United States v. Oscar Collado-Rivera ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0577n.06
No. 19-3638
UNITED STATES COURT OF APPEALS
FILED
Oct 08, 2020
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE
) SOUTHERN DISTRICT OF
OSCAR COLLADO-RIVERA, ) OHIO
)
Defendant-Appellant. ) OPINION
BEFORE: ROGERS, SUTTON, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. This case reviews the district court’s decision
following our previous remand of Defendant Oscar Collado-Rivera’s motion for substitution of
counsel. Collado-Rivera appeals the denial on remand of his attorney’s second motion for
substitution of counsel—the motion filed post-trial and pre-sentencing. We remanded the district
court’s denial of the pre-sentencing motion with instructions to conduct the analysis required by
United States v. Mack, 258 F.3d 548 (6th Cir. 2001). United States v. Collado-Rivera, 759 F.
App’x 455, 466–67 (6th Cir. 2019). The district court conducted a hearing and again found that
there was not good cause for substitution of counsel for the sentencing hearing. Because the
district court correctly applied Mack and did not abuse its discretion in determining that Collado-
Rivera did not experience a complete breakdown in communication with his counsel, we
AFFIRM.
No. 19-3638, United States v. Collado-Rivera
I. BACKGROUND
The background of this dispute was set out in our previous decision. Over two months
before Collado-Rivera’s trial, defense counsel filed a motion to withdraw, explaining that Collado-
Rivera had “asked that he withdraw and that new counsel be appointed under the Criminal Justice
Act.” Id. at 458–59. The district court held a hearing and allowed Collado-Rivera to discuss his
concerns about his attorney. Collado-Rivera “explained that: (1) he disagreed with his counsel’s
strategic choices; (2) he had not received certain discovery; (3) he was frustrated by the
continuances in the case; (4) he felt that his counsel disrespected [his girlfriend]; (5) his counsel
was angry with him for seeking additional counsel; and (6) his counsel expressed frustration with
him when explaining certain legal concepts.” Id. at 459. Defense counsel also addressed the court
about the issues raised. Ultimately, the district court directed Collado-Rivera to confer with his
attorney after which the court would reconsider a change of counsel if necessary; instead, Collado-
Rivera “proceeded to trial without renewing his request for new counsel.” Id. The jury convicted
him of conspiracy to possess with intent to distribute more than five kilograms of cocaine. Id.
Prior to sentencing, defense counsel filed another motion to withdraw, again at the direction
of Collado-Rivera. Id. The district court summarily denied the motion at the sentencing hearing.
Id. When Collado-Rivera objected, the “district court summarily declined to consider that
objection.” Id.
On appeal, we applied the analysis laid out in Mack; determined that the district court’s
inquiry was adequate; concluded that there had not been “a complete breakdown in Collado-
Rivera’s relationship with his attorney”; and affirmed the district court’s denial of the pre-trial
motion to substitute counsel. Id. at 464–65. We concluded, however, that the district court abused
its discretion when it summarily denied the second, pre-sentencing motion to substitute counsel.
Id. at 466. We held that Collado-Rivera’s motion was timely, but determined that the district
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No. 19-3638, United States v. Collado-Rivera
court’s analysis was inadequate and failed to inquire into whether there had been a complete
breakdown in the attorney-client relationship prior to sentencing. Id. We also concluded that the
balancing between these factors and the public’s interest in the timely administration of justice
was neutral. Id. We remanded with instructions for the district court to hold a hearing to determine
“whether, at the time of sentencing, there was good cause for substitution of counsel.” Id. at 467.
If so, Collado-Rivera should be resentenced; if not, there would be no need for resentencing. Id.
On remand, the district court conducted a hearing, and allowed Collado-Rivera ample time
to discuss his concerns about his attorney. Collado-Rivera’s testimony revealed that most of the
conflict with his attorney centered around the decision not to call several witnesses at trial and at
sentencing that Collado-Rivera thought would be useful in disputing the Government’s obstruction
and perjury enhancement, and the fact that his attorney did not want to file his objections to his
pre-sentence investigation. The district court also allowed counsel time to respond to the
complaints and to explain his strategic choices not to call witnesses which he had concluded were
not helpful or would be harmful, and not to object to those matters in the pre-sentencing report that
he thought would have no effect on the sentence.
Collado-Rivera explained that he had spoken to counsel via video conference before
sentencing on May 24, 2017, and talked to him about calling witnesses at sentencing, both to
dispute the Government’s perjury and obstruction enhancement and to raise other objections to the
pre-sentence report. When counsel rebuffed Collado-Rivera’s request and told him to present his
objections himself, Collado-Rivera told counsel to withdraw. Defense counsel then filed
objections to the pre-sentencing investigation report—without Collado-Rivera’s additional
objections—and a motion to withdraw. Counsel and client did not speak again until the morning
of the sentencing on July 20, 2017.
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No. 19-3638, United States v. Collado-Rivera
At the close of the hearing, the district court affirmed its earlier decision to deny the motion.
It then issued an opinion recounting the testimony at the hearing and setting out its reasoning. The
court explained that Collado-Rivera was allowed to address all his concerns about counsel and that
Defendant talked “at length about his substantive issues with defense counsel’s performance and
issues that related to trial, even though those issues were not directly pertinent.” (R.455 at PageID
2313–14) The district court concluded that Collado-Rivera and his counsel had strategic
disagreements, but those disagreements did not amount to a complete breakdown in
communication. The court explained that Collado-Rivera and his defense lawyer had
communicated throughout sentencing, beginning with a video conference on May 24, 2017 to
discuss the pre-sentencing report. The two also spoke on the morning of the sentencing on July
20, 2017. Collado-Rivera had additional objections that the defense lawyer did not present to the
court, but the court provided Collado-Rivera the opportunity to present them himself. Defense
counsel indicated that he had not been told with any specificity about Collado-Rivera’s additional
objections, but the district court concluded that this was because the two had already discussed the
sentencing strategy. And the district court noted that Collado-Rivera and defense counsel
continued to speak at the hearing.
The district court found that “[t]here has never been a time where it appeared Defendant
discontinued consulting with his attorney, even through the conclusion of the July 1, 2019
hearing.” (Id. at PageID 2316) Applying the Mack factors to the record of the hearing on remand,
the district court concluded that “there was not good cause for substituting counsel for purposes of
sentencing.” (Id. at PageID 2317) This appeal followed.
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No. 19-3638, United States v. Collado-Rivera
II. ANALYSIS
A. Standard of Review
We review a district court’s denial of an indigent defendant’s motion to substitute counsel
for abuse of discretion. United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007).
B. Discussion
The Sixth Amendment provides a criminal defendant with the right to counsel. U.S. CONST.
AMEND. VI. However, “[a]n indigent defendant has no right to have a particular attorney represent
him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” United States
v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). In reviewing whether a district court has abused its
discretion in denying a motion to substitute counsel, we consider: “(1) the timeliness of the motion,
(2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict between the
attorney and client and whether it was so great that it resulted in a total lack of communication
preventing an adequate defense, and (4) the balancing of these factors with the public’s interest in
the prompt and efficient administration of justice.” Mack, 258 F.3d at 556. In particular, the district
court must “inquire into the source and nature of the conflict” that the defendant articulates. United
States v. Powell, 847 F.3d 760, 778–79 (6th Cir. 2017).
This court has already determined, and the parties do not dispute, that the motion for
substitution of counsel was timely. Collado-Rivera, 759 F. App’x at 466. Similarly, this court
found, and there is no dispute, that the fourth factor of the Mack analysis was neutral. Id. We
therefore review the second and third Mack factors: the adequacy of the district court’s inquiry
into the motion, and the extent of the conflict between Collado-Rivera and his attorney.
For a district court’s inquiry into the relationship between defendant and attorney to be
considered adequate, “the district court simply must allow a defendant the opportunity to explain
the attorney-client conflict as he perceives it.” United States v. Marrero, 651 F.3d 453, 465 (6th
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No. 19-3638, United States v. Collado-Rivera
Cir. 2011). We previously determined that a district court sufficiently inquired into the matter
when it “engaged in multiple lengthy discussions with [the defendant and his lawyer] that span
many transcript pages regarding their alleged conflicts.” United States v. Vasquez, 560 F.3d 461,
467 (6th Cir. 2009). When the district court allows the defendant, defense counsel, and the
prosecutor “the opportunity to address the complaint at issue” and allows “all of the interested
parties to present their respective evidence and arguments,” the inquiry is adequate. United States
v. Saldivar-Trujillo, 380 F.3d 274, 278 (6th Cir. 2004).
The discussion between Collado-Rivera, his attorney, and the prosecutor spans 34
transcript pages, and the district court allowed Collado-Rivera wide latitude to discuss the issues
he was having with his attorney, whether they were directly related to sentencing or were
background information concerning events leading up to trial. On multiple occasions, moreover,
the court directed the attorney to respond to the complaints Collado-Rivera was making and
counsel fully did so. The hearing record reveals that the district court’s inquiry into the nature of
the attorney-client relationship was adequate.
We turn next to the nature of the attorney-client relationship between Collado-Rivera and
counsel. It is clear that “a defendant’s differences of opinions with his attorney do not create a
complete breakdown of communication that compromises his defense.” Marrero, 651 F.3d at 466.
A defendant’s “dissatisfaction with the responses he got from his lawyer, not with the lack of
opportunity or his inability to talk to his lawyer or contact his lawyer” does not constitute a
complete breakdown in communication. Saldivar-Trujillo, 380 F.3d at 278 (cleaned up).
The hearing on remand demonstrated that Collado-Rivera had spoken to his attorney on
May 24, 2017, about the potential for calling witnesses at the sentencing hearing. The two also
discussed the attorney’s memorandum in response to the pre-sentence report and additional
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No. 19-3638, United States v. Collado-Rivera
objections that Collado-Rivera wanted to file. The attorney refused to file the additional
objections. The two next communicated on July 20, 2017, the date of the sentencing. Collado-
Rivera’s lawyer stated at the hearing on remand that he would file a notice of appeal if asked. The
district court correctly concluded that though this evidenced a set of strategic disagreements, it did
not constitute a complete breakdown of communication.
Collado-Rivera asserts that he was prejudiced by the failure of the district court to allow
him to substitute counsel for the sentencing hearing because he was unable to call witnesses that
would refute facts established at trial. But as the district court noted in the hearing, Collado-
Rivera’s sentence was well below guidelines range. It is far from clear that pursuing his alternative
strategy would have resulted in a lower sentence. In any event, prejudice to the defendant is not
an element of the analysis for the review of a motion to substitute counsel under Mack, and the
argument on that point is better suited for review under 28 U.S.C. § 2255.
III. CONCLUSION
Because we find that the district court correctly applied Mack and did not abuse its
discretion in determining that Collado-Rivera did not experience a complete breakdown in
communication with his counsel, we AFFIRM.
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