Sentencing-Stage Faretta Waivers in the Third Circuit: Peppers Topics Must Be Fully Explored and Penalty/Guidelines Advice Must Be Accurate

1. Introduction

United States v. Marcellas Hoffman a/k/a Moe (No. 23-2098) is a Third Circuit decision reviewing a third resentencing that followed two earlier resentencings and multiple changes in governing law. Hoffman—convicted in 2003 of drug, robbery, and firearms offenses—had already obtained significant sentencing relief after United States v. Booker, 543 U.S. 220 (2005), and later after United States v. Davis, 588 U.S. 445 (2019), which prompted vacatur of one of his § 924(c) convictions.

The appeal centered on the Sixth Amendment right to counsel at sentencing and the conditions under which a defendant may waive counsel and proceed pro se. Two issues were presented:

  • Whether the District Court violated the Sixth Amendment by allowing Hoffman to represent himself at his 2023 resentencing without a renewed waiver colloquy; and
  • Whether the 2021 waiver colloquy (conducted before Hoffman's second resentencing) was sufficient to establish a knowing and intelligent waiver for self-representation at sentencing.

The panel majority vacated the 2023 sentence and remanded, holding that the 2021 colloquy was constitutionally deficient under Third Circuit waiver-of-counsel doctrine for sentencing proceedings. Judge Phipps dissented, advocating a broader “totality of the circumstances” approach drawn from Supreme Court precedent.

2. Summary of the Opinion

The Third Circuit held that Hoffman’s waiver of counsel in 2021 was not knowing and intelligent because the District Court did not adequately ensure he understood: (1) the nature of the charges; (2) the role of the Sentencing Guidelines; and (3) the full and accurate range of possible penalties. The court emphasized that sentencing is a critical stage and that the waiver inquiry is not relaxed at sentencing.

Because an erroneous self-representation determination is treated as structural error, the panel vacated the sentence and remanded for a proper colloquy and resentencing.

3. Analysis

A. Precedents Cited

1) The constitutional foundation: Faretta and “eyes open” waiver

The majority rooted the waiver requirement in Faretta v. California, 422 U.S. 806 (1975), quoting its command that a defendant must be “made aware of the dangers and disadvantages of self-representation” so that the record shows the choice is made “with eyes open.” Faretta itself borrowed this phrasing from Adams v. United States ex rel. McCann, 317 U.S. 269 (1942), reinforcing that waiver is not a formality but a substantive, record-based assurance.

2) Third Circuit’s structured inquiry: United States v. Peppers and its model colloquy

The centerpiece was United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), which defines three prerequisites for permitting self-representation and—critically here—details a model set of colloquy questions. The majority treated those topics as mandatory “subjects” to be “fully explored” where relevant, even if no verbatim script is required.

The relevant model questions highlighted by the majority (Nos. 3–6) require the court to confirm, on the record, that the defendant understands:

  • the crimes charged;
  • that the U.S. Sentencing Commission Guidelines will be used in determining the sentence;
  • the per-count assessments and maximum penalties; and
  • that sentences may be consecutive.

The majority’s analysis functioned as an application of Peppers to sentencing-stage waivers: if these subjects are not addressed with adequate clarity and accuracy, the waiver fails.

3) Sentencing is not a reduced-protection stage: United States v. Salemo and United States v. Welty

The opinion stressed that the waiver burden is not lower at sentencing, citing United States v. Salemo, 61 F.3d 214 (3d Cir. 1995), which describes sentencing as “critical and often times complicated,” and requiring a “searching inquiry” to ensure a waiver is “understanding and voluntary.” Salemo in turn quoted United States v. Welty, 674 F.2d 185 (3d Cir. 1982), for the proposition that a waiver is effective only after a sufficiently penetrating inquiry.

4) Presumption against waiver, full exploration requirement, and limited tolerance for “whole record” review

Several Third Circuit cases were used to reinforce the court’s methodology:

  • United States v. Jones, 452 F.3d 223 (3d Cir. 2006): provides the operative standard for “knowing, intelligent, and voluntary” waivers; insists the Peppers subjects be “fully explored” where relevant; and emphasizes a preference for an on-the-record colloquy rather than inferring understanding from the broader record. The majority also cited Buhl v. Cooksey, 233 F.3d 783 (3d Cir. 2000), through Jones, for the principle that courts “must indulge every reasonable presumption against a waiver of counsel.”
  • United States v. Stubbs, 281 F.3d 109 (3d Cir. 2002): supplies the standard of review—plenary review of the legal conclusion that a waiver was knowing and intelligent.
  • United States v. Booker, 684 F.3d 421 (3d Cir. 2012): used to reject the Government’s “harmlessness/minor misinformation” argument and to underscore the district court’s burden to ensure adequate knowledge before rights are relinquished; also quoted for the insistence on a “complete, on-the-record colloquy.”

5) The narrow “extraordinary circumstances” carveout: United States v. McFadden

The Government sought to rely on Hoffman’s demonstrated experience and earlier statements, but the majority held that such factors do not excuse the district court’s colloquy obligation. It acknowledged that the Third Circuit has, on limited occasions, looked beyond the colloquy, citing United States v. McFadden, 630 F.2d 963 (3d Cir. 1980), but found Hoffman’s situation not extraordinary enough to justify that departure.

6) The resentencing posture and preserved issues: United States v. Miller

The panel also addressed waiver/forfeiture concerns: although Hoffman challenged the 2021 colloquy for the first time during the appeal from his 2023 sentence, the court held the issue was not forfeited, citing United States v. Miller, 594 F.3d 172 (3d Cir. 2010), which allows certain previously waived issues to be raised at a de novo resentencing.

7) The broader sentencing history: Davis and Alleyne as catalysts for resentencing

Although not directly part of the Sixth Amendment colloquy rule, the sentencing context mattered:

  • United States v. Davis, 588 U.S. 445 (2019), enabled Hoffman’s successive § 2255 challenge by undermining certain “crime of violence” predicates for § 924(c), leading to vacatur of Count Five and a resentencing on remaining counts.
  • Alleyne v. United States, 570 U.S. 99 (2013), drove the remand after the 2021 resentencing because the District Court imposed a ten-year mandatory minimum under § 924(c)’s “discharge” provision without a jury finding of discharge. The panel’s earlier nonprecedential remand decision, United States v. Hoffman, No. 21-2178, 2023 WL 1775654 (3d Cir. Feb. 6, 2023) (Hoffman III), established the predicate for the third resentencing.

8) The dissent’s Supreme Court-oriented framework: Iowa v. Tovar and “totality of circumstances”

Judge Phipps’s dissent argued that Supreme Court law does not require a rigid script and instead evaluates waiver based on the “totality of the circumstances,” citing Iowa v. Tovar, 541 U.S. 77 (2004), and the general waiver standard from Johnson v. Zerbst, 304 U.S. 458 (1938). The dissent also cited Indiana v. Edwards, 554 U.S. 164 (2008), and Godinez v. Moran, 509 U.S. 389 (1993), to distinguish competencies relevant to trial participation and waiver.

B. Legal Reasoning

1) The doctrinal test applied

The majority applied the Peppers framework: before allowing self-representation the district court must ensure the defendant (1) clearly and unequivocally requests to proceed pro se; (2) understands the nature of the charges, the punishment range, defenses, technical problems, and other risk-related facts; and (3) is competent. Only the second element was disputed on appeal.

2) Why the 2021 colloquy failed under Third Circuit requirements

The court identified multiple deficiencies that, cumulatively and independently, prevented a finding that Hoffman’s waiver was knowing and intelligent:

  • No confirmation that Hoffman understood the charges (departure from Peppers Question #3): the District Court said the crimes were “very serious” and asked the prosecutor to list counts, but did not ask Hoffman whether he understood what those crimes were.
  • No on-the-record inquiry about the Sentencing Guidelines (skipping Peppers Question #4): even though Hoffman wrote he was “very familiar” with the Guidelines, the majority held that out-of-colloquy statements do not discharge the court’s duty to ensure understanding at the moment of waiver.
  • Inadequate and inaccurate penalty advice (defects in the Peppers Question #5/#6 subjects): the court did not confirm Hoffman’s understanding count-by-count and delegated recital of maximums to counsel. It also failed to provide fine information. Critically, the colloquy contained mistakes, including:
    • The court’s statement that all counts “can be ordered to be served consecutively,” when Count Three’s § 924(c) sentence was required to be consecutive to all other counts (18 U.S.C. § 924(c)(1)(D)(ii)).
    • Counsel’s incorrect statement (uncorrected by the court) that Count Three carried “ten years minimum,” later shown wrong under Alleyne as applied in Hoffman III (the jury did not find “discharge,” so the mandatory minimum was five years).
    • Counsel’s incorrect statement (uncorrected by the court) that supervised release on Counts One and Two was “at least five years,” when it was eight years.
    The majority treated these as constitutionally significant because waiver depends on a realistic appreciation of sentencing exposure and sentencing structure.

3) Rejection of the Government’s “he knew enough anyway” arguments

The Government argued that Hoffman’s long experience, familiarity, and the fact that he had previously received a life-plus sentence meant he understood the risks. The majority rejected that approach as inconsistent with the Third Circuit’s strong preference for an explicit colloquy and its reluctance—outside rare cases—to “divine” knowledge from the full record. It also rejected the idea that misinformation was “minor” or harmless, relying on United States v. Booker, 684 F.3d 421 (3d Cir. 2012), to reiterate that the burden rests on the district court to ensure the waiver is properly informed.

4) Structural error drives the remedy

Citing Peppers, the majority reiterated that error in assessing whether a defendant may represent himself is structural and “can never be harmless.” That characterization explains the automatic remedy: vacatur of the sentence and remand for a proper colloquy and resentencing, rather than an inquiry into prejudice.

C. Impact

1) Practical implications for district courts at sentencing and resentencing

Even though the disposition is labeled “NOT PRECEDENTIAL,” it concretely signals how the Third Circuit will scrutinize sentencing-stage Faretta waivers:

  • Sentencing is a “critical and often times complicated” stage, and courts must conduct a searching inquiry comparable in rigor to trial-stage waivers.
  • Delegating key topics to counsel is risky: the judge must ensure completeness and correctness on the record. Reliance on counsel’s recitation becomes especially problematic when counsel misspeaks and the judge does not correct it.
  • Accuracy about mandatory minimums, supervised release, and consecutiveness matters, because those features shape the real-world consequences of self-representation and the defendant’s decision calculus.
  • Guidelines comprehension is not assumed, even if the defendant professes familiarity elsewhere; the court must address the Guidelines explicitly during the colloquy.

2) Likely litigation consequences

Defendants who proceed pro se at sentencing in the Third Circuit may find increased appellate traction in challenging waivers where any of the Peppers subjects were not meaningfully covered. Conversely, prosecutors may press district courts to use the Peppers framework as a checklist to protect the sentence from structural reversal.

3) Tension highlighted by the dissent

Judge Phipps’s dissent frames an ongoing jurisprudential tension: the majority’s approach reflects the Third Circuit’s comparatively strict, colloquy-centered method, while many circuits and Supreme Court formulations emphasize the “totality of the circumstances” and disfavor rigid scripts. Future Third Circuit cases could further clarify whether, and when, whole-record analysis should be more available—especially for sophisticated repeat litigants at resentencing.

4. Complex Concepts Simplified

  • Proceeding “pro se”: representing yourself without a lawyer.
  • Waiver of counsel: giving up the Sixth Amendment right to a lawyer. The court must ensure the waiver is knowing, intelligent, and voluntary.
  • Faretta colloquy: the judge’s on-the-record questions and warnings meant to ensure a defendant understands the risks of self-representation.
  • Sentencing Guidelines: advisory rules produced by the U.S. Sentencing Commission that help determine the recommended sentencing range; they can be technical and highly consequential at sentencing.
  • Mandatory minimum: a minimum prison term that must be imposed if legal prerequisites are met (often dependent on specific facts the jury must find after Alleyne v. United States).
  • Consecutive sentence: a term that must be served “one after another,” not at the same time as other terms. Section 924(c) sentences often must be consecutive by statute.
  • Supervised release: a period of monitoring after prison; it is part of the punishment and can carry additional restrictions and consequences for violations.
  • Structural error: a fundamental constitutional error that triggers automatic reversal (no harmless-error analysis), because it undermines the framework of the proceeding.

5. Conclusion

The decision vacating Hoffman’s sentence turns on a clear principle in Third Circuit Sixth Amendment doctrine: before permitting self-representation at sentencing, the district court must conduct a searching, on-the-record inquiry that fully explores the Peppers subjects relevant to informed waiver—especially the defendant’s understanding of the charges, the Sentencing Guidelines, and the accurate range and structure of penalties (including mandatory minimums, supervised release, and consecutive sentencing rules).

By refusing to treat experience, confidence, or off-record statements as substitutes for a complete colloquy—and by treating defects as structural—the panel reinforced that the right to counsel is protected through process: a record that demonstrates the defendant truly chose self-representation “with eyes open.”