     Case: 15-30198       Document: 00513369962         Page: 1    Date Filed: 02/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-30198                        United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                 February 4, 2016
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

STOKLEY AUSTIN,

               Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before STEWART, Chief Judge, REAVLEY, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
       Defendant-Appellant appeals the district court’s denial of his request for
court appointed counsel under the Criminal Justice Act (CJA) – 18 U.S.C.
§ 3006A(c). He also appeals the district court’s denial of a motion to withdraw
by his retained attorney. 1 Because the district court was not required to make
a financial inquiry under the CJA and the court did not abuse its discretion in
finding good cause did not exist for appointment of new counsel, we AFFIRM.



       1 Austin also argued that his increased mandatory minimum sentence based on an
uncharged prior conviction violated his constitutional rights. This argument, as he
acknowledges, is foreclosed by our precedent. See United States v. Wallace, 759 F.3d 486, 497
(5th Cir. 2014).
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                                       No. 15-30198
                                              I.
       Stokley Austin retained Alden Netterville as his attorney after a grand
jury indicted him on numerous gun and drug charges. 2 Netterville represented
Austin throughout the pretrial stage of the proceedings. Eventually, after three
attempts at a plea, Austin pled guilty to all charges without a plea agreement
on September 22, 2014. 3
       On December 19, 2014, Austin wrote to the district court expressing his
“concern and discontent concerning my representation.” Austin said that
Netterville “failed to file any pre-trial motions on my behalf in preparation for
my defense.” Also, Austin “never received any discovery regarding the 18
U.S.C. 924(c) count in the indictment[,]” and the information Austin “received
relating to the conspiracy count was extremely limited.” Finally, Austin
explained that he was “asking the court to appoint new counsel as [he] has
exhausted all of [his] resources.”
       This letter prompted Netterville to file a motion to withdraw stating:
“allegations contained in [Austin’s] letter. . .make further representation by
[him] untenable.” The district court issued an order that denied Netterville’s
motion to withdraw explaining “discontent with counsel does not warrant
withdrawal.” The order did not address Austin’s request for appointed counsel.




       2  The grand jury indicted Austin on charges of: conspiracy to possess with the intent
to distribute crack cocaine and cocaine hydrochloride – violating 21 U.S.C. § 846; possession
of cocaine hydrochloride with the intent to distribute – violating 21 U.S.C. § 841(a);
possession of a firearm in furtherance of a drug-trafficking offense – violating 18 U.S.C.
§ 924(c); and, being a felon in possession of a firearm – violating 18 U.S.C. § 922(g).
        3 According to Netterville, his final attempt differed because it was not part of a plea

agreement and occurred after the government enhanced his sentencing guidelines range by
filing a bill of information that identified his prior conviction.
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                                      No. 15-30198
       The district court then proceeded to hold a sentencing hearing. 4 At the
hearing, the court again addressed Netterville’s earlier motion to withdraw.
The court stated that it denied the motion “[b]ecause I did not see a basis for
what I would assume [was] any attempt by [Austin] to either withdraw his
guilty plea or to try to change anything regarding that plea.” Furthermore, the
court said: “I already got your letter. Your letter has no basis to have him
withdraw. I’ve already made that decision. If I understand your objections,
they’re rather general.” The court then sentenced Austin within the guidelines
and pursuant to statutory minimums to a total of 300 months, followed by a
ten-year term of supervised release.
       After imposing its sentence, the district court granted a second motion
to withdraw made by Netterville. It then told Austin that he had a right to
appeal, and also had a right to appointed counsel on appeal. Austin timely filed
a notice of appeal, did not file a motion seeking appointment of counsel, and
did not file a motion to proceed in forma pauperis. Instead, he paid the
appellate filing fee in full and retained counsel.
                                           II.
       Austin argues that the district court erred in failing to inquire into his
financial eligibility for appointed counsel under the CJA, and the court erred
in denying counsel’s motion to withdraw because good cause existed. We review
the denial of a request for appointed counsel and a motion to withdraw for
abuse of discretion. 5




       4 At the initial hearing, the court granted a continuance at Netterville’s request.
Netterville explained that he had not reviewed the presentence investigation report with
Austin, because Austin and his wife informed him that they would acquire new counsel.
       5 Nottingham v. Richardson, 499 F. App’x 368, 377 (5th Cir. 2012) (“The denial of

counsel is reviewed for abuse of discretion.”); United States v. Williams, 463 F. App’x 282,
284 (5th Cir. 2012) (citing United States v. Wild, 92 F.3d 304, 307 (5th Cir. 1996)).
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                                       No. 15-30198
                                           III.
       Austin argues that he was entitled to court appointed counsel under the
CJA. The CJA is intended to provide representation for defendants who cannot
afford to retain counsel. 6 In particular, 18 U.S.C. § 3006A(c) states: “if at any
stage of the proceedings…the court finds that the person is financially unable
to pay counsel whom he had retained, it may appoint counsel…as the interests
of justice may dictate.”
       Austin asserts that he made a clear request for appointed counsel
through his letter to the district court. To invoke the CJA, a defendant must
notify the district court of his desire for court appointed counsel. 7 Moreover, in
his request for appointed counsel, a defendant must specify a “financial
inability to obtain counsel.” 8 For example, in United States v. Mason, 480 F.
App’x 329 (5th Cir. 2012), this court held that the defendant made a proper
request for appointed counsel. In a letter to the district court, the defendant
explained that his retained attorney “did not want to spend too much time with
him because of his inability to pay.” 9
       Conversely, here, Austin had already retained counsel and therefore
could not allege that he lacked the funds to obtain a lawyer. Austin does not
state in his letter that he either owed money to Netterville or that he could not
pay Netterville any sum that was owed. Accordingly, Austin did not show that
he was qualified for counsel pursuant to the CJA.



       6 Self v. United States, 574 F.2d 363, 366 (6th Cir. 1978); see also Knaubert v.
Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (“[T]he purpose of § 3006A is to provide for
appointed counsel whenever required by the constitution.”).
      7 United States v. Foster, 867 F.2d 838, 841 (5th Cir. 1989).
      8 Id.
      9 480 F. App’x at 332 (internal brackets omitted); accord United States v. Moore, 671

F.2d 139, 141 (5th Cir. 1982) (noting that the evidence provided by the government and
defendant “laid most of the foundation to establish sufficient evidence for a finding that the
accused could not afford to hire counsel.”).
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                                       No. 15-30198
       Austin also argues that the district court erred in refusing to allow him
to substitute counsel. However, a defendant does not have an absolute right to
the counsel of his choice. 10 Instead, good cause must exist for the withdrawal
of counsel. 11
       Austin made no showing that the district court abused its discretion by
denying Netterville’s motion to withdraw. Austin did not show why the facts
justified counsel filing a pre-trial motion or any specific information that he
expected counsel to provide him for review. Moreover, Austin does not
articulate any conflict of interest which Netterville might have possessed. The
district court was in the best position to evaluate counsel’s performance and
rejected Austin’s argument. Thus, there is no basis for us to determine that the
district court abused its discretion in denying Austin’s motion to replace his
counsel.
                                           IV.
       For these reasons, the judgment of the district court is AFFIRMED.




       10United States v. Paternostro, 966 F.2d 907, 912 (5th Cir. 1992).
       11See Wild, 92 F.3d at 307 (“When filing a motion to withdraw, an attorney should
provide a detailed explanation of the reasons why he believes that ‘good cause’ exists for him
to withdraw as counsel.”); in re Wynn, 889 F.2d 644, 646 (5th Cir. 1989) (“An attorney may
withdraw from representation only upon leave of the court and a showing of good cause and
reasonable notice to the client.”).
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