United States v. Abel Cadena-Martinez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 17-41230
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ABEL CADENA-MARTINEZ,

Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-876-21

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Abel Cadena-Martinez pleaded guilty to conspiracy to possess with
intent to distribute more than five kilograms of cocaine in count one of a
superseding indictment. He was sentenced to 240 months in prison. On
appeal, he argues that the district court committed reversible error by denying
his right to his counsel of choice. An element of the Sixth Amendment right to
counsel “is the right of a defendant who does not require appointed counsel to

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 17, 2020

Lyle W. Cayce
Clerk
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No. 17-41230
2
ch oose who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140,
144 (2006). This “Sixth Amendment right to counsel of choice . . . commands
. . . that the accused be defended by the counsel he believes to be best.” Id. at
146. The right to counsel is not absolute, however, and a court retains wide
latitude in balancing that right against the needs of fairness and the demands
of its calendar. Id. at 151–52; United States v. Jones, 733 F.3d 574, 586 (5th
Cir. 2013).
There is no evidence in the record to suggest that Cadena-Martinez did
not require the appointment of counsel. He simply stated at the time of his
request for a continuance of trial that his family was willing to retain private
counsel, not that they had done so. Cadena-Martinez asserts that the district
court should have considered, or conducted a hearing, into his ability to retain
counsel due to financial misinformation Cadena-Martinez’s family may have
received regarding retaining counsel. Contrary to Cadena-Martinez’s
argument, the record shows that the district court considered all the
information, including the alleged misinformation regarding payment of fees,
presented at the bench conference in this matter. The district court did not
end the matter because Cadena-Martinez was without the resources to retain
counsel but specifically considered the possibility that his family had the
financial means to retain counsel.
The district court also considered the Gonzalez-Lopez factors in
determining whether to grant the continuance to retain counsel. The record
reflects that the request to retain counsel and for a continuance was filed after
jury selection had been completed. The district court noted the late request
and the obstructive effect that it might have on the administration of justice.
See McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985). Defense
counsel was appointed early in the case, and the district court noted that
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Cadena-Martinez had contemplated retaining counsel earlier. The district
court’s refusal to continue the case to permit Cadena-Martinez to attempt to
retain private counsel was within the court’s wide latitude in balancing the
right to counsel of choice against the needs and fairness of scheduling. See
Gonzalez-Lopez, 548 U.S. at 152; Jones, 733 F.3d at 586.
Cadena-Martinez argues that his appointed trial counsel was ineffective
for representing that his family would have to pay the fees of appointed counsel
to retain counsel. Cadena-Martinez did not present this claim of ineffective
assistance in the district court. We decline to reach this claim on direct appeal
without prejudice to Cadena-Martinez’s right to raise his claim on collateral
review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
AFFIRMED.
Case: 17-41230 Document: 00515493470 Page: 3 Date Filed: 07/17/2020