     Case: 12-40077     Document: 00511927180         Page: 1     Date Filed: 07/19/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 19, 2012
                                     No. 12-40077
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SAMUEL PINEDA PINEDA, also known as Sealed3, also known as Chame, also
known as Sammy,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-70-3


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Samuel Pineda Pineda appeals his sentence following his guilty plea
conviction for conspiracy to possess with intent to distribute a controlled
substance. At the beginning of Pineda’s sentencing hearing, he moved to allow
an attorney retained by him to substitute for his appointed counsel and for a
continuance of the sentencing hearing to allow the new attorney time to prepare.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 12-40077    Document: 00511927180      Page: 2    Date Filed: 07/19/2012

                                  No. 12-40077

Pineda first contends that the district court’s denial of those motions violated his
right to counsel of choice.
      The Sixth Amendment right to counsel has “long been construed to include
a criminal defendant’s qualified right to retain counsel of the defendant’s own
choosing.” United States v. Hughey, 147 F.3d 423, 428 (5th Cir. 1998). The right
to counsel of choice is not absolute, and a court retains wide latitude in balancing
that right against the needs of fairness and the demands of its calendar. United
States v. Gonzalez-Lopez, 548 U.S. 140, 151-52 (2006); Morris v. Slappy, 461 U.S.
1, 11-12 (1983); Hughey, 147 F.3d at 429-32. “[T]rial courts must necessarily be
wary of last minute requests to change counsel lest they impede the prompt and
efficient administration of justice.” McQueen v. Blackburn, 755 F.2d 1174, 1178
(5th Cir. 1985) (internal quotation marks and citation omitted). A district court’s
erroneous deprivation of the right to counsel of choice constitutes structural
error that is not subject to harmless-error analysis. Gonzalez-Lopez, 548 U.S.
at 150-52.
      In denying Pineda’s motions, the district court reasoned that they were not
made until the day of the sentencing hearing, the newly retained attorney was
not prepared to proceed without a continuance, the case had been going on for
“a very long time” already, Pineda presented no basis why his appointed counsel
would not be suitable to proceed at the sentencing hearing, there would be a
disruption to the Government given its arrangements for the appearance of
witnesses and preparation for the hearing, and there would be a disruption to
the court’s docket given that the court had set aside the entire afternoon in
preparation for the lengthy sentencing hearing. Based on our review of the
record, the district court did not exceed the wide latitude afforded to it in
balancing Pineda’s limited right to counsel of his choice against the burdens of
a continuance. See Gonzalez-Lopez, 548 U.S. at 151-52; Slappy, 461 U.S. at
11-12; Hughey, 147 F.3d at 429-32.



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      Case: 12-40077   Document: 00511927180   Page: 3   Date Filed: 07/19/2012

                                  No. 12-40077

         Pineda also challenges the assessment of the three-level enhancement
under U.S.S.G. § 3B1.1(b). After hearing the testimony of four witnesses at
Pineda’s sentencing hearing, the district court imposed the enhancement based
on its finding that Pineda was a manager or supervisor in a criminal activity
that involved five or more participants. That finding is reviewed for clear error.
See United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006). Based on the record
as a whole, such a finding was plausible and therefore not clearly erroneous. See
id.
         AFFIRMED.




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