     Case: 10-31240     Document: 00511911914         Page: 1     Date Filed: 07/06/2012




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

                                                                            FILED
                                                                            July 6, 2012

                                       No. 10-31240                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

RANDEL J. MASON,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:09-CR-343-1


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        We sua sponte withdraw our prior opinion, United States v. Mason, 668
F.3d 203 (2012), and substitute the following:
        Randel Mason appeals his conviction for wire fraud and his sentence of 30
months’ imprisonment and $757,792.20 in restitution. He argues that the
district court committed plain error by failing to advise him during his guilty
plea colloquy of his right to court-appointed counsel if financially eligible, as
required by Rule 11 of the Federal Rules of Criminal Procedure. He also argues

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 10-31240

that the district court violated his Sixth Amendment right to choice of counsel
by denying his motion to substitute appointed counsel for his retained counsel.
We AFFIRM Mason’s conviction, but REMAND for the district court to
determine, pursuant to 18 U.S.C. § 3006A(c), whether Mason should have been
appointed counsel for sentencing, and if so, for re-sentencing.
                                       I.
      Mason is a building contractor and the former owner of Mason
Construction Company, Inc., which built residential homes.                 Mason
Construction built homes in five to seven stages. Upon completion of each
stage, Mason Construction submitted a draw on its line of credit to its financing
company, National City Mortgage (now PNC Mortgage). To receive these
draws, Mason Construction submitted a completion certification and an
inspection certification signed by an independent inspector.
      The conduct relevant to Mason’s conviction involved Mason and his long-
time office assistant and co-defendant, Tammy Dixon. In August 2005, Mason
and Dixon crossed the line, submitting false documentation to National City
Mortgage. By this scheme, Mason and Dixon fraudulently obtained $825,943.60.
In December 2009, Mason and Dixon were charged with conspiracy to commit
wire fraud, in violation of 18 U.S.C. §§ 371 and 1343, and twenty-nine counts of
wire fraud, in violation of 18 U.S.C. § 1343.
      Mason made his initial appearance before the magistrate judge on
January 11, 2010, with retained counsel, David Williams. On April 12, 2010,
Williams filed a motion to withdraw as counsel, which the magistrate judge
denied on April 14. Thereafter, Mason appeared before the district court with
Williams on the morning of June 3, 2010, to enter a guilty plea. The district
court, however, continued the hearing until that afternoon after Mason said he
was confused about the plea. The district court reconvened the hearing that
afternoon, but had to reschedule it until June 23, 2010, because after the

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                                  No. 10-31240

district court clarified the maximum possible sentence under the plea
agreement, Mason indicated that he did not know what to do in light of more
fully understanding the consequences of his plea. Before the conclusion of that
hearing, Mason indicated that he intended to plead guilty because he did not
think he could afford a long trial:
            THE DEFENDANT: I’m sorry, but I — I don’t mean to waste
      the Court’s time. I just really don’t know what to do.
            THE COURT: You’re not wasting anybody’s time. That’s
      what I'm paid to do. And I don’t do piecework, so I want you to be
      absolutely comfortable and assured of what you’re doing. So we’ll
      just put this off to another time.

            ....

             THE DEFENDANT: Your Honor, I don’t mean to . . . But no
      one ever interviewed me, and no one ever heard my side of the
      story. But yet, you know, I don’t want to go to jail or — you know,
      I mean, I have a serious problem with this because I didn’t create
      this problem.
             THE COURT: Well, that’s — then do not plead guilty. If you
      —
             THE DEFENDANT: But I can’t afford a long trial.
             THE COURT: Well, I’m not sure how long the trial will be.
             Let’s tentatively set this for 10:00 on June 23, at which time
      you can make up your mind what you wish to do. Okay?

      Although Mason did not enter a guilty plea on June 3, he did file a
document entitled “Understanding of Maximum Penalty and Constitutional
Rights” (Understanding of Constitutional Rights), which he had signed on April
30, 2010. In that document, Mason averred that he understood his “right to be
represented by counsel (a lawyer) of [his] choice, or if [he could not] afford
counsel, [his] right to be represented by court-appointed counsel at no cost to
[him].”
      On June 17, 2010, Williams filed a second motion to withdraw as Mason’s
counsel, citing a breakdown in his ability to communicate with Mason that, he

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                                No. 10-31240

asserted, rendered effective representation impossible. The district court did
not rule on this motion until the hearing on June 23, 2010. At that hearing the
district court asked Mason about his relationship with Williams.        Mason
responded that he was now satisfied with Williams:


            THE COURT: You were originally scheduled for a guilty plea
      today, but I gather you want to change attorneys?
            THE DEFENDANT: No, sir. Mr. Williams and I have spent
      quite a long time this week. I think I have a better feel now for
      what’s going on.
            THE COURT: All right. So tell me; are we now agreed that
      Mr. Williams can represent you?
            THE DEFENDANT: Yes, sir.
            THE COURT: You’re sure you’re satisfied with that?
            THE DEFENDANT: Yes, sir, I’m satisfied.

Before accepting Mason’s guilty plea, the district court again sought and
received   Mason’s assurance     that he    was satisfied    with Williams’s
representation:

             THE COURT: . . . All right. Mr. Mason, let’s talk frankly.
      This is the point at which I usually ask: Have you had all the time
      that you need to discuss this with your lawyer?
             THE DEFENDANT: Yes, sir.
             THE COURT: You have? Are you sure you have?
             THE DEFENDANT: Yes, sir.
             THE COURT: And you are satisfied with him as a lawyer?
             THE DEFENDANT: Yes, sir.
             THE COURT: Are you sure, because — tell me about why,
      how you came back to believing he was a good lawyer for you.
             THE DEFENDANT: I never thought he wasn’t a good lawyer.
      I just was confused. I mean, we came in with one plea agreement
      and then I guess I got blindsided with another one, and I didn’t
      quite understand the consequences. And we just really weren’t
      communicating very well.
             THE COURT: But you are now?
             THE DEFENDANT: Yes, sir. He sat down and we talked at
      length, and I think I understand, yes, sir.

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                                  No. 10-31240

            THE COURT: Are you sure you understand what’s
      happening?
            THE DEFENDANT: Yes, sir.
            THE COURT: And you are sure that you want to keep Mr.
      Williams?
            THE WITNESS [sic]: Yes, sir.

The district court then proceeded to conduct the plea-taking ceremony required
by Rule 11 of the Federal Rules of Criminal Procedure. However, the district
court did not orally advise Mason of the right of a financially eligible defendant
to have court-appointed counsel represent him at trial and every other stage of
the proceedings. Mason pleaded guilty to counts 6 and 27. The district court
accepted Mason’s plea.
      On August 20, 2010, Mason filed a letter requesting “the court to appoint
an attorney who can help me.” Mason explained that he was “not working well
with . . . Williams on [his] sentencing hearing” and that he was confident that
“Williams [did] not want to spend too much time with [him] because of [his]
inability to pay promptly.” Almost a month later, the district court denied
Mason’s request without reasons.
      The district court sentenced Mason on November 18, 2010. According to
the calculations in Mason’s Presentence Investigation Report (PSR), Mason’s
guidelines sentencing range was 27 to 33 months. After a lengthy hearing on
the amount of loss caused by Mason’s fraud, the district court adopted the PSR’s
calculations, and sentenced Mason to 30 months’ imprisonment on each count,
to run concurrently. The district court ordered Mason to pay $757,792.20 in
restitution to the victim mortgage company. The district court also imposed a
three-year term of supervised release for each count, to run concurrently.
      After filing a timely notice of appeal, Williams filed a motion to withdraw
and to have counsel appointed to represent Mason on appeal. Mason then filed
a financial affidavit under seal. The district court determined that Mason was

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                                  No. 10-31240

financially unable to retain counsel, granted Williams’s motion to withdraw,
and ordered that counsel be appointed to represent Mason.
                                        II.
A. Mason’s Challenge to his Guilty Plea
      Mason first asks us to overturn his guilty plea. He argues that the
district court committed reversible error by failing to advise him of his right to
court-appointed counsel, if financially eligible, during his guilty plea colloquy,
as required by Fed R. Crim. P. 11(b)(1)(D).
      Because Mason did not raise this issue in the district court, we review for
plain error. Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights
may be considered even though it was not brought to the court’s attention.”);
United States v. Vonn, 535 U.S. 55, 59 (2002). Mason therefore bears the
burden of proving (1) error, (2) that is plain, and (3) that affects his substantial
rights. United States v. Olano, 507 U.S. 725, 733–34 (1993). If Mason satisfies
the first three prongs of the plain error analysis, we proceed to the fourth prong,
which affords us “the discretion to remedy the error—discretion which ought to
be exercised only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423,
1429 (2009) (internal quotation marks omitted).
      We need not decide whether the district court erred in not advising Mason
of his right to court-appointed counsel because any error did not affect Mason’s
substantial rights. To show that the omitted advice affected his substantial
rights Mason “must show a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004). Mason’s strongest evidence is his exchange with the district court
at his June 3, 2010 hearing. After deciding not to plead guilty, Mason lamented
to the district court that “no one ever interviewed me, and no one ever heard my


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                                   No. 10-31240

side of the story. But yet, you know, I don’t want to go to jail or—you know, I
mean, I have a serious problem with this because I didn’t create this problem.”
After the district court responded, “then do not plead guilty,” Mason objected,
“But I can’t afford a long trial.” As Mason would have it, this statement
definitively proves that he would have decided to proceed to trial right then and
there if only he could have afforded trial counsel. This interpretation would,
indeed, be quite powerful if the only record evidence were the transcript of the
June 3 hearing.       But the remainder of the record precludes Mason’s
interpretation.
      Most fatal to Mason’s position, the record reveals that Mason was aware
of his right to appointed trial counsel notwithstanding the district court’s error.
More than a month before his first attempt to plead guilty, Mason signed the
Understanding of Constitutional Rights document, a simple document, with
barely over a page of double-spaced text, that plainly states that he understood
his right to a court-appointed attorney if he could not afford his own. By
affixing his signature to that document, Mason “state[d] that I understand
. . . [m]y right to be represented by counsel (a lawyer) of my choice, or if I cannot
afford counsel, my right to be represented by court-appointed counsel at no cost
to me.” Mason’s retained attorney also signed the document. Recognizing the
difficulty that this document poses for his position, Mason argues that although
the document reflects his understanding of his right to court-appointed counsel
for his guilty plea hearing, it does not demonstrate that he was aware of his
right to appointed trial counsel. He asserts that this was his understanding
given that the document “was prepared in connection with a plea hearing” and
nowhere explicitly states that the right to appointed counsel extends to trial.
We are unconvinced. Mason could not have reasonably read the document as
referring to his right to appointed counsel only in connection with his guilty


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                                 No. 10-31240

plea, and not trial, because the other constitutional rights he acknowledged in
that document pertain to trial, not his guilty plea.
      Moreover, there are many indications in the record that Mason’s guilty
plea was voluntary. Before accepting Mason’s plea on June 23, 2010, the
district court twice requested and obtained his assurance that he wanted to
plead guilty. At the hearing, Mason twice indicated that he understood what
was occurring. The district court found him competent to enter his plea. And
although Mason had previously expressed dissatisfaction with Williams, his
attorney, he repeatedly reassured the district court before pleading guilty that
he was happy with Williams representing him, and was sure he wanted to keep
him as his lawyer. The following conversation is illustrative:
             THE COURT: And you are satisfied with [Williams] as a
      lawyer?
             THE DEFENDANT: Yes, sir.
             THE COURT: Are you sure, because — tell me about why,
      how you came back to believing he was a good lawyer for you.
             THE DEFENDANT: I never thought he wasn’t a good lawyer.
      I just was confused. I mean, we came in with one plea agreement
      and then I guess I got blindsided with another one, and I didn’t
      quite understand the consequences. And we just really weren’t
      communicating very well.
             THE COURT: But you are now?
             THE DEFENDANT: Yes, sir. He sat down and we talked at
      length, and I think I understand, yes, sir.
             THE COURT: Are you sure you understand what’s
      happening?
             THE DEFENDANT: Yes, sir.
             THE COURT: And you are sure that you want to keep Mr.
      Williams?
             THE WITNESS [sic]: Yes, sir.

      Given that Mason knew about his right to appointed counsel from the
Understanding of Constitutional Rights document, and that he unequivocally
reiterated that his plea was voluntary and that he was satisfied with his


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                                  No. 10-31240

attorney, we conclude that there was no “reasonable probability that, but for the
error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83.
To be sure, in a perfect world the district court would have responded to
Mason’s statement that he could not afford a long trial by advising him of his
right to court-appointed counsel. Nonetheless, Mason understood his right to
have a lawyer appointed and repeatedly asserted that he wanted to plead guilty
and that he was satisfied with Williams’s representation. The district court’s
Rule 11 error did not, therefore, affect Mason’s substantial rights. Mason’s
conviction must stand.
B. Mason’s Right to Appointed Counsel at Sentencing
      Mason next argues that the district court violated his Sixth Amendment
right to choice of counsel by denying his request to have counsel appointed to
represent him at sentencing. We need not reach this claim because we conclude
that the district court failed, pursuant to the Criminal Justice Act of 1964
(CJA), 18 U.S.C. § 3006A(c), to make an “appropriate inquiry” into Mason’s
financial eligibility for appointed counsel. On remand, Mason may obtain the
relief he seeks under that statute. Although Mason did not specifically request
relief under the CJA, it is a familiar and time-honored prudential rule that
federal courts “will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which
the case may be disposed of.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288,
347 (1936) (Brandeis, J., concurring); accord Ramsay v. Bailey, 531 F.2d 706,
707 (5th Cir. 1976) (“However novel and interesting may be these constitutional
claims, it is our duty to decide this case on other grounds if possible.”).
      The CJA provides, in relevant part, that “[i]f at any stage of the
proceedings . . . the court finds that the [defendant] is financially unable to pay
counsel whom he had retained, it may appoint counsel . . . as the interests of


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                                   No. 10-31240

justice may dictate.” 18 U.S.C. § 3006A(c). Appellate review of a district court’s
determination of financial eligibility for mid-case appointment under § 3006A(c)
requires a three-part inquiry: (1) Did the district court conduct an “appropriate
inquiry” into the defendant’s financial eligibility? (2) If so, was the district
court’s eligibility conclusion correct? (3) If the inquiry was appropriate and the
eligibility determination correct, did the district court err in weighing the
“interests of justice”? United States v. Parker, 439 F.3d 81, 92–93 (2d Cir. 2006);
see also United States v. Haas, 623 F.3d 1214, 1221 (8th Cir. 2010); United States
v. Rivera-Corona, 618 F.3d 976, 981-82 (9th Cir. 2010).
      Here, the district court did not make an “appropriate inquiry” into Mason’s
financial eligibility. Under our precedent, “it is incumbent upon the defendant
to notify the court of his desire to have counsel appointed.” United States v.
Foster, 867 F.2d 838, 841 (5th Cir. 1989). Mason did just that in his letter of
August 20, 2010.       Thereupon, the CJA “require[d] the court to make an
appropriate inquiry into the defendant’s financial status.” Id. The record
indicates only that the district court summarily denied Mason’s request. That
is not enough to satisfy us that the district court made an appropriate inquiry,
especially in light of the fact that Mason, in his letter requesting a court-
appointed attorney, expressed concern that his retained attorney, “Williams[,
did] not want to spend too much time with [him] because of [his] inability to pay
promptly” (emphasis added). Cf. United States v. Moore, 671 F.2d 139, 140–41
(5th Cir. 1982) (holding that the district court abused its discretion in not
“pursu[ing] further the matter of financial need for the appointment of counsel”
where facts in the record put the district court on notice that the defendant could
not afford counsel).
      If, on remand, the district court determines that Mason was financially
eligible for appointed counsel, it must determine whether the “interests of
justice” dictated the appointment of new counsel.         If the district court so

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                                 No. 10-31240

determines, it should appoint counsel to represent Mason at a new sentencing
hearing.
                                      III.
 We AFFIRM Mason’s conviction, but REMAND for the district court to
determine, pursuant to 18 U.S.C. § 3006A(c), whether Mason should have been
appointed counsel for sentencing, and if so, for re-sentencing.




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                                 No. 10-31240

REAVLEY, Circuit Judge, dissenting:


      I would affirm. The record of this trial will not justify this worthless and
burdensome procedure.
      After the prior experience over the defendant’s representation, the district
judge is faulted for not conducting a hearing when the defendant writes a letter
saying he wants more time with a lawyer. Then the court here sends the case
back for a hearing about what he could (or should) have done despite now
knowing that justice was served by retained counsel continuing to represent the
defendant without any question or objection from anyone. That unnecessarily
burdens this judge and impairs the work of other trial judges who serve justice
but need not respond in full every time a defendant writes a letter.
