     Case: 10-20344     Document: 00511779790         Page: 1     Date Filed: 03/07/2012




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

                                                                            FILED
                                                                           March 7, 2012

                                       No. 10-20344                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

NORBERTO ADOLIO ROBLES,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:08-CR-00374-1


Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
        We remanded Norberto Robles’s (“Robles”) case for a determination of
whether Robles had full counsel or standby counsel for his sentencing. The
district court found that Robles had standby counsel, but determined that there
had been no violation of Robles’s Sixth Amendment right to counsel. We turn
now to Robles’s appeal of his sentence. We VACATE Robles’s sentence and
REMAND for resentencing.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20344

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Robles pleaded guilty to conspiracy to possess with intent to distribute
cocaine on December 19, 2009. He was sentenced to 120 months’ imprisonment
on May 10, 2010, and proceeded to appeal his sentence on Sixth Amendment
right-to-counsel grounds. See United States v. Robles, 445 F. App’x 771, 776 (5th
Cir. 2011). Robles argued that he had been denied counsel at an April 6, 2010
presentencing conference where his retained counsel withdrew, during the
period leading up to his May 10 sentencing, and at the May 10 sentencing itself.
We rejected Robles’s claims for both the conference and the intervening period
between the conference and sentencing. See id. at 777–81. His sentencing,
however, posed a more challenging problem.
      Robles appeared at his sentencing without counsel, despite his repeated
requests to the district court in the weeks preceding the sentencing that counsel
be appointed. The judge’s solution was to call out to Phillip Gallagher, a federal
public defender who happened to be in the courtroom, to inform him that he had
“just been drafted,” and to ask him “to just stand by perhaps to answer
questions.” Id. at 775. The judge gave Gallagher a very brief overview of the
case. Uncertain of the facts of the case, the contents of the presentence report
(“PSR”), or even what sentence the Government was requesting, Gallagher asked
for and received a twenty-minute continuance “to see whether [Robles] ha[d] any
questions.” Id. at 776. Gallagher was given a copy of the PSR to review and
proceeded to meet with Robles to discuss his sentencing. Robles and Gallagher
returned from their twenty-minute meeting, and the judge asked Robles, “Mr.
Robles, do you want to go ahead with the sentencing today?” Id. Robles
responded, “I don't know what to do, sir. I leave it in the hands of the attorney
who is representing me today,” referring to Gallagher. Id. The judge then
sentenced Robles to the statutory minimum sentence of 120 months’
imprisonment.

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                                  No. 10-20344

      Based on these facts, we were unable to determine if Gallagher had been
appointed full counsel for Robles, thereby fulfilling the Sixth Amendment right
to counsel, or merely standby counsel, which is insufficient for constitutional
purposes. Id. at 781–83. We therefore remanded the case to the district court to
take testimony from Gallagher and other relevant evidence to determine
whether “Robles had counsel at the May 10 sentencing hearing.” Id. at 783. We
made clear that “the inquiry as to whether Robles had counsel [wa]s not an
inquiry as to whether Robles was prejudiced[,] . . . . [as] the [relevant] issue
[wa]s exclusively a [United States v. Cronic, 466 U.S. 648 (1984),] issue.” Id. at
783 n.13. We noted that under Cronic, the complete denial of counsel at any
critical stage requires no demonstration of prejudice. See Cronic, 466 U.S. at
658–61.
      On remand, the evidentiary hearing was held on November 17, 2011.
Gallagher testified that during the twenty-minute continuance, he and Robles
talked through a translator inside the courtroom. In order to preserve
confidentiality, Gallagher was only able to discuss with generality the topics he
covered with Robles, but Gallagher made clear that he and Robles discussed “the
range of sentencing available in the PSR and what the likely outcome of the
sentencing might be,” as well as various other legal issues and concerns that
Robles had. Gallagher recalled that “[i]f [he] could provide an answer [to a legal
question for Robles], [he] gave it, to the best of [his] ability.” But he also noted
that he normally begins discussing sentencing outcomes with clients “long before
a sentencing hearing.” Moreover, in contrast to his regular practice, Gallagher
had not seen the indictment in this case, had only skimmed the PSR, and had
not seen the Government’s objections or responses to the PSR. When asked
directly whether he thought he was acting as full or standby counsel for Robles,
Gallagher replied that he thought he was acting as standby counsel.



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      The district court judge also gave his thoughts on Robles’s situation. He
observed that “[t]his case [wa]s not about [the] right to counsel. At this point, the
only claim can be the adequacy of the representation he did have.” Along these
lines, the judge found that “the essential function of having a lawyer was
performed by Mr. Gallagher, whether you call it stand-by or real.” At the close
of the hearing, the judge “conclude[d] that Mr. Gallagher was stand-by counsel
[and] that his representation, whether stand-by or otherwise, was fully adequate
under the circumstances.”
      Findings of fact and conclusions of law were entered on December 6, 2011.
The judge found that “[a]t the May 10, 2010, sentencing hearing, the court
appointed Phillip Gallagher as standby counsel.” The judge also found that
“Gallagher fairly represented [Robles] at sentencing. The distinction between
regular and standby counsel is meaningless at the sentencing in this case.
Robles had full counsel when he pleaded guilty. As standby counsel, Gallagher
performed every function that a fully retained counsel could have done at
sentencing.”
      Robles now appeals his sentence arguing that the district court’s findings
indicate that he was denied his Sixth Amendment right to counsel at his May 10,
2010 sentencing.
                                II. DISCUSSION
      In our earlier opinion in this case, we explained that “[i]t is well settled
that [the Sixth] amendment means that a defendant is entitled to be represented
by counsel at all critical stages of a criminal proceeding against him; critical
stages of a criminal proceeding are those stages of the proceeding at which the
substantial rights of a defendant may be affected.” United States v. Taylor, 933
F.2d 307, 312 (5th Cir. 1991). Sentencing is one such critical stage. See Mempa
v. Rhay, 389 U.S. 128, 134 (1967). We have no need to review the well-
established legal principles we covered in our previous opinion because our

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present inquiry is straightforward: “Given that [Robles] had a fundamental right
to be represented by counsel at his sentencing, the question before the Court
becomes whether the presence of standby counsel satisfies the requirements of
the Sixth Amendment.” Taylor, 933 F.2d at 312.
      The unequivocal answer to this question is “no.” As we have explained,
time and again, “we think it clear that the assistance of standby counsel, no
matter how useful to the court or the defendant, cannot qualify as the assistance
of counsel required by the Sixth Amendment.” Id.; see United States v. Virgil,
444 F.3d 447, 453 (5th Cir. 2006) (“The presence of a ‘standby counsel’ is not
enough to fulfill the Sixth Amendment requirement when a defendant requests
counsel.”); see also United States v. Davis, 269 F.3d 514, 520 (5th Cir. 2001);
Childress v. Johnson, 103 F.3d 1221, 1230–31 (5th Cir. 1997).1 We made explicit
in Taylor that:
      The very definition of full-fledged counsel includes the proposition
      that the counselor, and not the accused, bears the responsibility for
      the defense; by contrast, the key limitation on standby counsel is
      that such counsel not be responsible—and not be perceived to be
      responsible—for the accused’s defense. Indeed, in many respects,
      standby counsel is not counsel at all, at least not as that term is
      used in the Sixth Amendment.
933 F.2d at 312 (emphasis in original).
      Our unambiguous precedent renders the district court’s order incorrect.
If Gallagher was only acting as standby counsel, then Gallagher’s performance
at sentencing and what he might or might not have accomplished are irrelevant
for Sixth Amendment purposes. Contrary to the district court’s proposition, this
case is only about the right to counsel and whether Gallagher’s appointment
satisfied that constitutional entitlement. As we explained in our remand order,
there was no need to inquire into prejudice or the performance of the various

      1
         We recognize, of course, that the right to counsel is satisfied where a defendant
chooses to represent himself.

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attorneys—the sole issue on remand was whether Gallagher was acting as full
or standby counsel. Robles, 445 F. App’x at 783 n.13. The district court answered
this question, but disregarded our precedents and rendered an incorrect legal
conclusion.
      In spite of the district court’s finding, the Government tries to persuade
us that Robles was not actually denied his Sixth Amendment right to counsel.
First, it suggests that while the trial judge found and Gallagher himself stated
that he was standby counsel, we should look beyond this label to the actual
actions taken by Gallagher and whether he acted, in effect, as full counsel. We
are unwilling to do so. Even reviewing the facts de novo, we see nothing amiss
with the district court’s finding that Gallagher was standby counsel, especially
in light of Gallagher’s own testimony that this was the role he believed he was
playing. Second, the Government suggests that because Gallagher was present
at the sentencing hearing, Robles was not completely denied counsel within the
meaning of Cronic. Taylor and its progeny foreclose this argument by
unequivocally holding “that standby counsel is not ‘counsel’ within the meaning
of the Sixth Amendment.” Taylor, 933 F.2d at 313 (footnote omitted).
                             III. CONCLUSION
      The findings of the district court make clear that Gallagher was only
appointed standby counsel and therefore Robles was denied his Sixth
Amendment right to counsel at his sentencing. We therefore VACATE Robles’s
sentence and REMAND the case for resentencing consistent with the
requirements of the Sixth Amendment.




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