NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0577n.06

                                           No. 19-3638


                          UNITED STATES COURT OF APPEALS
                                                                                       FILED
                                                                                  Oct 08, 2020
                               FOR THE SIXTH CIRCUIT
                                                                             DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                               )
                                                         )
        Plaintiff-Appellee,                              )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
 v.                                                      )      COURT     FOR      THE
                                                         )      SOUTHERN DISTRICT OF
 OSCAR COLLADO-RIVERA,                                   )      OHIO
                                                         )
        Defendant-Appellant.                             )                 OPINION


       BEFORE:        ROGERS, SUTTON, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. This case reviews the district court’s decision

following our previous remand of Defendant Oscar Collado-Rivera’s motion for substitution of

counsel. Collado-Rivera appeals the denial on remand of his attorney’s second motion for

substitution of counsel—the motion filed post-trial and pre-sentencing. We remanded the district

court’s denial of the pre-sentencing motion with instructions to conduct the analysis required by

United States v. Mack, 

(6th Cir. 2001). United States v. Collado-Rivera, 759 F.

App’x 455, 466–67 (6th Cir. 2019). The district court conducted a hearing and again found that

there was not good cause for substitution of counsel for the sentencing hearing. Because the

district court correctly applied Mack and did not abuse its discretion in determining that Collado-

Rivera did not experience a complete breakdown in communication with his counsel, we

AFFIRM.
No. 19-3638, United States v. Collado-Rivera


                                     I.   BACKGROUND

       The background of this dispute was set out in our previous decision. Over two months

before Collado-Rivera’s trial, defense counsel filed a motion to withdraw, explaining that Collado-

Rivera had “asked that he withdraw and that new counsel be appointed under the Criminal Justice

Act.”

The district court held a hearing and allowed Collado-Rivera to discuss his

concerns about his attorney. Collado-Rivera “explained that: (1) he disagreed with his counsel’s

strategic choices; (2) he had not received certain discovery; (3) he was frustrated by the

continuances in the case; (4) he felt that his counsel disrespected [his girlfriend]; (5) his counsel

was angry with him for seeking additional counsel; and (6) his counsel expressed frustration with

him when explaining certain legal concepts.”

Defense counsel also addressed the court

about the issues raised. Ultimately, the district court directed Collado-Rivera to confer with his

attorney after which the court would reconsider a change of counsel if necessary; instead, Collado-

Rivera “proceeded to trial without renewing his request for new counsel.”

him of conspiracy to possess with intent to distribute more than five kilograms of cocaine.

defense counsel filed another motion to withdraw, again at the direction

of Collado-Rivera.

summarily denied the motion at the sentencing hearing.

the “district court summarily declined to consider that

objection.”

applied the analysis laid out in Mack; determined that the district court’s

inquiry was adequate; concluded that there had not been “a complete breakdown in Collado-

Rivera’s relationship with his attorney”; and affirmed the district court’s denial of the pre-trial

motion to substitute counsel.

We concluded, however, that the district court abused

its discretion when it summarily denied the second, pre-sentencing motion to substitute counsel.

We held that Collado-Rivera’s motion was timely, but determined that the district


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court’s analysis was inadequate and failed to inquire into whether there had been a complete

breakdown in the attorney-client relationship prior to sentencing.

that the

balancing between these factors and the public’s interest in the timely administration of justice

was neutral.

instructions for the district court to hold a hearing to determine

“whether, at the time of sentencing, there was good cause for substitution of counsel.”

If so, Collado-Rivera should be resentenced; if not, there would be no need for resentencing.

district court conducted a hearing, and allowed Collado-Rivera ample time

to discuss his concerns about his attorney. Collado-Rivera’s testimony revealed that most of the

conflict with his attorney centered around the decision not to call several witnesses at trial and at

sentencing that Collado-Rivera thought would be useful in disputing the Government’s obstruction

and perjury enhancement, and the fact that his attorney did not want to file his objections to his

pre-sentence investigation.    The district court also allowed counsel time to respond to the

complaints and to explain his strategic choices not to call witnesses which he had concluded were

not helpful or would be harmful, and not to object to those matters in the pre-sentencing report that

he thought would have no effect on the sentence.

       Collado-Rivera explained that he had spoken to counsel via video conference before

sentencing on May 24, 2017, and talked to him about calling witnesses at sentencing, both to

dispute the Government’s perjury and obstruction enhancement and to raise other objections to the

pre-sentence report. When counsel rebuffed Collado-Rivera’s request and told him to present his

objections himself, Collado-Rivera told counsel to withdraw.           Defense counsel then filed

objections to the pre-sentencing investigation report—without Collado-Rivera’s additional

objections—and a motion to withdraw. Counsel and client did not speak again until the morning

of the sentencing on July 20, 2017.




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No. 19-3638, United States v. Collado-Rivera


       At the close of the hearing, the district court affirmed its earlier decision to deny the motion.

It then issued an opinion recounting the testimony at the hearing and setting out its reasoning. The

court explained that Collado-Rivera was allowed to address all his concerns about counsel and that

Defendant talked “at length about his substantive issues with defense counsel’s performance and

issues that related to trial, even though those issues were not directly pertinent.” (R.455 at PageID

2313–14)    The district court concluded that Collado-Rivera and his counsel had strategic

disagreements, but those disagreements did not amount to a complete breakdown in

communication. The court explained that Collado-Rivera and his defense lawyer had

communicated throughout sentencing, beginning with a video conference on May 24, 2017 to

discuss the pre-sentencing report. The two also spoke on the morning of the sentencing on July

20, 2017. Collado-Rivera had additional objections that the defense lawyer did not present to the

court, but the court provided Collado-Rivera the opportunity to present them himself. Defense

counsel indicated that he had not been told with any specificity about Collado-Rivera’s additional

objections, but the district court concluded that this was because the two had already discussed the

sentencing strategy.   And the district court noted that Collado-Rivera and defense counsel

continued to speak at the hearing.

       The district court found that “[t]here has never been a time where it appeared Defendant

discontinued consulting with his attorney, even through the conclusion of the July 1, 2019

hearing.” (Id. at PageID 2316) Applying the Mack factors to the record of the hearing on remand,

the district court concluded that “there was not good cause for substituting counsel for purposes of

sentencing.” (Id. at PageID 2317) This appeal followed.




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No. 19-3638, United States v. Collado-Rivera


                                        II.   ANALYSIS

       A.      Standard of Review

       We review a district court’s denial of an indigent defendant’s motion to substitute counsel

for abuse of discretion. United States v. Mooneyham, 

, 291 (6th Cir. 2007).

       B.      Discussion

       The Sixth Amendment provides a criminal defendant with the right to counsel. U.S. CONST.

AMEND. VI.   However, “[a]n indigent defendant has no right to have a particular attorney represent

him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” United States

v. Iles, 

, 1130 (6th Cir. 1990). In reviewing whether a district court has abused its

discretion in denying a motion to substitute counsel, we consider: “(1) the timeliness of the motion,

(2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict between the

attorney and client and whether it was so great that it resulted in a total lack of communication

preventing an adequate defense, and (4) the balancing of these factors with the public’s interest in

the prompt and efficient administration of justice.” 

. In particular, the district

court must “inquire into the source and nature of the conflict” that the defendant articulates. United

States v. Powell, 

, 778–79 (6th Cir. 2017).

       This court has already determined, and the parties do not dispute, that the motion for

substitution of counsel was timely. Collado-Rivera, 759 F. App’x at 466. Similarly, this court

found, and there is no dispute, that the fourth factor of the Mack analysis was neutral.

the second and third Mack factors: the adequacy of the district court’s inquiry

into the motion, and the extent of the conflict between Collado-Rivera and his attorney.

       For a district court’s inquiry into the relationship between defendant and attorney to be

considered adequate, “the district court simply must allow a defendant the opportunity to explain

the attorney-client conflict as he perceives it.” United States v. Marrero, 

, 465 (6th


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No. 19-3638, United States v. Collado-Rivera


Cir. 2011). We previously determined that a district court sufficiently inquired into the matter

when it “engaged in multiple lengthy discussions with [the defendant and his lawyer] that span

many transcript pages regarding their alleged conflicts.” United States v. Vasquez, 

,

467 (6th Cir. 2009). When the district court allows the defendant, defense counsel, and the

prosecutor “the opportunity to address the complaint at issue” and allows “all of the interested

parties to present their respective evidence and arguments,” the inquiry is adequate. United States

v. Saldivar-Trujillo, 

, 278 (6th Cir. 2004).

       The discussion between Collado-Rivera, his attorney, and the prosecutor spans 34

transcript pages, and the district court allowed Collado-Rivera wide latitude to discuss the issues

he was having with his attorney, whether they were directly related to sentencing or were

background information concerning events leading up to trial. On multiple occasions, moreover,

the court directed the attorney to respond to the complaints Collado-Rivera was making and

counsel fully did so. The hearing record reveals that the district court’s inquiry into the nature of

the attorney-client relationship was adequate.

       We turn next to the nature of the attorney-client relationship between Collado-Rivera and

counsel. It is clear that “a defendant’s differences of opinions with his attorney do not create a

complete breakdown of communication that compromises his defense.” 

.

A defendant’s “dissatisfaction with the responses he got from his lawyer, not with the lack of

opportunity or his inability to talk to his lawyer or contact his lawyer” does not constitute a

complete breakdown in communication. 

(cleaned up).

       The hearing on remand demonstrated that Collado-Rivera had spoken to his attorney on

May 24, 2017, about the potential for calling witnesses at the sentencing hearing. The two also

discussed the attorney’s memorandum in response to the pre-sentence report and additional




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No. 19-3638, United States v. Collado-Rivera


objections that Collado-Rivera wanted to file.         The attorney refused to file the additional

objections. The two next communicated on July 20, 2017, the date of the sentencing. Collado-

Rivera’s lawyer stated at the hearing on remand that he would file a notice of appeal if asked. The

district court correctly concluded that though this evidenced a set of strategic disagreements, it did

not constitute a complete breakdown of communication.

       Collado-Rivera asserts that he was prejudiced by the failure of the district court to allow

him to substitute counsel for the sentencing hearing because he was unable to call witnesses that

would refute facts established at trial. But as the district court noted in the hearing, Collado-

Rivera’s sentence was well below guidelines range. It is far from clear that pursuing his alternative

strategy would have resulted in a lower sentence. In any event, prejudice to the defendant is not

an element of the analysis for the review of a motion to substitute counsel under Mack, and the

argument on that point is better suited for review under 28 U.S.C. § 2255.

                                    III.    CONCLUSION

       Because we find that the district court correctly applied Mack and did not abuse its

discretion in determining that Collado-Rivera did not experience a complete breakdown in

communication with his counsel, we AFFIRM.




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