Case: 15-10224       Date Filed: 04/25/2016       Page: 1 of 11


                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-10224
                               ________________________

                      D.C. Docket No. 1:13-cr-00229-ODE-JSA-1



UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                             versus

GABRIEL JIMENEZ-ANTUNEZ,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                       (April 25, 2016)

Before WILLIAM PRYOR, BLACK, and PARKER, * Circuit Judges.

WILLIAM PRYOR, Circuit Judge:




* Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
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      This appeal presents a question of first impression in this Circuit: whether a

criminal defendant must show good cause to dismiss retained counsel if the

defendant intends to seek appointed counsel. Gabriel Jimenez-Antunez pleaded

guilty to conspiracy to distribute methamphetamine and conspiracy to commit

money laundering. Weeks before his sentencing hearing, Jimenez-Antunez sent a

letter to his retained counsel expressing an intent to dismiss him. His retained

counsel then moved to withdraw and stated that his client would request appointed

counsel. The district court denied the motion on the ground that Jimenez-Antunez

had been afforded effective assistance of counsel by his retained counsel. Because

a criminal defendant need not show good cause to dismiss retained counsel, we

vacate and remand for further proceedings.

                                I. BACKGROUND

      Gabriel Jimenez-Antunez was one of several drug distributors for a Mexican

drug supplier known as “Chato.” Couriers transported the drugs to the United

States and delivered them to Jimenez-Antunez and other drug traffickers. Chato

directed Jimenez-Antunez to deposit proceeds of the drug sales into several bank

accounts. Agents of the Drug Enforcement Administration arrested Jimenez-

Antunez on May 12, 2013, and a magistrate judge appointed a federal defender to

represent him for his initial appearance. The magistrate judge later appointed a

panel attorney under the Criminal Justice Act to represent Jimenez-Antunez. On

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June 4, a federal grand jury indicted Jimenez-Antunez for conspiracy to distribute

and possess with the intent to distribute 500 grams of methamphetamine, 21 U.S.C.

§§ 846, 841(a)(1), 841(b)(1)(A); possession of 500 grams of methamphetamine

with intent to distribute, id. § 841(a)(1), 841(b)(1)(A); conspiracy to commit

money laundering, 18 U.S.C. §§ 1956(a)(1)(B), 1956(h); and illegal reentry after

deportation, 8 U.S.C. § 1326(a).

      After the grand jury returned the indictment, Ash Joshi entered a notice of

appearance as retained counsel for Jimenez-Antunez. With Joshi’s assistance,

Jimenez-Antunez negotiated a plea agreement with the government and pleaded

guilty to the two conspiracy charges. On October 24, 2014, Jimenez-Antunez sent

a letter to Joshi asking him to withdraw as counsel. He wrote, “I do not want your

services anymore, and I do not want you to represent me anymore; so the Judge

can appoint another counsel for me, and so the Judge may know my reasons and

my motives why I am asking for this change.” On November 3, 2014, Joshi moved

to withdraw as defense counsel and stated, “Counsel anticipates that Defendant

will request that an attorney be appointed to represent him.” At the time, Jimenez-

Antunez’s sentencing hearing was scheduled for January 6, 2015.

      Jimenez-Antunez’s sentencing was rescheduled for December 16, 2014, and,

at the start of that hearing, the district court reviewed Joshi’s motion to withdraw.

Joshi stated that he and Jimenez-Antunez had disagreements and that Jimenez-

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Antunez felt that Joshi had coerced him into pleading guilty. Jimenez-Antunez

stated that Joshi did not let him speak and did not explain certain matters to him.

He felt that Joshi had threatened him by telling him that he would be sentenced to

30 years if he did not plead guilty. He stated that Joshi did not visit him often, that

he hadn’t visited him in six months, and that Joshi did not respond to his family.

Joshi doubted that it had been six months since his last visit.

      The district court stated that it suspected Jimenez-Antunez was disappointed

with the guideline range calculated in the presentence investigation report. The

district court stated that there was no evidence that Joshi had actually coerced

Jimenez-Antunez into pleading guilty and that the judge who had conducted the

plea hearing had informed Jimenez-Antunez of the nature of the proceedings. The

district court reasoned that Joshi must have visited Jimenez-Antunez within the last

six months because Joshi had stated that he had reviewed the presentence

investigation report with Jimenez-Antunez and the report was prepared in

September, three months before. The district court concluded that Joshi “ha[d]

been afforded effective counsel” and denied the motion. The district court then

held a sentencing hearing and sentenced Jimenez-Antunez to 300 months and 240

months of imprisonment to be served concurrently.




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                           II. STANDARD OF REVIEW

      “We review the denial of a motion to withdraw as counsel for abuse of

discretion.” Brown v. United States, 720 F.3d 1316, 1325 (11th Cir. 2013). “A

district court abuses its discretion if it applies an incorrect legal standard, applies

the law in an unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly erroneous.”

United States v. Toll, 804 F.3d 1344, 1353 (11th Cir. 2015) (quoting Citizens for

Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216–17 (11th

Cir. 2009)).

                                  III. DISCUSSION

      Under the Sixth Amendment, “a defendant who does not require appointed

counsel” enjoys both the right to effective assistance of counsel and the right “to

choose who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140,

144, 147 (2006). “The right to select counsel of one’s choice . . . has been regarded

as the root meaning of the constitutional guarantee.” Id. at 147–48. A defendant

may substitute a retained or appointed counsel with retained counsel “regardless of

the quality of the representation he received.” Id. at 148. The right to counsel of

choice is “not absolute” but “must bend before countervailing interests involving

effective administration of the courts.” Birt v. Montgomery, 725 F.2d 587, 593

(11th Cir. 1984) (en banc). A court must permit substitution if it does not interfere


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with the “fair, orderly and effective administration of the courts.” United States v.

Koblitz, 803 F.2d 1523, 1528 (11th Cir. 1986). The denial of the right to counsel of

choice is structural error. Gonzalez-Lopez, 548 U.S. at 150.

      An indigent criminal defendant who seeks appointed counsel “does not have

a right to have a particular lawyer represent him nor to demand a different

appointed lawyer except for good cause.” Thomas v. Wainwright, 767 F.2d 738,

742 (11th Cir. 1985) (citation omitted). Good cause exists where there is “a

fundamental problem, ‘such as a conflict of interest, a complete breakdown in

communication or an irreconcilable conflict which leads to an apparently unjust

verdict.’” United States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008) (en banc)

(quoting United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973)). The exception

for good cause protects the right to effective assistance of counsel; if good cause

exists, a defendant no longer has effective representation. See United States v.

Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010).

      This appeal requires that we decide which standard applies when a defendant

moves to replace retained counsel with appointed counsel. And the order of that

sequence supplies the answer. The right to choose counsel is incomplete if it does

not include the right to discharge counsel that one no longer chooses.

      A defendant exercises the right to counsel of choice when he moves to

dismiss retained counsel, regardless of the type of counsel he wishes to engage

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afterward. To be sure, when an indigent defendant has exercised the right to

dispense with a retained lawyer, the right to effective representation—a right

“derived . . . from the purpose of ensuring a fair trial,” Gonzalez-Lopez, 548 U.S. at

147—might require that appointed counsel take his place. But that distinct right

does not alter the right under the Sixth Amendment to hire and fire retained

counsel. Because a defendant who moves to dismiss his retained counsel maintains

the right to counsel of choice, a district court cannot require the defendant to show

good cause.

      We agree with those courts that have held that a defendant may discharge his

retained counsel without regard to whether he will later request appointed counsel.

In United States v. Brown, 785 F.3d 1337 (9th Cir. 2015), the Ninth Circuit stated

that when a defendant wishes to discharge retained counsel and substitute

appointed counsel, the right to counsel of one’s choice is “implicate[d].” Id. at

1344 (quoting Rivera-Corona, 618 F.3d at 981). Even though the defendant was

not “entitled to, or seeking, counsel of choice,” “the Sixth Amendment right to

counsel of choice means that a defendant has a right to ‘fire his retained . . .

lawyer . . . for any reason or [for] no reason.’” Id. (alterations in original) (quoting

Rivera-Corona, 618 F.3d at 980). Accordingly, the Ninth Circuit concluded that a

defendant with retained counsel seeking to substitute appointed counsel has a

“Sixth Amendment right to discharge his retained counsel.” Id. It held that a

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district court should grant a defendant’s motion to discharge a retained counsel

unless denying the motion is “compelled by ‘purposes inherent in the fair, efficient

and orderly administration of justice.’” Id. at 1347 (quoting Rivera-Corona, 618

F.3d at 979). The Court of Criminal Appeals of Oklahoma and the Supreme Court

of California have also held that a defendant who seeks to discharge retained

counsel and have the court appoint counsel may do so unless the substitution

would delay court proceedings, prejudice the parties, or disrupt “the orderly

process of justice.” Dixon v. Owens, 865 P.2d 1250, 1252 (Okla. Crim. App.

1993); accord People v. Ortiz, 800 P.2d 547, 555 (Cal. 1990) (in bank). Several

state intermediate courts have adopted similar approaches. See People v.

Abernathy, 926 N.E.2d 435, 440–44 (Ill. App. Ct. 2010); People v. Munsey, 232

P.3d 113, 126–27 (Colo. App. 2009); State v. Barber, 206 P.3d 1223, 1234–36

(Utah Ct. App. 2009).

      We reject the view of the First Circuit, which applied the standard of good

cause in this circumstance. In United States v. Mota-Santana, 391 F.3d 42 (1st Cir.

2004), the First Circuit explained that a district court had taken “two actions” when

it refused to allow the retained counsel to withdraw and it refused to appoint

substitute counsel. Id. at 46–47. “Were the only issue that of the appropriateness of

the court’s refusal to permit withdrawal,” the First Circuit reasoned, “there might

be some question” because “a defendant is not ordinarily dependent on the court’s

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permission to replace retained counsel.” Id. at 47. “But here,” the court concluded,

“the two actions merge.” Id. The opinion of the First Circuit offers no additional

reasoning and we are not persuaded that the only relevant action is the second

request to engage new counsel or that the motion to dismiss retained counsel no

longer implicates the right to counsel of choice. This decision conflates the two

rights at issue, contrary to the later explanation by the Supreme Court of the United

States in Gonzalez-Lopez that the rights are distinct. See Gonzalez-Lopez, 548 U.S.

at 148.

      To be sure, a district court reviewing a motion to dismiss counsel must know

how the defendant wishes to proceed so that the defendant will not be left without

representation in violation of the Sixth Amendment. “The Sixth Amendment

withholds from federal courts, in all criminal proceedings, the power and authority

to deprive an accused of his life or liberty unless he has or waives the assistance of

counsel.” Johnson v. Zerbst, 304 U.S. 458, 463 (1938) (footnote omitted). So,

before granting a motion to dismiss retained counsel, a district court must

determine that the criminal defendant either will be represented by counsel or has

made a knowing and voluntary waiver of the right to counsel. Brown, 785 F.3d at

1345; see also United States v. Evans, 478 F.3d 1332, 1340 (11th Cir. 2007). If a

defendant intends to move the court to appoint counsel, the court should determine

whether the defendant is eligible for appointed counsel. See 18 U.S.C. § 3006A.

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      Even when a district court is assured that a defendant will have

representation or has waived the assistance of counsel, a court may still deny a

motion to substitute retained counsel if it will interfere with the “fair, orderly, and

effective administration of the courts.” Koblitz, 803 F.2d at 1528. For example, a

defendant may not substitute counsel to delay court proceedings. See United States

v. Silva, 611 F.2d 78, 79 (5th Cir. 1980). Under this standard, a court reviewing a

motion to dismiss retained counsel by a defendant who intends to request

appointed counsel can prevent potential manipulation.

      The district court applied the wrong standard when it denied Joshi’s motion

to withdraw as counsel. It assessed Joshi’s performance. The district court stated

that there was no evidence that Jimenez-Antunez was coerced and that Jimenez-

Antunez “ha[d] been afforded effective counsel.” The district court offered no

reasons why granting the motion would have interfered with the fair, orderly, and

effective administration of the courts, and we cannot necessarily infer any reasons

from the record. Because the district court denied the motion by applying the

wrong standard and we cannot say whether it would have denied the motion under

the correct standard, the district court committed reversible error. Because we

remand on this ground, we do not reach Jimenez-Antunez’s argument that he was

denied his right to due process of law when the court did not give him advance

notice of the hearing on Joshi’s motion to withdraw.

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                            IV. CONCLUSION

      We VACATE and REMAND for further proceedings consistent with this

opinion.




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