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 5TH 

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

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choose 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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No. 17-41230

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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