     Case: 11-40742   Document: 00511932158    Page: 1   Date Filed: 07/24/2012




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

                                                                  FILED
                                                                 July 24, 2012

                                  No. 11-40742                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee
v.

JUAN DIAZ GARCIA,

                                            Defendant-Appellant



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


Before DAVIS, OWEN and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        Juan Garcia pled guilty to illegal reentry. Before sentencing, he filed a
motion under 18 U.S.C. § 3006A(c) for an additional court-appointed attorney
to seek to have a prior state felony conviction set aside in an Iowa court. The
prior Iowa conviction lengthened the advisory sentencing range for the illegal
reentry offense. The district court determined the purpose would not be an
appropriate use of Criminal Justice Act funds. We AFFIRM.
                                 BACKGROUND
        The Criminal Justice Act (“CJA”) creates a system for the appointment
and payment of counsel for defendants unable to afford representation. See 18
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                                      No. 11-40742

U.S.C. § 3006A. At issue here is subsection (c) which concerns the ability of
district courts to appoint counsel in federal criminal prosecutions.
       Juan Garcia is a Mexican national who, after having his permanent-
resident status revoked, was deported to Mexico on July 1, 2009. He was later
indicted for being found illegally in the United States. See 8 U.S.C. § 1326. To
assist with his defense to this charge, he was appointed a CJA attorney under
Section 3006A. With the benefit of that counsel, Garcia agreed to plead guilty.
       A Pre-sentence Investigation Report was prepared. It showed that on
September 4, 2008, Garcia had pled guilty in an Iowa state court to delivery of
cocaine. This prior offense added 12 levels to his base offense and enhanced his
Criminal History Category from I to III. See U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(B); § 4A1.1(b) & (d).1 This resulted in a sentencing range of 33 to
41 months. Without the Iowa offense it would have been between zero and six
months. The district court imposed a sentence of 30 months.
           Before sentencing, Garcia requested appointment of an attorney in Iowa
under Section 3006A(c). He alleged that his prior Iowa counsel had not complied
with the duty to advise him that a guilty plea would have adverse consequences
for his immigration status. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010);
United States v. Amer, 681 F.3d 211, 212 (5th Cir. 2012). Garcia’s current
counsel had contacted Iowa attorneys and believed one “would be willing to
represent [Garcia] in state court to prepare and prosecute a Padilla claim.”
       The district court denied the motion for additional counsel with a written
order assigning reasons. Sentencing then followed. Garcia timely appealed.
                                     DISCUSSION
       We need not determine the validity, either in the Fifth Circuit or in Iowa,
of the kind of petition Garcia wants a new counsel to file. Our different

       1
        Two levels were subtracted for Garcia’s acceptance of responsibility. See U.S.S.G. §
3E1.1(a).

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                                  No. 11-40742

responsibility concerns whether the district court correctly determined that it
should not dedicate funds, allotted for the representation of indigent persons
charged with federal crimes, to hire Iowa counsel in order to pursue state
postconviction relief. While the “decision whether to appoint counsel rests in the
discretion of the district court,” the question of whether an appointment for this
purpose complies with the CJA is a legal issue we review de novo. United States
v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); see United States v. Claro, 579
F.3d 452, 456 (5th Cir. 2009).
      Garcia urges us to consider Sixth Amendment principles. It has long been
the rule, though, that there is no constitutional entitlement to appointed counsel
in postconviction relief proceedings such as those Garcia seeks to pursue in Iowa.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). This continues to be the
Supreme Court’s interpretation of the Amendment, although the Court recently
raised without deciding a possible narrow exception to the rule. See Martinez
v. Ryan, 132 S. Ct. 1309, 1315 (2012). The Sixth Amendment is of no aid here.
      We are interpreting a statute, and thus we start with Congress’s language.
City of Arlington, Tex. v. F.C.C., 668 F.3d 229, 255 (5th Cir. 2012). The relevant
CJA provision states that any “person for whom counsel is appointed shall be
represented at every stage of the proceedings from his initial appearance before
the United States magistrate judge or the court through appeal, including
ancillary matters appropriate to the proceedings.” 18 U.S.C. § 3006A(c). Garcia
argues that “ancillary matters” could include the setting aside of a prior state
conviction that affects the sentence he might receive in the prosecution for which
he has already been assigned CJA counsel.
      Not often have we had to address the meaning of “ancillary.” We rejected
a defendant’s claim that a motion to reduce his sentence under 18 U.S.C. §
3582(c)(2) was an ancillary matter. Whitebird, 55 F.3d at 1011. A more recent
panel questioned whether developments after Whitebird call for a different

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result as to Section 3582 proceedings. United States v. Robinson, 542 F.3d 1045,
1051-52 (5th Cir. 2008).2 Nonetheless, we still find instructive the observation
that “‘ancillary matters’ refers to those involved ‘in defending the principal
criminal charge’ and not to post-conviction proceedings.” Whitebird, 55 F.3d at
1010 (quoting United States v. Reddick, 53 F.3d 462, 464 (2d Cir. 1995)).
       Another circuit has held that state collateral proceedings are not ancillary
because legislative history from the CJA’s passage “suggests that ‘ancillary
matters’ are limited to proceedings comprehended within the action for which
the appointment was made.” In re Lindsey, 875 F.2d 1502, 1508 (11th Cir.
1989). This would include matters such as mental competency hearings, or
efforts to secure the presence of witnesses. Id.
       Definitions from dictionaries convey a similar limitation. One standard
general-purpose dictionary defines “ancillary” as “subordinate, subsidiary.”
Webster’s Third New International Dictionary 80 (1993). A major law dictionary
also defines it using “subordinate.” Black’s Law Dictionary 101 (9th ed. 2009).
An Iowa postconviction proceeding is not subordinate to or a subpart of a federal
criminal prosecution.
       Additional assistance in finding meaning comes from the Guidelines for
Administering the CJA and Related Statutes prepared by the Judicial
Conference of the United States, Guide to Judiciary Policy, Vol. 7, Pt. A. The
Supreme Court has examined these CJA Guidelines when ruling on a motion for
CJA fees. In re Berger, 498 U.S. 233, 234 (1991) (per curiam). The CJA
Guidelines suggest that a court consider, in deciding whether a matter is
ancillary, whether “the issues of law or fact in the matter, arose from, or are the




       2
         We note that the court ultimately declined to decide the issue and instead “assum[ed]
for the sake of argument that this § 3582(c)(2) proceeding is not ancillary to Robinson’s
original criminal case – but rather is collateral.” Robinson, 542 F.3d at 1052.

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same as or closely related to, the facts and circumstances surrounding the
principal criminal charge.” § 210.20.30(b).3
       We conclude that Garcia’s prior state felony conviction is irrelevant to the
principal charge against the defendant in federal court. The potential merit of
a challenge in Iowa state court to a prior conviction does not concern issues of
law or fact related to the illegal reentry charge. The relevant law for the district
court in Texas is a federal criminal statute, while the Iowa proceeding would
concern issues of Sixth Amendment law, the Supreme Court’s retroactivity
doctrine, and perhaps Iowa procedure. See Perez v. Iowa, --- N.W.2d ----, 2012
WL 2052399, at *6, *8 (Iowa June 8, 2012) (discussing Iowa Code Section 822.3).
       We hold that Garcia’s challenge to a prior, unrelated conviction in a state
court that could affect the sentence he receives on a new federal conviction is not
an ancillary proceeding under Section 3006A(c).
       AFFIRMED.




      3
        Once a matter has been determined to be ancillary, the CJA Guidelines provide six
non-exhaustive considerations in deciding whether representation is “appropriate” or not. §
210.20.30(c). Those considerations do not apply here because of our determination that the
purpose of the representation is not ancillary to the federal prosecution.

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