     Case: 12-50984         Document: 00512618856          Page: 1     Date Filed: 05/05/2014




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

                                                                                        FILED
                                         No. 12-50984                                May 5, 2014
                                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                                               Clerk


                                                     Plaintiff–Appellee
v.

OSCAR SOTO,

                                                     Defendant–Appellant



                     Appeals from the United States District Court
                           for the Western District of Texas
                               USDC No. 3:11-CR-947-2


Before DENNIS and PRADO, Circuit Judges, and BROWN,* District Judge.
PER CURIAM:**
       Defendant–Appellant Oscar Soto (“Soto”) appeals his conviction and
sentence for conspiracy to possess with intent to distribute cocaine.                            Soto
alleges, as the sole ground on appeal, that the district court violated his Sixth
Amendment right to choose counsel when it denied pro hac vice admission to
his counsel of choice. We affirm.




       *   District Judge of the Eastern District of Louisiana, sitting by designation.

       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-50984
                            I.   BACKGROUND
      Soto was charged in a multi-count indictment and assigned an attorney
under the Criminal Justice Act (“CJA”). With the assistance of CJA counsel,
Soto entered a waiver of appearance at arraignment and a plea of not guilty.
After the district court granted three oral motions for continuances, Soto filed
a motion on September 29, 2011, to substitute David Martinez (“Martinez”) as
his retained counsel. Martinez, who was licensed by the state bar of Texas and
licensed to practice in the United States District Court for the Northern
District of Texas, concurrently filed a motion for admission pro hac vice to
represent Soto in the United States District Court for the Western District of
Texas (hereinafter the “Western District”).
      The Local Court Rules of the Western District govern the admission of
attorneys. Relevant here, Local Court Rule AT-1(f)(1) provides:
      In General. An attorney who is licensed by the highest court of a
      state or another federal district court, but who is not admitted to
      practice before this court, may represent a party in this court pro
      hac vice only by permission of the judge presiding. Unless excused
      by the judge presiding, an attorney is ordinarily required to apply
      for admission to the bar of this court.
      On October 13, 2011, the district court denied both motions.          As to
Martinez’s motion for admission pro hac vice, the district court found that
Martinez had appeared previously pro hac vice in the Western District:
      In 2006 the Honorable David Briones granted Martinez’s
      application for admission pro hac vice in cause number EP-06-CR-
      1149-DB, and ordered Martinez to apply for admission to practice
      in the Western District within sixty days of that Order. In that
      Order, Judge Briones admonished Martinez that if he failed to do
      so he would not be allowed to appear in the Western District until
      he was formally admitted.
In light of this finding, the district court denied the motion for admission
because, “[a]s of this day, Martinez has not followed Judge Briones’s directive.”

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                                  No. 12-50984
“Martinez,” the district court continued, “will not be allowed to appear on
behalf of Oscar Soto until he has been formally admitted to practice in the
Western District.” The district court then denied Soto’s motion to substitute
counsel because Martinez was not admitted to appear in the Western District.
      On December 20, 2011, Soto entered a plea agreement and subsequently
pleaded guilty to one count of the indictment. Soto agreed not to contest his
sentence on appeal or collateral attack unless the sentence was the result of
ineffective assistance of counsel or prosecutorial misconduct. After the district
court entered judgment of conviction and sentenced Soto to a term of
imprisonment, Soto timely appealed the judgment, asserting that the district
court denied his Sixth Amendment right to counsel of his choice.
                  II.    JURISDICTION AND WAIVER
      Soto seeks review of a final decision of the district court entering a
judgment of conviction and a sentence of imprisonment. Accordingly, this
Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
      Additionally, Soto has not waived this appeal because the Government
has not attempted to enforce the appeal waiver in Soto’s plea agreement. See
United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (holding that an
appeal waiver is enforceable “to the extent that” the Government invokes it,
and “[i]n the absence of the [G]overnment’s objection to [the appellant’s] appeal
based on his appeal waiver, the waiver is not binding.”). In any event, as the
Government concedes, United States v. Sanchez Guerrero, 546 F.3d 328 (5th
Cir. 2008), holds that a waiver of appeal does not apply to this Court’s
consideration of whether the district court erroneously denied the defendant
the right to counsel of his choice. Id. at 332.
                     III.   STANDARD OF REVIEW
      The parties dispute the appropriate standard of review.           Soto cites
United States v. Vaquero, 997 F.2d 78 (5th Cir. 1993), and argues that this
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                                  No. 12-50984
Court should review his Sixth Amendment claim for “simple error.”             The
Government contends that this Court should review for abuse of discretion.
We agree and hold that the appropriate standard of review is abuse of
discretion.
      In Sanchez Guerrero, this Court considered whether a district court
denied a defendant his right to counsel of choice when it disqualified his
attorney for a conflict of interest even though the defendant signed a conflict
waiver. 546 F.3d at 330–31. The Court noted that “a string of Fifth Circuit
cases” have relied on Wheat v. United States, 486 U.S. 153, 163 (1988), to hold
that “the correct standard for reviewing a district court’s disqualification of a
defense attorney for conflict of interest is abuse of discretion.”        Sanchez
Guerrero, 546 F.3d at 332–33 (citing cases).         Rejecting the defendant’s
argument for “simple error” review, the Court distinguished Vaquero on the
ground that “it involved the question of whether a waiver of conflicts of interest
actually waived the defendant’s rights, not whether disqualification was
appropriate.” Id. at 333 (citing Vaquero, 997 F.2d at 89–92). The Court
concluded that “[o]nly if the district court has abused its substantial discretion
in this area will we reverse the decision on appeal.” Id.
      Similarly, in considering “the defendant’s qualified right to choose his
own counsel,” this Court reviewed for abuse of discretion “the trial court’s
refusal to hear the defendant through his chosen counsel,” noting that:
      Indeed, this has always been our standard of review in cases of this
      sort. In the context of court-appointed counsel, for example, a
      panel of this court has held that the question of whether to appoint
      new counsel for a defendant is within the sound discretion of the
      trial court, and has gone on to uphold the court’s use of that
      discretion. United States v. Young, 482 F.2d 993 (5th Cir. 1973).
      And even when a defendant seeks to retain new counsel in
      replacement of his court-appointed counsel, a trial judge may,



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                                  No. 12-50984
      within his discretion, disallow it. United States v. Sexton, 473 F.2d
      512 (5th Cir. 1973).
United States v. Dinitz, 538 F.2d 1214, 1219–20 & n.7 (5th Cir. 1976) (en banc).
      Here, the district court’s denial of Martinez’s pro hac vice motion is more
closely aligned to the contexts in Sanchez Guerrero and Dinitz—and the cases
cited therein—than to the acceptance of defendant’s waiver of conflict-free
counsel in Vaquero. Moreover, the Vaquero opinion cited United States v.
Snyder, 707 F.2d 139, 144 (5th Cir. 1983), as precedent for “simple error”
review, but Snyder has been superseded by Wheat. Compare Vaquero, 997 F.2d
at 89 (citing Snyder, 707 F.2d 139, 144 (5th Cir. 1983)), with Sanchez Guerrero,
546 F.3d at 333 (“[Snyder’s] holding on the standard of review has been
superceded by Wheat and the resulting cases from this court.”). Accordingly,
we review for abuse of discretion whether the district court properly denied
Martinez’s pro hac vice motion.
                           IV.    DISCUSSION
      An element of the Sixth Amendment right to counsel “is the right of a
defendant who does not require appointed counsel to choose who will represent
him.” United States v. Gonzalez–Lopez, 548 U.S. 140, 144 (2006). The right to
counsel is circumscribed in many respects, however. Among them, the Sixth
Amendment right to counsel “does not grant a defendant the right to have
counsel who is not admitted to the bar. The right to counsel is a right to be
represented by a member of the Bar, who has been admitted to practice before
the court in which he appears.” United States v. Price, 798 F.2d 111, 113 (5th
Cir. 1986) (internal footnotes and citations omitted); see also Wheat, 486 U.S.
at 159 (“Regardless of his persuasive powers, an advocate who is not a member
of the bar may not represent clients (other than himself) in court.”). The
Supreme Court recently reaffirmed that “[n]othing [in our opinion] today casts
any doubt or places any qualification upon our previous holdings that limit the

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                                        No. 12-50984
right to counsel of choice and recognize the authority of trial courts to establish
criteria for admitting lawyers to argue before them.” Gonzalez–Lopez, 548 U.S.
at 151. That authority is not without its limits, for “[a]ny rule . . . that
unnecessarily restricts a litigant’s choice of counsel in civil rights litigation
cannot be sustained.” Sanders v. Russell, 401 F.2d 241, 246 (5th Cir. 1968);
see In re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975) (extending Sanders to fee-
generating cases).
       The crux of Soto’s argument on appeal is that the district court denied
Martinez pro hac vice admission “for reasons that appear to be provincial
rather than for reasons pertaining to counsel’s competence,” and that there
should be no concerns about compliance with local customs because Martinez
was prepared to hire local counsel. 1 Without a single citation to authority, Soto
contends that “[t]he Supreme Court cases that discuss limitations on the right
to counsel are premised on the competence of the lawyer, and the Sixth
Amendment right to counsel of one’s choice should supercede concerns about
provincialism and familiarity with the court. The Constitutional right asserted
in this case should prevail.” In other words, Soto argues that the local rule
requiring pro hac vice applicants to also apply for admission to the Western
District—and Judge Briones’s order enforcing that rule—is “unnecessarily”




       1  Soto also argues that: (1) the district court should have been more sympathetic to
the fact that he lived outside the Western District of Texas and, thus, expectedly wanted to
be represented by an attorney from his own community; and (2) in light of the vastness of
the Western District, Judge Briones should not be allowed to enter an order that affects so
many courts. Soto fails to explain or cite any case law in support of these arguments and we
decline to consider them. See, e.g., In re Repine, 536 F.3d 512, 518 n.5 (5th Cir. 2008) (finding
argument waived “due to inadequate briefing” where appellant “fail[ed] to explain” the
argument and did not “cite any authority to support her position” (citing L & A Contracting
Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994))).

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                                       No. 12-50984
restrictive simply because the “provincial” rule does not concern the attorney’s
competence. 2 We disagree.
       The Sixth Amendment right to counsel does not inescapably trump a
district court’s local bar admission requirements. As later reaffirmed by the
Supreme Court’s recognition of “the authority of trial courts to establish
criteria for admitting lawyers to argue before them,” Gonzalez–Lopez, 548 U.S.
at 151, this Court has stated:
       There is some point short of allowing a defendant complete
       freedom in choosing his own counsel at which the Sixth
       Amendment’s prescription is satisfied. To hold otherwise would
       necessarily condemn, for example, even local bar admission
       requirements, and no one would seriously maintain that the Sixth
       Amendment requires that.
Dinitz, 538 F.2d at 1219. Indeed, this Court has recognized a district court’s
“valid interest in regulating the qualifications and conduct of counsel, their
availability for service of court papers, and their amenability to disciplinary
proceedings.” Sanders, 401 F.2d at 245 (citation omitted).
       In light of the district court’s authority and these recognized interests,
Soto’s argument—that the Sixth Amendment right to counsel yields only to
counsel’s competence—fails. First, to admit Martinez pro hac vice based solely
on his competence would excuse him from having to, for example, use the
court’s form for application pro hac vice or pay the prescribed fee. See Local



       2 Soto appears to challenge only the application of the local rule. He does not appear
to argue that the district court improperly disqualified Martinez. Nor could he—the district
court did not reach Martinez’s qualifications because he failed to follow the Western District’s
Local Court Rules governing pro hac vice admission. Thus, we distinguish Martinez’s
procedural defect from our precedent where a district court denied an attorney’s appearance
based upon the attorney’s substantive qualifications. See, e.g., United States v. Nolen, 472
F.3d 362, 374–76 (5th Cir. 2006) (remanding to the district court where the court revoked pro
hac vice admission based upon unethical behavior without “explicating the process on the
record”); In re Evans, 524 F.2d at 1007–08 (requiring an evidentiary hearing on the record
when denying pro hac vice admission based upon unethical behavior).
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                                  No. 12-50984
Court Rule AT-1(f). Yet “no one would seriously maintain that the Sixth
Amendment” disposes of these local rules for pro hac vice admission simply
because they do not concern competence. Second, Soto wholly fails to consider
whether the local rule at issue could also serve the district court’s valid interest
in “decorum, dignity, . . . good character or amenability to service and
discipline.” Sanders, 401 F.2d at 246. We therefore reject Soto’s wholesale
challenge to local rules that do not concern an attorney’s competence, and we
need not decide whether the rule at issue here serves the district court’s valid
interests. It suffices to hold that Soto’s exaltation of his right to counsel, based
solely upon the attorney’s competence, “would necessarily condemn” the
Western District’s Local Court Rules governing admission.
      Accordingly, the district court did not abuse its discretion when it
enforced its local rules in denying Martinez’s pro hac vice admission.
                             V.   CONCLUSION
      We AFFIRM the district court’s judgment and sentence.




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