                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          March 9, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-2016
                                                    (D.C. No. 2:13-CR-03696-RB-3)
MATTHEW MALEY,                                                 (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.
                 _________________________________

       Matthew Maley was charged with conspiracy to distribute 50 grams or more of

methamphetamine in violation of 21 U.S.C. § 846; possession with intent to distribute 50

grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),

and 18 U.S.C. § 2; and possession of a firearm by a felon in violation of 18 U.S.C. §

922(g)(1) and § 924(a)(2). After receiving three trial continuances that extended the start

of trial more than seven months, Mr. Maley filed a fourth motion to continue, claiming he

had hired new counsel who was unavailable during the scheduled trial date. The district

court denied his motion, Mr. Maley proceeded to trial, and he was convicted on all five



       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
counts. He appeals the district court’s denial of his fourth motion for a continuance, and

we affirm.

                                              I.

       Mr. Maley was arrested on December 4, 2013. Jared Abrams and Steven

Almanaza entered their appearances on his behalf on December 6 and December 19,

respectively. The district court scheduled the trial to begin on February 18, 2014, but Mr.

Maley filed an unopposed motion on February 4 to continue trial for sixty days. The

court granted the motion and reset trial for April 14.

       Due to a superseding indictment filed on March 19, the district court reset trial

again, for May 19. On April 23, Mr. Maley joined one of his co-defendants’ unopposed

motion to continue trial for sixty days, which the court granted, resetting trial for July 14.

Leading up to this new trial date, three of Mr. Maley’s co-defendants pled guilty. Mr.

Maley flirted with doing the same but instead on July 14 he filed yet another motion to

continue. The next day, Mr. Almanza and Mr. Abrams filed motions to withdraw as

counsel. The court allowed Mr. Maley seven days to retain a new attorney but denied the

motion to withdraw after Mr. Maley’s efforts proved fruitless. Instead, the court granted

Mr. Maley’s third motion to continue, resetting trial for September 15. In so doing, the

court noted that “[t]he attorney client relationship between Matthew Maley and counsel

has deteriorated” and that “Mr. Maley has expressed that he and his family are actively

seeking new counsel to handle the instant case.” Rec., vol. I at 51. At a status

conference on July 29, Mr. Almanza said that he had been contacted by Mark Resnick, an

attorney based in Tucson, Arizona, who had expressed an intention to enter an

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appearance and was just trying to work things out. At that time, the court warned Mr.

Maley that the trial would go forward in September in any event.

       On September 4, Mr. Abrams told the court that Mr. Maley had hired Mr. Resnick

and that he and Mr. Almanza would remain as local counsel. The court commented that

“[t]his matter has been pending since mid-July on this whole issue of new counsel. And

even as of this morning, we’re just assuming that’s going to happen.” Rec., vol. IV at 4.

Nevertheless, the court reset trial for September 22.

       On September 17, however, Mr. Maley filed his fourth motion to continue the

trial, this time opposed by the government, stating that Mr. Resnick intended to represent

him but he had a jury trial set in Tucson during Mr. Maley’s trial date in New Mexico. In

an attached email, Mr. Resnick said he would need a ninety-day continuance. In this

final motion to continue, Mr. Maley cited United States v. Gonzales-Lopez, 458 U.S. 140,

144 (2006), for the proposition that “a Defendant has a right to choose which counsel

shall represent him and should be afforded a fair opportunity to secure counsel of his own

choice.” Rec., vol. II at 20.

       In its order denying Mr. Maley’s most recent motion to continue, the district court

explained how courts must balance a defendant’s right to retain counsel of choice against

the need to maintain the integrity of the judicial process. Applying the factors we set out

in United States v. Flanders, 491 F.3d 1197, 1216 (10th Cir. 2007), the court succinctly

found the following:

             Consideration of these factors leads the Court to conclude that Mr.
       Maley’s motion should be denied. First, Mr. Maley waited until three
       business days before the trial to file his motion. Over thirty-five witnesses

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       have been notified and the Court has cleared its calendar for the trial.
       Undoubtedly, a continuance would inconvenience the witnesses and the
       Court. Second, this is the fourth request for a continuance. The Court
       granted the defense’s three prior requests for trial continuances. Third, Mr.
       Maley has never explained any reason for his delay in obtaining new
       counsel and he has never suggested a legitimate reason that would warrant
       such a lengthy delay. Fourth, Mr. Resnick has been in contact with current
       counsel and the Government since July 2014, yet he has failed to enter an
       appearance. Fifth, Mr. Almanza and Mr. Abrams are competent attorneys
       who are prepared to try the case. Sixth, Mr. Maley has failed to make a
       case for any material prejudice or substantial harm that would result from
       the denial of his request for a continuance. Seventh, while the trial may be
       lengthy, the charges are not complex. Finally, the facts specific to the case
       are that for two months the Court allowed Mr. Maley free rein to obtain
       new counsel with the only requirement being that he notify the Court of his
       progress, yet to date, on the eve of trial, Mr. Resnick has not entered an
       appearance. All of the factors deemed relevant by the Tenth Circuit weigh
       against Mr. Maley’s request to continue the trial. Accordingly, Defendant’s
       Motion to Continue Trial Set for September 22, 2014 will be denied.

Rec., vol. II at 29-30 (emphasis added).

       Mr. Maley proceeded to trial with Mr. Abrams and Mr. Almanza, was convicted

on all five counts, and now appeals.

                                             II.

       Mr. Maley’s sole argument on appeal is that the district court deprived him of his

constitutional right to counsel of choice by denying his fourth request for a continuance.

We review a district court’s denial of a continuance for abuse of discretion. United States

v. Trestyn, 646 F.3d 732, 739 (10th Cir. 2011).

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

shall enjoy the right to . . . have Assistance of Counsel for his defence.” U.S. Const.

amend. VI. “[A]n element of this right is the right of a defendant who does not require

appointed counsel to choose who will represent him.” United States v. Gonzalez-Lopez,

                                             4
548 U.S. 140, 144 (2006). “‘Attorneys are not fungible;’ often ‘the most important

decision a defendant makes in shaping his defense is his selection of an attorney.’”

United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990) (quoting United States v.

Laura, 607 F.2d 52, 56 (3d Cir. 1979); United States v. Nichols, 841 F.2d 1485, 1502

(10th Cir. 1988)). Not only is a deprivation of this right “complete” at the time of denial,

“regardless of the quality of the representation [the defendant] received,” Gonzalez-

Lopez, 548 U.S. at 148, but it also qualifies as structural error, meaning it is not subject to

harmless-error analysis, id. at 148-149, 152. Thus, “when [a] trial court unreasonably or

arbitrarily interferes with a defendant’s right to counsel of choice . . . a conviction cannot

stand.” United States v. Holloway, 826 F.3d 1237, 1242 (10th Cir. 2016) (quoting United

States v. Mendoza-Salgado, 964 F.2d 993, 1016 (10th Cir. 1992)).

       This right, however, “is not absolute.” United States v. McKeighan, 685 F.3d 956,

966 (10th Cir. 2012). Specifically, in the context of a court’s refusal to grant a

continuance we must “balance[e] the defendant’s ‘constitutional right to retain counsel of

. . . choice against the need to maintain the highest standards of professional

responsibility, the public’s confidence in the integrity of the judicial process and the

orderly administration of justice.’” United States v. Flanders, 491 F.3d 1197, 1216 (10th

Cir. 2007) (alteration in original) (quoting United States v. Mendoza-Salgado, 964 F.2d

993, 1015 (10th Cir. 1992)).

       In striking that balance, we consider whether: 1) the continuance would
       inconvenience witnesses, the court, counsel, or the parties; 2) other
       continuances have been granted; 3) legitimate reasons warrant a delay; 4)
       the defendant's actions contributed to the delay; 5) other competent counsel
       is prepared to try the case; 6) rejecting the request would materially

                                              5
       prejudice or substantially harm the defendant's case; 7) the case is complex;
       and 8) any other case-specific factors necessitate or weigh against further
       delay.

Id.

       As recounted above, the district court evaluated each factor we set out in Flanders

and cogently concluded that Mr. Maley’s motion for a continuance should be denied.

The court clearly did not abuse its discretion in so doing.

       We AFFIRM.


                                              Entered for the Court


                                              Stephanie K. Seymour
                                              Circuit Judge




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