     Case: 15-11185   Document: 00513719195        Page: 1   Date Filed: 10/14/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 15-11185                           FILED
                                                                    October 14, 2016

UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
                                                                           Clerk

             Plaintiff - Appellee

v.

VAN ALLEN SMITH,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Van Allen Smith was serving a 60-month term of supervised release
when he physically assaulted his ex-girlfriend. An assistant public defender
represented Smith in the resulting revocation proceeding. On the morning of
his revocation hearing, Smith asked the district court to continue the hearing
so that he could obtain private counsel—specifically, an attorney he met only
the day before and had not yet hired. Believing that Smith’s request was
merely a delay tactic, the district court denied his motion to continue and
ultimately revoked his term of supervised release, sending Smith back to
prison for 50 months. Because the district court did not clearly abuse its
discretion in denying the continuance, we affirm.
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                                 No. 15-11185
                                       I.
      On August 1, 2014, Smith began a 60-month term of supervised release
as part of his sentence for a 2007 drug trafficking conviction. On July 28, 2015,
Smith assaulted his ex-girlfriend; video footage shows Smith chasing her as
she tries to run away, dragging her along the ground, and covering her nose
and mouth with his hands. The victim screams for help throughout their
encounter.
      Smith was later charged with violating the conditions of his supervised
release by committing another offense—“Assault/Family Violence/Impede
Breath-Circulation” under Texas law. Represented by an assistant public
defender, Smith initially appeared before the Northern District of Texas court
on November 10, 2015. At his initial appearance, the court notified Smith of
his detention hearing, scheduled for November 13, and his revocation hearing,
scheduled for November 19.       On November 13, the court ordered Smith
detained until the revocation hearing six days later.
      On the morning of Smith’s revocation hearing, a private criminal defense
attorney notified the assistant public defender that Smith’s family wanted to
hire him as Smith’s counsel. At the revocation hearing, the assistant public
defender asked the court to continue the hearing so that Smith could formally
retain private counsel.       The Government opposed any continuance,
emphasizing that three witnesses were present to testify—one of whom was
the victim, reluctantly testifying under subpoena.           According to the
Government, the victim had also received “unwelcome contact from [Smith’s]
family and friends regarding the hearing.”
      In support of his motion to continue, Smith explained that he met a new
attorney in jail the previous day upon another inmate’s recommendation.
Smith said he was dissatisfied with his existing counsel because she had
argued with his mother and made a mistake in an earlier proceeding,
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                                   No. 15-11185
prompting the presiding judge to correct her. When the court described the
idea of hiring a new attorney as “kind of . . . happenstance,” Smith agreed, but
emphasized that he had only a week to prepare for his revocation hearing. The
court noted that it was unclear from Smith’s “on the fly” conversation with
another attorney whether he had actually hired new counsel or could even
afford to do so. Believing Smith’s representations were “an 11th hour tactic”
to delay his revocation hearing, the court denied his motion to continue. The
district court ultimately found that Smith violated the conditions of his
supervised release, revoked his term of supervised release, and sentenced him
to 50-months imprisonment.
      Smith now appeals the district court’s judgment. Smith first argues that
a criminal defendant is entitled to his counsel of choice during revocation
proceedings. Smith next argues that the district court abused its discretion in
refusing to continue his revocation hearing so that he could retain his desired
counsel.
                                       II.
      We review the denial of a criminal defendant’s motion to continue to
obtain counsel of choice for “clear abuse of discretion.” United States v. Silva,
611 F.2d 78, 79 (5th Cir. 1980).
                                       III.
      Without deciding whether a criminal defendant has a right to counsel of
choice at a revocation hearing, we conclude that, even if Smith did have that
right, the district court did not clearly abuse its discretion by denying his
motion to continue.
      Rule 32.1 of the Federal Rules of Criminal Procedure requires the court
to inform a defendant facing potential revocation of his right to retain counsel
or to request appointed counsel if he cannot obtain counsel on his own. Fed. R.
Crim. P. 32.1(b)(2)(D). Notably, because a revocation proceeding is “not a part
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                                  No. 15-11185
of the criminal prosecution,” see Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973),
“the full panoply of rights due a defendant during the criminal prosecution does
not apply to revocation,” United States v. Hodges, 460 F.3d 646, 651 (5th Cir.
2006) (alteration and ellipsis omitted) (quoting Morrissey v. Brewer, 408 U.S.
471, 480 (1972)).
      Even if a defendant’s right to counsel at revocation were coextensive with
the right to counsel guaranteed by the Sixth Amendment, a defendant is not
absolutely entitled to his counsel of choice. See Wheat v. United States, 486
U.S. 153, 159 (1988) (“[T]he essential aim of the [Sixth] Amendment is to
guarantee an effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the lawyer whom he
prefers.”). In the Sixth Amendment context, “last minute requests” to retain
new counsel are not only “disfavored,” United States v. Silva, 611 F.2d 78, 79
(5th Cir. 1980), but also routinely denied, see, e.g., Newton v. Dretke, 371 F.3d
250, 256 (5th Cir. 2004) (collecting cases).
      Here, Smith moved to continue his revocation hearing on the morning of
the proceeding.     His stated reason was a desire to retain private counsel
because he was unsatisfied with his court-appointed public defender after she
misspoke at an earlier hearing and argued with his mother. But Smith had
not yet retained new counsel; his family only “thought of retaining” another
attorney on his behalf. Smith conceded that the “idea” of retaining another
attorney was “kind of . . . happenstance.” The Government, by contrast, was
ready to proceed. Three witnesses were present to testify, including the victim,
who had to be subpoenaed and can be seen in the video footage of the assault
to be fearful of Smith. On these facts, the district court did not clearly abuse
its discretion by denying the continuance.
      We therefore AFFIRM the judgment of the district court.


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