     Case: 15-30429      Document: 00513798637         Page: 1    Date Filed: 12/15/2016




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

                                    No. 15-30429                              FILED
                                  Summary Calendar                    December 15, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALWYN NORD STEWART, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CR-257-1


Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
       Alwyn Nord Stewart, Jr., appeals his guilty plea conviction and sentence
for conspiracy to possess with intent to distribute methamphetamine,
challenging specifically the denial of his pretrial motion to dismiss his counsel,
Stephen Glassell, and to appoint new counsel in his stead. 1 According to the
relevant motion, Glassell told Stewart that he would not work for a “dope


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

       1Glassell was Stewart’s third attorney in the court below. Stewart’s previous two
attorneys had withdrawn–one at counsel’s request and the other at Stewart’s request.
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                                  No. 15-30429

dealer” and that he instead worked “for the state[,] negro.” Stewart contends
that the level of hostility exhibited by Glassell’s remarks raises serious
questions about his loyalty to Stewart that, in turn, cast doubt on the
correctness of the district court’s denial of the motion appoint new counsel. He
seeks remand to allow the district court to make factual findings with respect
to the truth of his allegations against Glassell.
      The Sixth Amendment does not guarantee indigent defendants a right
to appointed counsel of their choosing. United States v. Mitchell, 709 F.3d 436,
441 (5th Cir. 2013). A district court “is constitutionally required to provide
substitute counsel only if there is a substantial conflict or problem affecting
the ability to represent the defendant.” Id. A substantial conflict or problem
exists where there is “a conflict of interest, a complete breakdown in
communication or an irreconcilable conflict which led to an apparently unjust
verdict.”   Id. (internal quotation marks and citation omitted).             Where
appointment of new counsel is not mandatory, a district court abuses its
discretion if it fails to inquire into a “seemingly substantial complaint about
counsel” and the court “has no reason to suspect the bona fides of the
defendant” or if the court refuses to replace counsel with whom it finds the
defendant is justifiably dissatisfied. United States v. Young, 482 F.2d 993, 995
(5th Cir. 1973) (citation omitted).
      Contrary to Stewart’s contention, the record before the district court
sufficed to allow it to adequately appraise the nature of the alleged conflict of
interest and its potential impact on Glassell’s ability to represent Stewart. See
United States v. Fields, 483 F.3d 313, 352 (5th Cir. 2007). That evidence
refutes Stewart’s allegation that Glassell was, purportedly by his own
admission, working on the Government’s behalf and not his. In addition to
having filed largely fruitful pretrial motions on behalf of Stewart, Glassell



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                                 No. 15-30429

successfully counseled Stewart to accept a favorable plea agreement that
assured him a maximum sentence of 20 years instead of the mandatory life
sentence he faced if he proceeded to trial. There is simply no evidentiary basis
for finding that Glassell was laboring under a conflict of interest, and Stewart
has not shown that the district court would have, to that end, “learned
anything material from [greater] inquiry.” Fields, 483 F.3d at 352. As the
record offered no basis for dismissing Glassell as counsel, the district court’s
election not to inquire further into Stewart’s allegations was not reversible
error. Id. at 352-53.
      However, even if the district court should have inquired further into
Stewart’s complaint, reversal is unwarranted because “the record as a whole
reflects that [Stewart’s] claim was insubstantial and that he received vigorous
and able representation at trial.” Young, 482 F.2d at 995-96. Nothing in the
record suggests a breakdown of the adversarial process. See United States v.
Wild, 92 F.3d 304, 307 (5th Cir. 1996). By going to trial, Stewart faced a
mandatory life sentence as well as strong evidence of guilt. That he was able
to plead guilty to a maximum sentence of 20 years refutes his argument that
Glassell failed to zealously advocate on his behalf.
      Stewart fails to show that, as a result of Glassell’s alleged remarks, there
existed “a conflict of interest, a complete breakdown in communication or an
irreconcilable conflict which led to an apparently unjust verdict.” Mitchell, 709
F.3d at 441 (internal quotation marks and citation omitted). Nor does he
“demonstrate how substitute counsel could have performed any differently
under the circumstances.” Id. Therefore, the district court did not abuse its
discretion in denying his motion to appoint new counsel, even to the extent it
did so without making a specific factual finding or inquiring further about
Stewart’s allegations against Glassell. See id.; Young, 482 F.2d at 995. The



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                               No. 15-30429

judgment of the district court is therefore AFFIRMED.




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