           Case: 18-10702   Date Filed: 10/30/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10702
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:14-cr-00268-SCJ-RGV-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MARCUS ANTHONY BARNES,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (October 30, 2018)

Before NEWSOM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      Marcus Barnes appeals his convictions and sentences for distribution of

cocaine in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(B)(ii), possession of a

firearm during the commission of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A)(i), possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1), and possession of an unregistered firearm in violation of 26

U.S.C. § 5861(d). On appeal, Barnes asserts that the district court violated his

Sixth Amendment right to choose his own counsel when it denied his request for a

continuance to substitute counsel the morning of his first day of trial. After careful

review, we affirm.

      We review the denial of a request for a trial continuance for abuse of

discretion. United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000). “A

district court abuses its discretion if it applies an incorrect legal standard, applies

the law in an unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly erroneous.”

United States v. Jimenez-Antunez, 820 F.3d 1267, 1270 (11th Cir. 2016) (quoting

United States v. Toll, 804 F.3d 1344, 1353 (11th Cir. 2015)). We will only reverse

a district court’s decision under the abuse-of-discretion standard if there was clear

error. United States v. Campbell, 491 F.3d 1306, 1310 (11th Cir. 2007). The

denial of a criminal defendant’s choice of counsel is a structural error that is not




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subject to harmless error review. United States v. Gonzalez-Lopez, 548 U.S. 140,

148–50 (2006).

      The Sixth Amendment guarantees a criminal defendant’s right to select the

counsel of his choice and includes a defendant’s right to discharge retained

counsel. Jimenez-Antunez, 820 F.3d at 1270–71. This right, however, is not

absolute but “must bend before countervailing interests involving effective

administration of the courts.” Id. at 1270 (quoting Birt v. Montgomery, 725 F.2d

587, 593 (11th Cir. 1984) (en banc)). A court should allow a defendant to

substitute counsel so long as the substitution does not interfere with the “fair,

orderly, and effective administration of the courts.” Id. at 1270–71 (quoting

United State v. Koblitz, 803 F.2d 1523, 1528 (11th Cir. 1986)). Importantly, a

district court has “wide latitude” in balancing a defendant’s right to choose his own

counsel “against the needs of fairness” and “the demands of its calendar.”

Gonzalez-Lopez, 548 U.S. at 152. We have identified six factors to consider when

deciding whether the denial of a continuance to obtain substitute counsel violated a

defendant’s constitutional rights:

      (1) the length of the delay, (2) whether the counsel who becomes
      unavailable for trial has associates adequately prepared to try the case,
      (3) whether other continuances have been requested and granted,
      (4) the inconvenience to all involved in the trial, (5) whether the
      requested continuance is for a legitimate reason, and (6) any unique
      factors.

Bowe, 221 F.3d at 1190.
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      Here, the district court did not abuse its discretion when it denied Barnes’s

request for a continuance to substitute counsel. Barnes requested new counsel as

the trial was set to begin―after the district court had previously granted six

continuances and had specifically cautioned him (repeatedly) to use the last

continuance (granted three weeks earlier) as an opportunity to obtain new counsel.

Under the circumstances, the court―which had “wide latitude” to deny Barnes’s

request in order to balance “the needs of fairness” and to meet “the demands of its

calendar”―did not abuse its discretion because granting the request would have

disrupted the “fair, orderly, and effective administration” of the court.

Gonzalez-Lopez, 548 U.S. at 152; Jimenez-Antunez, 820 F.3d at 1270–71.

      Additionally, the Bowe factors weigh heavily against Barnes because (1)

granting a continuance for Barnes to obtain a new attorney would have caused an

unknown delay, (2) there was no other attorney prepared to try the case if Barnes

discharged his retained counsel, (3) the court had already granted Barnes’s six

prior requests for continuances, (4) allowing the continuance would have greatly

inconvenienced the government and its witnesses because they had already

reorganized their schedules to attend the trial after agreeing to the immediately

preceding continuance, (5) Barnes did not have a legitimate reason to request

additional time to substitute counsel, as he was specifically instructed to use the

last continuance to do just that, and (6) there are no other unique factors that would


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tip the scale in Barnes’s favor. See Bowe, 221 F.3d at 1190. Finally, Barnes’s

assertion that a denial of his right to choose his counsel automatically constitutes

structural error is incorrect. That right, as we have explained, is not absolute but

rather, in certain cases, “must bend before countervailing interests involving

effective administration of the courts.” Jimenez-Antunez, 820 F.3d at 1270. This

is one of those cases. Accordingly, the district court did not abuse its discretion

when it denied Barnes’s request for a continuance to substitute counsel.

      AFFIRMED.




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