IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31240

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RANDEL J. MASON,

Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Randel Mason appeals his conviction for wire fraud and his sentence of 30

months’ imprisonment and $757,792.20 in restitution. He argues that the

district court committed plain error by failing to advise him during his guilty

plea colloquy of his right to court-appointed counsel if financially eligible, as

required by Rule 11 of the Federal Rules of Criminal Procedure. He also argues

that the district court violated his Sixth Amendment right to choice of counsel

by denying his motion, filed five weeks before his scheduled sentencing date, to

substitute appointed counsel for his retained counsel. We AFFIRM Mason’s

conviction, but VACATE his sentence and REMAND for re-sentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

January 19, 2012

Lyle W. Cayce

Clerk

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I.

Mason is a building contractor and the former owner of Mason

Construction Company, Inc., which built residential homes. Mason

Construction built homes in five to seven stages. Upon completion of each

stage, Mason Construction submitted a draw on its line of credit to its financing

company, National City Mortgage (now PNC Mortgage). To receive these

draws, Mason Construction submitted a completion certification and an

inspection certification signed by an independent inspector.

The conduct relevant to Mason’s conviction involved Mason and his longtime office assistant and co-defendant, Tammy Dixon. In August 2005, Mason

and Dixon crossed the line, submitting false documentation to National City

Mortgage. By this scheme,Mason and Dixon fraudulently obtained $825,943.60. 

In December 2009, Mason and Dixon were charged with conspiracy to commit

wire fraud, in violation of 18 U.S.C. §§ 371 and 1343, and twenty-nine counts of

wire fraud, in violation of 18 U.S.C. § 1343.

Mason made his initial appearance before the magistrate judge on

January 11, 2010, with retained counsel, David Williams. On April 12, 2010,

Williams filed a motion to withdraw as counsel, which the magistrate judge

denied on April 14. Thereafter, Mason appeared before the district court with

Williams on the morning of June 3, 2010, to enter a guilty plea. The district

court, however, continued the hearing until that afternoon after Mason said he

was confused about the plea. The district court reconvened the hearing that

afternoon, but had to reschedule it until June 23, 2010, because after the

district court clarified the maximum possible sentence under the plea

agreement, Mason indicated that he did not know what to do in light of more

fully understanding the consequences of his plea. Before the conclusion of that

hearing, Mason indicated that he intended to plead guilty because he did not

think he could afford a long trial:

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THE DEFENDANT: I’m sorry, but I — I don’t mean to waste the

Court’s time. I just really don’t know what to do.

THE COURT: You’re not wasting anybody’s time. That’s what I'm

paid to do. And I don’t do piecework, so I want you to be absolutely

comfortable and assured of what you’re doing. So we’ll just put this

off to another time.

. . . .

THE DEFENDANT: Your Honor, I don’t mean to . . . But no one

ever interviewed me, and no one ever heard my side of the story.

But yet, you know, I don’t want to go to jail or — you know, I mean,

I have a serious problem with this because I didn’t create this

problem.

THE COURT: Well, that’s — then do not plead guilty. If you —

THE DEFENDANT: But I can’t afford a long trial.

THE COURT: Well, I’m not sure how long the trial will be.

Let’s tentatively set this for 10:00 on June 23, at which time you

can make up your mind what you wish to do. Okay?

Although Mason did not enter a guilty plea on June 3, he did file a

document entitled “Understanding of Maximum Penalty and Constitutional

Rights” (Understanding of Constitutional Rights), which he had signed on April

30, 2010. In that document, Mason averred that he understood his “right to be

represented by counsel (a lawyer) of [his] choice, or if [he could not] afford

counsel, [his] right to be represented by court-appointed counsel at no cost to

[him].”

On June 17, 2010, Williams filed a second motion to withdraw as Mason’s

counsel, citing a breakdown in his ability to communicate with Mason that, he

asserted, rendered effective representation impossible. The district court did

not rule on this motion until the hearing on June 23, 2010. At that hearing the

district court asked Mason about his relationship with Williams. Mason

responded that he was now satisfied with Williams:

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THE COURT: You were originally scheduled for a guilty plea today,

but I gather you want to change attorneys?

THE DEFENDANT: No, sir. Mr. Williams and I have spent quite

a long time this week. I think I have a better feel now for what’s

going on.

THE COURT: All right. So tell me; are we now agreed that Mr.

Williams can represent you?

THE DEFENDANT: Yes, sir.

THE COURT: You’re sure you’re satisfied with that?

THE DEFENDANT: Yes, sir, I’m satisfied.

Before accepting Mason’s guilty plea, the district court again sought and

received Mason’s assurance that he was satisfied with Williams’s

representation:

THE COURT: . . . All right. Mr. Mason, let’s talk frankly.

This is the point at which I usually ask: Have you had all the time

that you need to discuss this with your lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: You have? Are you sure you have?

THE DEFENDANT: Yes, sir.

THE COURT: And you are satisfied with him as a lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: Are you sure, because — tell me about why,

how you came back to believing he was a good lawyer for you.

THE DEFENDANT: I never thought he wasn’t a good lawyer.

I just was confused. I mean, we came in with one plea agreement

and then I guess I got blindsided with another one, and I didn’t

quite understand the consequences. And we just really weren’t

communicating very well.

THE COURT: But you are now?

THE DEFENDANT: Yes, sir. He sat down and we talked at

length, and I think I understand, yes, sir.

THE COURT: Are you sure you understand what’s

happening?

THE DEFENDANT: Yes, sir.

THE COURT: And you are sure that you want to keep Mr.

Williams?

THE WITNESS [sic]: Yes, sir.

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The district court then proceeded to conduct the plea-taking ceremony

required by Rule 11 of the Federal Rules of Criminal Procedure. However, the

district court did not orally advise Mason of the right of a financially eligible

defendant to have court-appointed counsel represent him at trial and every

other stage of the proceedings. Mason pleaded guilty to counts 6 and 27. The

district court accepted Mason’s plea.

On August 20, 2010, Mason filed a letter requesting “the court to appoint

an attorney who can help me.” Mason explained that he was “not working well

with . . . Williams on [his] sentencing hearing” and that he was confident that

“Williams [did] not want to spend too much time with [him] because of [his]

inability to pay promptly.” Almost a month later, the district court denied

Mason’s request without reasons.

The district court sentenced Mason on November 18, 2010. According to

the calculations in Mason’s Presentence Investigation Report (PSR), Mason’s

guidelines sentencing range was 27 to 33 months. After a lengthy hearing on

the amount of loss caused by Mason’s fraud, the district court adopted the PSR’s

calculations, and sentenced Mason to 30 months’ imprisonment on each count,

to run concurrently. The district court ordered Mason to pay $757,792.20 in

restitution to the victim mortgage company. The district court also imposed a

three-year term of supervised release for each count, to run concurrently.

After filing a timely notice of appeal, Williams filed a motion to withdraw

and to have counsel appointed to represent Mason on appeal. Mason then filed

a financial affidavit under seal. The district court determined that Mason was

financially unable to retain counsel, granted Williams’s motion to withdraw,

and ordered that counsel be appointed to represent Mason.

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II.

A. Mason’s Challenge to his Guilty Plea

Mason first asks us to overturn his guilty plea. He argues that the

district court committed reversible error by failing to advise him of his right to

court-appointed counsel, if financially eligible, during his guilty plea colloquy,

as required by Fed R. Crim. P. 11(b)(1)(D).

Because Mason did not raise this issue in the district court, we review for

plain error. Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights

may be considered even though it was not brought to the court’s attention.”);

United States v. Vonn, 535 U.S. 55, 59 (2002). Mason therefore bears the burden

of proving (1) error, (2) that is plain, and (3) that affects his substantial rights. 

Vonn, 535 U.S. at 62–63; United States v. Olano, 507 U.S. 725, 733–34 (2003). 

We are not confined to considering only the record of the plea proceeding, but

“may consult the whole record when considering the effect of any error on

substantial rights.” Vonn, 535 U.S. at 59. If Mason satisfies the first three

prongs of the plain error analysis, we proceed to the fourth prong, which affords

us “the discretion to remedy the error—discretion which ought to be exercised

only if the error seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)

(internal quotation marks omitted).

Mason has satisfied prong one. In relevant part, Rule 11 requires a

district court, before accepting a guilty plea, to “address the defendant

personally in open court,” during which address it “must inform the defendant

of, and determine that the defendant understands . . . the right to be represented

by counsel—and if necessary have the court appoint counsel—at trial and at

every other stage of the proceeding.” Fed. R. Crim. P. 11(b)(1)(D). In this case,

during the Rule 11 plea-taking ceremony, the district court did not orally advise

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Mason of his right, if financially eligible, to court-appointed counsel. The

government nevertheless maintains that the district court satisfied Rule 11 by

advising Mason that, should he proceed to trial, Williams would represent him1

or, alternatively, by accepting from Mason his signed copy of the Understanding

of Constitutional Rights document. Neither of these facts satisfies the plain

language of Rule 11. Rule 11(b)(1)(D) requires district courts to inform

defendants of their right to court-appointed counsel, if necessary, not merely to

counsel. And Rule 11 expressly requires district courts to “address the

defendant personally in open court” concerning certain specified rights, not

merely to accept a defendant’s written acknowledgment of his understanding of

those rights. The district court’s failure to satisfy Rule 11’s express

requirements was error.2

 At Mason’s aborted plea hearing on June 3, 2010, the district court advised him: “If 1

we had a trial, the witnesses would have to testify in your presence and in the presence of Mr.

Williams, who could object to any evidence offered by the Government. He could put on

evidence in your behalf. He could subpoena witnesses from anywhere . . . Do you understand

that?”

On June 23, 2010, before accepting Mason’s guilty plea, the district court advised him:

“If we had a trial, the witnesses would come to court and testify in your presence, in the

presence of Mr. Williams, who could cross-examine them, object to evidence . . . put on

evidence in your behalf, subpoena witnesses from anywhere. . . . Understood?”

The dissent would find no error here on the basis of our holding in United States v. 2

Sanchez, 650 F.2d 745, 748 (5th Cir. 1981), that where a defendant is represented by

appointed counsel at his guilty plea colloquy, a district court does not violate Rule 11 if it

informs the defendant of his right to counsel at all stages of the proceedings, but not “that this

right [is] a right to appointed counsel.” Sanchez is distinguishable because Mason was

represented by retained, not appointed, counsel at his plea hearing. More importantly,

Sanchez’s holding does not survive the 2002 amendments to Rule 11. Sanchez grounded its

holding in a provision of the text of Rule 11 that has since been deleted: “Rule 11(c)(2) [the

precursor to the present Rule 11(b)(1)(D)], by its own language, limits the necessity for such

a charge to situations where ‘the defendant is not represented by an attorney’ at the plea

proceeding.” Id. The dissent would avoid the force of the deletion of this clause by resorting

to the Advisory Committee Notes pertinent to the 2002 amendments to Rule 11, which assert

that those amendments were “intended to be stylistic only, except as noted below.” That

comment in the Notes cannot, however, alter the plain text of the current version of Rule 11. 

“[I]t is that Rule which by its terms governs,” not expressions of the drafters’ intent in the

Advisory Committee Notes. Johnson v. United States, 520 U.S. 461, 466 (1997); see also Tome

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Mason satisfies prong two as well. “‘Plain’ is synonymous with ‘clear’ or,

equivalently, ‘obvious.’” Olano, 507 U.S. at 734. Because the requirements of

Rule 11 are explicit, and a review of the transcript shows that the mandatory

advice was not given, the district court’s error in failing to adhere to Rule 11 was

obvious.

Accordingly, we must determine whether the district court’s error affected

Mason’s substantial rights. It is well-settled that, “[a]s a general rule, an error

affects a defendant’s substantial rights only if the error was prejudicial.” 

United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). “Error

is prejudicial if there is a reasonable probability that the result of the

proceedings would have been different but for the error.” Id. To prevail,

therefore, Mason “must show a reasonable probability that, but for the error,

he would not have entered the plea.” United States v. Dominguez Benitez, 542

U.S. 74, 83 (2004). Moreover, “[t]he probability of a different result must be

sufficient to undermine confidence in the outcome of the proceedings.” 

Gonzalez-Rodriguez, 621 F.3d at 363.

Applying these principles, we hold that the district court’s error did not

affect Mason’s substantial rights. Mason’s strongest evidence that the district

court’s error caused him to plead guilty is his exchange with the district court

v. United States, 513 U.S. 150, 167–68 (1995) (Scalia, J., concurring in part and concurring in

the judgment) (explaining that “[i]t is the words of the Rules that have been authoritatively

adopted—by this Court, or by Congress if it makes a statutory change” and that although the

Notes are submitted to the Court and Congress, “there is no certainty that either we or they

read [them], nor is there any procedure by which we formally endorse or disclaim them. That

being so, the Notes cannot, by some power inherent in the draftsmen, change the meaning that

the Rules would otherwise bear.”). Although we have, as the dissent points out, recently cited

the relevant portion of Sanchez with approval, see United States v. Saucedo-Rios, 439 F.App’x

316, 317 (5th Cir. 2011) (per curiam) (unpublished), that case is not precedential. Nor does

it appear that Sanchez’s vitality after the 2002 amendment was called into question in

Saucedo-Rios. Nor was Saucedo-Rios’s reliance on Sanchez necessary to its holding, because

the panel also held that the defendant failed to satisfy the substantial rights prong of the plain

error test. Id.

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at his June 3, 2010 hearing. After deciding not to plead guilty, Mason lamented

to the district court that “no one ever interviewed me, and no one ever heard my

side of the story. But yet, you know, I don’t want to go to jail or—you know, I

mean, I have a serious problem with this because I didn’t create this problem.” 

After the district court responded, “then do not plead guilty,” Mason objected,

“But I can’t afford a long trial.” As Mason would have it, this statement

definitively proves that he would have decided to proceed to trial right then and

there if only he could have afforded trial counsel. This interpretation would,

indeed, be quite powerful if the only record evidence were the transcript of the

June 3 hearing. But the remainder of the record precludes Mason’s

interpretation.

Most fatal to Mason’s position, the record reveals that Mason was aware

of his right to appointed trial counsel notwithstanding the district court’s error. 

More than a month before his first attempt to plead guilty, Mason signed the

Understanding of Constitutional Rights document, a simple document, with

barely over a page of double-spaced text, that plainly states that he understood

his right to a court-appointed attorney if he could not afford his own. By

affixing his signature to that document, Mason “state[d] that I understand . .

. [m]y right to be represented by counsel (a lawyer) of my choice, or if I cannot

afford counsel, my right to be represented by court-appointed counsel at no cost

to me.” Mason’s retained attorney also signed the document. Recognizing the

difficulty that this document poses for his position, Mason argues that although

the document reflects his understanding of his right to court-appointed counsel

for his guilty plea hearing, it does not demonstrate that he was aware of his

right to appointed trial counsel. He asserts that this was his understanding

given that the document “was prepared in connection with a plea hearing” and

nowhere explicitly states that the right to appointed counsel extends to trial. 

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We are unconvinced. Mason could not have reasonably read the document as

referring to his right to appointed counsel only in connection with his guilty

plea, and not trial, because the other constitutional rights he acknowledged in

that document pertain to trial, not his guilty plea.

Moreover, there are many indications in the record that Mason’s guilty

plea was voluntary. Before accepting Mason’s plea on June 23, 2010, the

district court twice requested and obtained his assurance that he wanted to

plead guilty. At the hearing, Mason twice indicated that he understood what

was occurring. The district court found him competent to enter his plea. And

although Mason had previously expressed dissatisfaction with Williams, his

attorney, he repeatedly reassured the district court before pleading guilty that

he was happy with Williams representing him, and was sure he wanted to keep

him as his lawyer. The following conversation is illustrative:

THE COURT: And you are satisfied with [Williams] as a lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: Are you sure, because — tell me about why, how you

came back to believing he was a good lawyer for you.

THE DEFENDANT: I never thought he wasn’t a good lawyer. I just

was confused. I mean, we came in with one plea agreement and

then I guess I got blindsided with another one, and I didn’t quite

understand the consequences. And we just really weren’t

communicating very well.

THE COURT: But you are now?

THE DEFENDANT: Yes, sir. He sat down and we talked at length,

and I think I understand, yes, sir.

THE COURT: Are you sure you understand what’s happening?

THE DEFENDANT: Yes, sir.

THE COURT: And you are sure that you want to keep Mr.

Williams?

THE WITNESS [sic]: Yes, sir.

Given that Mason knew about his right to appointed counsel from the

Understanding of Constitutional Rights document, and that he unequivocally

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reiterated that his plea was voluntary and that he was satisfied with his

attorney, we conclude that there was no “reasonable probability that, but for the

error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. 

To be sure, the district court should have complied with Rule 11 at Mason’s plea

colloquy and, in a perfect world, the district court also would have responded to

Mason’s statement that he could not afford a long trial by advising him of his

right to court-appointed counsel. Nonetheless, Mason understood his right to

have a lawyer appointed and repeatedly asserted that he wanted to plead guilty

and that he was satisfied with Williams’s representation. The district court’s

Rule 11 error did not, therefore, affect Mason’s substantial rights. Mason’s

conviction must stand.

B. Mason’s Right to Choice of Counsel at Sentencing

Mason next argues that the district court violated his Sixth Amendment

right to choice of counsel by denying his request to have counsel appointed to

represent him at sentencing. Mason made his request in the form of a letter

filed on August 20, 2010, five weeks before the original date of his sentencing

hearing, and almost three full months before his actual sentencing hearing. In

his letter Mason requested that the district court “appoint an attorney who can

help me,” in part because he was “not working well with [his retained attorney]

Williams on [his] sentencing hearing” and because he was confident that

“Williams [did] not want to spend too much time with [him] because of [his]

inability to pay promptly.” The district court denied Mason’s request without

reasons almost a month later.

We review de novo the district court’s denial of Mason’s request for

appointed counsel. Mason’s argument turns on the proper interpretation of his

Sixth Amendment rights. That is a question of law, which we review de novo. 

See, e.g., United States v. White, 465 F.3d 250, 254 (5th Cir. 2006) (“The

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application of the Sixth Amendment . . . is a question of law that we review de

novo.”).

The Sixth Amendment guarantees that “[i]n all criminal prosecutions,the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.” U.S. Const. amend. VI. The Supreme Court has interpreted this

provision as affording indigent defendants the right to court-appointed counsel. 

Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938); see also Gideon v. Wainwright,

372 U.S. 335, 342–45 (1963) (holding that the right of indigent defendants to

appointed counsel is made obligatory on the States by the Fourteenth

Amendment). The Supreme Court has also held that the Sixth Amendment

generally guarantees criminal defendants the distinct right to representation by

the counsel of their choice. See Powell v. Alabama, 287 U.S. 45, 53 (1932). 

However, “the right to counsel of choice does not extend to defendants who

require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548

U.S. 140, 151 (2006). This is because the right to court-appointed counsel

guarantees the right to adequate representation, not representation by a

particular attorney. Caplin & Drysdale, Chartered v. United States, 491 U.S.

617, 624 (1989).

Before considering whether theseSixth Amendment rights entitled Mason

to substitute appointed for retained counsel, we must determine whether Mason

effectively asserted his Sixth Amendment rights. The parties have not cited to

any case that discusses what a defendant who is represented by retained counsel

must do to invoke his right to appointed counsel, and we are unaware of any

binding precedent on this issue. We are cognizant that too lax of a standard 3

The government argues that Mason’s request failed to comply with United States v. 3

Cano, 519 F.3d 512, 516 (5th Cir. 2008), which states the rule that a defendant’s request to

represent himself must be “clear and unequivocal.” Cano is inapposite here because the

defendant is not waiving his constitutional right to counsel, but asserting his Sixth

Amendment rights to choice of counsel and court-appointed counsel. See Brown v.

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might encourage gamesmanship because a defendant could make a vague

request for appointment of new counsel, and if that request is ignored or denied,

wait and see if subsequent proceedings conclude favorably for him before

deciding whether or not to challenge the denial of his request. Nevertheless, it

is unnecessary to define the parameters of the standard in this case. On these

facts, we conclude that Mason effectively invoked his Sixth Amendment rights. 

He unambiguously, and in writing, requested appointed counsel. In his letter

to the district court, Mason asked “the court to appoint an attorney who can help

me.” The district court interpreted Mason’s letter as a request for a courtappointed lawyer, describing the letter in its order as “defendant’s motion to

appoint counsel.” Nor could the district court have reasonably construed

Mason’s request as a request for hybrid representation because Mason cited

several reasons that, he asserted in his letter, made “it necessary to request a

change” (emphasis added). Because Mason asserted his Sixth Amendment

rights, we must decide whether the Sixth Amendment entitled him to substitute

appointed counsel.

We have not previously addressed whether a financially eligible defendant

has a Sixth Amendment right to replace his retained counsel with courtappointed counsel. We therefore must turn for guidance to our precedents

governing analogous situations. Under our precedents, a defendant who is

already represented by appointed counsel is not entitled to have the court

appoint substitute counsel unless he can demonstrate “good cause, such as a

conflict of interest, [or] a complete breakdown in communication.” United States

v. Young, 482 F.2d 993, 995 (5th Cir. 1973). We apply this good cause

Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc) (observing that the reason for

requiring an unequivocal request to proceed pro se is that the defendant is waiving his

constitutional right to assistance of counsel). Moreover, even assuming arguendo that this

rule applies, Mason satisfied it because his request was clear and unequivocal.

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requirement because the only Sixth Amendment right that could entitle an

indigent defendant to a new attorney is the right to effective assistance of

counsel. See id. If an indigent’s current appointed counsel is constitutionally

adequate, he has “no cognizable complaint.” Caplin & Drysdale, 491 U.S. at 624. 

By contrast, a defendant need not show good cause to replace existing counsel

with new retained counsel. The Sixth Amendment guarantees such a defendant

the freedom to secure representation by any lawyer he should choose, provided

that none of the recognized exceptions to the right to choice of counsel applies. 

See Wheat v. United States, 486 U.S. 153, 159 (1988) (listing exceptions to the

right); Gonzalez-Lopez, 548 U.S. at 151–52 (same).

In our view, Mason’s situation is more akin to that of a defendant

requesting permission to substitute new retained counsel than that of a

defendant asking for a different court-appointed lawyer. When Mason asked the

district court to appoint an attorney to assist him he had not yet exercised his

right to appointed counsel. Therefore, Mason still retained his Sixth

Amendment right to choice of counsel. See id. at 151 (“[T]he right to counsel of

choice does not extend to defendants who require counsel to be appointed for

them.”). Consistent with that right, Mason could have substituted any new

retained counsel he wished. It follows that one of the constitutionally protected

choices Mason could have made was to invoke his right as an indigent to courtappointed counsel. Because Mason retained the right to choice of counsel, he 4

was not required to show good cause to substitute appointed counsel. As we

In the usual case, remand would be required for the district court to inquire into the 4

defendant’s financial eligibility for appointed counsel. That inquiry is unnecessary here,

however, because according to the PSR,“[Mason] and his wife have zero assets, unsecured debt

exceeding $300,000, and a negative net monthly cash flow of $8,000,” and there is nothing in

the record to refute these amounts. Unsurprisingly, when the district court considered

Mason’s financial eligibility for appointed appellate counsel, it found him eligible, and

appointed Mason’s present counsel. On these facts, there can be no doubt that Mason was

financially eligible for court-appointed counsel.

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have explained, the good cause standard applies when a defendant seeks new

appointed counsel because a defendant is entitled to a new appointed lawyer

only if he can show constitutionally inadequate representation. See Young, 482

F.2d at 995. Here, however, Mason was not already represented by appointed

counsel when he requested appointed counsel.

The dissent finds “baffling” our conclusion that Mason’s request for

appointed counsel implicated his constitutional right to choice of counsel. In the

dissent’s view, that right extends only to defendants who desire to retain new

counsel. To support this narrow articulation of the right, the dissent selectively

quotes from the Supreme Court’s opinions in Gonzalez-Lopez and Caplin &

Drysdale. In Gonzalez-Lopez, the Court explained that the Sixth Amendment

entitles “a defendant who does not require appointed counsel to choose who will

represent him.” 548 U.S. at 144. In Caplin & Drysdale, the Court wrote that

the right to choice of counsel “does not go beyond ‘the individual’s right to spend

his own money to obtain the advice and assistance of . . . counsel.’” 491 U.S. at

626 (quoting Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 370

(1985) (Stevens, J., dissenting)). Read in context, however, these statements say

nothing about whether the right to choice of counsel extends to a defendant in

Mason’s situation. When Gonzalez-Lopez limited the right to “a defendant who

does not require appointed counsel,” it was merely reiterating the established

rule that defendants who require appointed counsel have no right to choose

which lawyer the state appoints. See Caplin & Drysdale, 491 U.S. at 624 (“The

[Sixth] Amendment guarantees defendants in criminal cases the right to

adequate representation, but those who do not have the means to hire their own

lawyers have no cognizable complaint” under the distinct Sixth Amendment

right to choice of counsel). The dissent’s quotation from Caplin & Drysdale is

likewise irrelevant to this case. There, the Court wrote that the choice of counsel

right “does not go beyond ‘the individual’s right to spend his own money’” as

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support for its holding that the Sixth Amendment does not create a right for

criminal defendants to expend forfeitable assets to retain their preferred

counsel. Id. at 626–28. The Court was simply enunciating the principle, stated

explicitly in its next sentence, that “[a] defendant has no Sixth Amendment right

to spend another person’s money for services rendered by an attorney.” Id. at 626

(emphasis added). Thus, neither Gonzalez-Lopez nor Caplin & Drysdale affects

our conclusion that Mason retained his Sixth Amendment right to choice of

counsel because he was initially represented by private counsel. Most of the

remainder of the dissent’s critique is inapplicable to our reasoning because it

follows from the false premise that Mason had no right to choice of counsel.

Accordingly, we hold that, pursuant to the Sixth Amendment right to

choice of counsel, a criminal defendant is not required to show good cause to

substitute appointed for retained counsel, provided of course that he can

establish financial eligibility. Our holding accords with a recent Ninth Circuit 5

decision. See United States v. Rivera-Corona, 618 F.3d 976, 979–81 (9th Cir.

2010) (holding that a defendant need not show good cause to replace retained

with appointed counsel because of the defendant’s “qualified right to choice of

counsel”). The First Circuit has reached the opposite conclusion, but in a case

in which it devoted scant attention to the issue presented here—probably

because the defendant did not argue that he had a per se right to substitute

appointed counsel, but that the district court erred by failing to inquire into an

We recognize that the Sixth Amendment right to choice of counsel is qualified, not 5

absolute. The Supreme Court has held that a defendant may not insist on representation by

a non-attorney or an attorney disqualified by a conflict of interest, and that a trial court may

balance the right to choice of counsel against the needs of fairness and the demands of its

calendar. See Gonzalez-Lopez, 548 U.S. at 151–52. These exceptions, however, are not

applicable here. The district court did not mention the demands of its calendar in denying

Mason’s request, and that concern would not seem to be implicated in this case because Mason

moved for substitution of counsel five weeks before his scheduled sentencing hearing. None

of the other exceptions are present because Mason has asked the court to appoint counsel, not

for permission to substitute a particular attorney.

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alleged conflict of interest between the defendant and his attorney. See United

States v. Mota-Santana, 391 F.3d 42, 45–47 (1st Cir. 2004).

We conclude that the district court violated Mason’s Sixth Amendment

right to choice of counsel by denying his motion to replace Williams with new

counsel for sentencing. Moreover, because Mason was financially eligible, he 6

was entitled to court-appointed counsel. Re-sentencing is required here because 7

the Supreme Court has squarely held that deprivation of the right to choice of

counsel is not subject to harmless error review. See Gonzalez-Lopez, 548 U.S. at

148–50 (holding that “erroneous deprivation of the right to counsel of choice

The dissent misconstrues the right to counsel of choice in accusing us of “tak[ing] 6

Gonzalez-Lopez much too far.” The dissent treats Gonzalez-Lopez as if its facts establish the

constitutional floor for demonstrating a violation of the right. But Gonzalez-Lopez is just one

example of a violation of a defendant’s right to choice of counsel. What matters is that Mason

has shown that he possessed the right and that none of the recognized exceptions apply to him.

The dissent attacks a strawman when he criticizes our opinion for “skip[ping]the role 7

of the [trial] judge” and giving defendants the green light to “at will change lawyers midway

in the proceeding.” Our ruling does no such thing. While it is true that the Sixth Amendment

right to choice of counsel precludes imposition of a good cause standard on defendants, trial

courts retain “wide latitude” to balance “the right to counsel of choice against . . . the demands

of [their] calendar[s].” Gonzalez-Lopez, 548 U.S. at 152. Thus, when a defendant asserts the

right “midway in the proceeding,” a trial court may deny the request if a continuance for new

counsel would disrupt the court’s schedule. See, e.g., United States v. Jones, 662 F.3d 1018,

1024–25 (8th Cir. 2011) (finding no abuse of discretion in the district court’s denial of

defendant’s request for a continuance to retain new counsel the week before trial). In this

case, the district court gave no indication that it was denying Mason’s motion due to

scheduling problems. Indeed, that reason would not seem to apply here because Mason

requested the change five weeks before his sentencing was scheduled to occur and three

months before Mason’s actual sentencing hearing.

The dissent’s reliance on United States v. Dilworth is therefore misplaced. 524 F.2d

470 (5th Cir. 1975). The dissent cites Dilworth to support the criticism that we are giving

“[m]ore effect . . . to Mason’s expression of dissatisfaction than the court has given [to similar

expressions] in the past.” But Dilworth is inapposite because it merely illustrates the

unremarkable proposition that a court may balance the qualified right to choice of counsel

against scheduling demands.

Our holding is also fully consistent with our prior decision in United States v. Dinitz,

538 F.2d 1214 (5th Cir. 1976), which the dissent also cites. In Dinitz, we explained that “we

must place th[e] qualified right to choose one’s own counsel against the backdrop of judicial

discretion.” Id. at 1219. We do not quarrel with this principle, which is given effect through

the established exceptions to the Sixth Amendment right to choice of counsel.

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. . . qualifies as [a] structural error,” which is not subject to review for

harmlessness (internal quotation marks omitted)).8

The dissent’s oft-repeated theme is that it is unjustifiable to remand for

re-sentencing where, as here, the record is bereft of evidence of any deficiencies

in Mason’s representation by his retained counsel. Eminent jurists agree. See

id. at 152–62 (Alito, J., dissenting) (joined by Roberts, C.J., and Kennedy and

Thomas, JJ.) (arguing that some showing of prejudice is required to establish a

Sixth Amendment choice of counsel violation and that such violations should be

subject to harmless error review). Yet for better or worse, this position only

commanded a minority of Justices in Gonzalez-Lopez, and is not currently the

law.9

We make clear that while Gonzalez-Lopez requires re-sentencing given the violation 8

of Mason’s right to choice of counsel, it does not, by itself, compel our antecedent conclusion

that Mason was deprived of that Sixth Amendment right. We reach that conclusion because

there is no basis in precedent or principle for extending the right to defendants who seek to

replace retained counsel with new retained counsel but not to financially eligible defendants

who seek to replace retained counsel with court-appointed counsel.

The dissent indulges in policy argument, criticizing our decision for “mak[ing] trouble 9

for [trial] judges.” That line of critique confuses our role as judges. Our sole task in this case

is to answer the legal questions presented. If our interpretation of the Constitution and

binding precedent requires us to enunciate a constitutional right that may impose some

additional burdens on trial courts, then so be it. Rights, by their nature, have costs.

Nevertheless, it is worth observing that the dissent both misstates and overstates the

practical consequences of this decision. First, the dissent asserts that defendants “may now

unilaterally force substitution of court-appointed counsel at any time without any

demonstration that their present counsel is unable or unwilling to continue representing

them” (emphasis added). Not true. Only defendants who can demonstrate financial eligibility

to the district court are entitled to substitute court-appointed counsel, and the district court

retains the discretion to deny a request for substitution where one of the exceptions to the

choice of counsel right applies.

Second, the dissent warns that our decision “supplies defendants with a reliable

delaying tactic, because new counsel will nearly always require a continuance to get up to

speed.” In fact, as a delaying tactic, our decision will be useless, or at the very most unreliable

to defendants, because under established Sixth Amendment principles, a district court may

deny a motion to substitute counsel if a continuance is necessary as an exercise of its “wide

latitude” to balance “the right to counsel of choice against . . . the demands of its calendar.”

Gonzalez-Lopez, 548 U.S. at 152 (citing Morris v. Slappy, 461 U.S. 1, 11–12 (1983)).

Finally, the dissent contends that the “fact-bound character” of our holding that Mason

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We are sympathetic to the dissent’s frustration, which was also expressed

by the dissenting Justices in Gonzalez-Lopez. For Mason, our decision may

represent the very definition of a hollow victory. There is nothing to guarantee

Mason a lighter sentence the second time around, and it is possible that he even

could receive a harsher sentence. Alas, we are duty-bound by higher authority. 

Because Mason’s Sixth Amendment right to choice of counsel has been abridged,

remand is obligatory. Mason is entitled to a new sentencing hearing.

III.

We AFFIRM Mason’s conviction, but VACATE his sentence and REMAND

for re-sentencing.

effectively invoked his Sixth Amendment rights will leave district courts guessing as to

whether ambiguous letters are requesting appointed counsel or merely expressing

dissatisfaction with the defendant’s current representation by retained counsel. This is a valid

concern. We agree that district courts would benefit from a clear standard regarding what a

defendant like Mason must say to invoke his Sixth Amendment rights. This question was not

well-briefed, however, and we are therefore loath to decide it in this case. Moreover, the

present lack of clarity is not a dire problem. Most communications, as the communication in

this case, will either unambiguously request or unambiguously fail to request court-appointed

counsel, and courts can err on the side of caution with respect to truly ambiguous

communications by requesting clarification. We must also emphasize that this decision

applies only to the narrow class of cases in which a defendant who is financially eligible for

appointed counsel is nevertheless represented by retained counsel, and then becomes unhappy

with his retained counsel and requests a court-appointed lawyer. Presumably because it is

rare for an indigent defendant to be able to retain counsel and because many defendants

(rightly or wrongly) are convinced that they will receive better representation from private

rather than appointed counsel, the situation governed by this case has, apparently, rarely

arisen, as reflected by the dearth of controlling or even persuasive authority on point.

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REAVLEY, J., Dissenting:

I would affirm because the patient district judge committed no error.

Mason had the assistance of his retained counsel from his initial appearance in

court through his sentencing, and he makes no contention that this

representation was ineffective. Yet the panel majority finds that Mason was

denied the right to replace his counsel, and orders a re-sentencing.

I.

The panel first faults the judge for failing to inform Mason of his right to

court-appointed counsel at the June 23 hearing. With retained counsel present

and after all that had been said by defendant about his counsel, it was not

necessary for the court to raise the right to have appointed counsel. Rule 11 does

require the information to be given “if necessary.” However the rule be

construed, I could find no error for a judge not stating the right to appointed

counsel under those circumstances, when it could imply to defendant the court’s

lack of confidence in present counsel.

In United States v. Sanchez, we held that Rule 11 did not inflexibly require

a district court “to personally inform [the defendant] that he was entitled to

appointed counsel at all stages of the proceedings.” Rule 11’s current paragraph 1

(b)(1)(D) was at that time numbered (c)(2), and it began with the qualifying

phrase “if the defendant is not represented by an attorney . . . .” That phrase 2

was removed in the general restyling and restructuring of the Rules of Criminal

 650 F.2d 745, 748 (5th Cir. 1981). 

1

Compare Fed. R. Crim. P. 11(b)(1)(D); with Fed. R. Crim. P. 11(c)(2), U.S.C.A. (West,

2

2001).

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Procedure undertaken in 2002. The change was not intended to alter paragraph 3

(c)(2)’s substance. 

4

We recently relied on Sanchez in our unpublished opinion in United States

v. Saucedo-Rios. The district court in that case had “failed to inform [the 5

defendant] that he had the right to court-appointed counsel.” We found no 6

violation of Rule 11. The omitted advice would not have been helpful, we

explained, because the defendant “was, in fact, represented by court-appointed

counsel throughout the proceedings in the district court.” We cited Sanchez for 7

the proposition that “Rule 11 limits the necessity for such a charge to situations

where the defendant is not represented by an attorney at the plea proceeding.”8

I agree with Saucedo-Rios’s interpretation of paragraph (b)(1)(D) to allow some

discretion to forgo advice regarding appointed counsel, and the omission here

was certainly harmless.

II.

Mason’s complaint is that he was not given an appointed lawyer in

response to his letter to the court on August 20. More effect is given by this

panel to Mason’s expression of dissatisfaction than the court has given in the

past. See United States v. Dilworth, 524 F.2d 470 (5 Cir 1976). Mason’s th

request was denied by the court, understandably after what had been said at

the June 23 hearing and having no reason to think Mason would not receive

 Fed. R. Crim. P. 11, Advisory Committee Notes, 2002 Amendments.

3

The Advisory Committee’s notes for the 2002 amendments explain that the changes 4

made to Rule 11 were “intended to be stylistic only, except as noted below.” The discussion

following that statement makes no mention of substantive changes to paragraph (c)(2).

 No. 09-50987, 2011 WL 3684500, *1 (5th Cir., Aug. 22, 2011) (unpublished).

5

 Id. 

6

 Id. 7

 Id. (citing Sanchez, 650 F.2d at 748 (internal quotation marks omitted)). 

8

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competent representation from his attorney. And that representation did

continue without objection. Sentencing was set for September 28 but was

continued until November 18 upon motion by the attorney Williams. On that

date the defendant appeared with Williams and sentencing was completed

without any complaint about or from counsel. I submit that there can be no

legitimate objection to this judge’s performance.

But the majority holds that by denying Mason’s letter requesting

appointed counsel, the district court somehow deprived Mason of “[his] Sixth

Amendment right to choice of counsel . . . .” I find this conclusion baffling. The

panel cites only the Supreme Court decision stating that right to choice of

counsel entitles “a defendant who does not require appointed counsel to choose

who will represent him.” United States v. Gonzalez-Lopez. It “does not go 9

beyond the individual’s right to spend his own money to obtain the advice and

assistance of . . . counsel.” Chaplin & Drysdale, Chartered v. United States.

10

Mason never sought to replace Williams with a new retained lawyer, and he

never asked for time or assistance to find another retained lawyer.

The only right that Mason’s letter at mid-case could possibly implicate was

his constitutional right to a publicly paid attorney incident to his right to

effective assistance of counsel. When a defendant with an appointed attorney

wishes to replace the attorney with a different appointed attorney, we require

the defendant to show good cause. United States v. Young. We require that 11

showing because “those who do not have the means to hire their own lawyers

have no cognizable complaint so long as they are adequately represented . . . .”12

 548 U.S. 140, 144, 126 S. Ct. 2557, 2561 (2006). 9

491 U.S. 617, 626, 109 S. Ct. 2646, 2652 (1989) (internal quotation marks omitted).

10

 482 F.2d. 993, 995 (5th Cir. 1973). 11

 Chaplin & Drysdale, 91 U.S. at 624, 109 S. Ct. at 2652. 12

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Mason’s position is equivalent. The only cognizable ground on which he can be

constitutionally entitled to representation at public expense is that he cannot

otherwise secure constitutionally effective representation. Surely establishing

that requires some showing that his retained counsel’s assistance would likely

fall short of the constitutional minimum. The panel majority does not think so. 

It takes the view that “Because Mason retained the right to choice of counsel, he

was not required to show good cause to substitute appointed counsel.” Mason

did not “retain” the right to choice of counsel in any way that sets him apart

from a defendant who has accepted appointed counsel. Mason did not assert the

right to choice of counsel, and the fact that he could have bears not at all on

whether the district court should have appointed a lawyer to replace Williams.

Parties to judicial trials may not at will change lawyers midway in the

proceeding. This court considered the right to choose counsel in United States

v Dimitz, 538 F.2nd 1214 (1976), beginning with the Supreme Court opinion in

Powell v Alabama, 53 S.Ct. 55 (1932). We explained that the qualified right to

choose one’s own counsel must be placed against the backdrop of judicial

discretion. The judge has discretion in deciding whether to allow changes in

counsel considering the defendant’s choice and all circumstances. This panel

skips the role of the judge and the need for cause to justify the change, and then

sweeps aside my concerns, by declaring its decision to be the command of the

Supreme Court in Gonzalez-Lopez. The panel takes Gonzalez-Lopez much too

far. There the defendants chosen lawyer was removed unlawfully by the court

and, despite repeated requests by the defendant, that chosen lawyer was denied

him. Here, after hearings and accommodations for Mason, he writes a letter to

the judge and despite all that went before and the continued representation by

the same lawyer, we hold that this indication of Mason’s preference was enough

to nullify the sentence. What this panel does is promote the right to choose

counsel to give the defendant the decision on whom shall be his counsel at every

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stage of the case, except for changing appointed counsel. I find no justification

for that exaggeration of Gonzalez-Lopez.

This decision makes trouble for judges. Defendants who have already

hired constitutionally adequate counsel may now unilaterally force substitution

of court-appointed counsel at any time without any demonstration that their

present counsel is unable or unwilling to continue representing them. This

supplies defendants with a reliable delaying tactic, because new counsel will

nearly always require a continuance to get up to speed. The fact-bound

character of the majority’s holding that Mason’s letter effectively asserted his

rights adds to the difficulties. Defendants in criminal cases are understandably

anxious about the amount of time and attention their attorneys devote to their

cases. Many express their worries in letters directed to the presiding judge. 

Every time a defendant expresses dissatisfaction with retained counsel, the

district court will have to wonder whether the defendant’s communication is one

that requires the court to choose between substituting appointed counsel or

risking that every subsequent proceeding in the case will have to be done over

again.

Finally, I respectfully suggest to my Fifth Circuit colleagues that we not

order resentencing unless the legal rights of a defendant require that. 

Resentencing burdens the marshals to transport and attend the defendant and

then imposes on a busy district judge to repeat the sentencing. 

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