d 1091 (4th Cir.

1997), the court gave a single sentence admonition about the legal skill required to appear

in court. See 107 F.3d at 1098; Maj. Op. at 5–6; J.A. 53. In Singleton, the judge warned

the defendant to think “long and hard” before waiving counsel. 107 F.3d at 1094. The

defendant did not think long: he spoke briefly with counsel before quickly announcing he

still wished to fire his attorney. Id. But that exchange was not the whole story. The court

in Singleton had engaged the defendant in an extended colloquy regarding the difficulties

of proceeding pro se. The trial judge had responded to the defendant’s extensive questions

about participation in cross-examination and closing arguments, whether he himself would

be able to object, and whether counsel might “advise [him] on technicalities.” See id. &

n.5.

1
Though I agree that there is “ ‘no reasonable possibility’ that the court’s exchange
with the Government at the continuance hearing ‘might have contributed to’ the ultimate
sentence the court imposed,” Maj. Op. at 9 (quoting United States v. Pratt, 351 F.3d 131,
138 (4th Cir. 2003)), I disagree with the majority’s characterization of the January 4
hearing as a “resentencing.” Resentencing is a remedy—a “means of . . . redressing a
wrong.” Remedy, Black’s Law Dictionary (12th ed. 2024). The majority’s framing of the
January 4 sentencing as a “resentencing” implies that the district court recognized that its
ex parte conversation with the Government was error and, through the January 4 hearing,
sought to redress that error. That is not what happened here. On January 4, the district
court simply conducted its sentencing hearing as expected.
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These questions “proposing subtly differing options to use counsel during his own

defense, le[ft] no doubt that he understood that a trained attorney’s specialized knowledge

would be valuable to his defense.” Id. at 1098. And before allowing the defendant to make

a “final decision” on discharging his counsel, the court listed the ways counsel might assist

him, including calling and questioning witnesses, and warned the defendant that if he

waived his right to counsel, he would “be held to the same rules [of evidence and

procedure] as [counsel] would be held” without the benefit of counsel’s advice. Id. at 1094,

1098.

Here, the district court stated, as relevant and in full, “I’d admonish you that you

need legal skill to appear in court.” J.A. 53. But the court did not supplement its initial

warning before allowing Ford to proceed pro se. J.A. 53–55. As the majority notes, Ford

asked the court whether he still had time to file pretrial motions. Maj. Op. at 6. But the

majority neglects to mention that Ford asked his question about pretrial motions after the

court had allowed him to waive representation by counsel. See J.A. 56–57. Unlike

Singleton’s nuanced questions of his counsel’s role, Ford asked no questions which

indicated he understood the specific role or advantages of representation by counsel at trial.

Ford’s sole question about pretrial motions cannot demonstrate that he “understood

that a trained attorney’s specialized knowledge would be valuable to his defense” before

waiving his right to counsel. See Singleton, 107 F.3d at 1098. And a single question about

pretrial motions after his attorney had been released could not have “explor[ed] his choice

regarding counsel [thereby] demonstrat[ing] an active intelligence”—a choice that Ford

had already been allowed to make. See id.; J.A. 55–56. The fact that “Ford also had elected

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to represent himself on related attempted murder charges in state court” does not alter the

analysis. Maj. Op. at 6. Allowing waivers in external proceedings to remedy the

deficiencies of his waiver in this case would allow trial judges to abdicate “the serious and

weighty responsibility . . . of determining whether there is an intelligent and competent

waiver.” See Johnson v. Zerbst, 304 U.S. 458, 465 (1938).

A comparison to Singleton therefore compels the conclusion that Ford’s waiver was

not knowingly and intelligently made. But in view of the flexible standard, United States

v. Roof, 10 F.4th 314, 359 (4th Cir. 2021) (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004))

(“The Supreme Court has not ‘prescribed any formula or script to be read to a defendant

who states that he elects to proceed without counsel.’ ”), and the similarities between this

case and Singleton, the district court’s error was not “clear” or “obvious.” See United

States v. Olano, 507 U.S. 725, 734 (1993). So Ford cannot establish that the district court’s

error was plain, and his challenge cannot succeed. See id.

Because the district court’s errors do not move the needle on the outcome of this

case, 2 I agree that affirmance is proper.

2
This is equally true of Ford’s sentencing challenge. As the majority observes,
“Ford has not shown, or even tried to show” that he would have received less than his 120-
month sentence, which was already “a dramatic reduction from the Guidelines range his
conduct actually earned.” Maj. Op. at 14.
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