Case: 12-41437      Document: 00512553596         Page: 1    Date Filed: 03/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-41437
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 7, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SANTOS CONTRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:12-CR-32-2


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Santos Contreras appeals his jury trial convictions for possession with
intent to distribute 5 kilograms or more of cocaine and for possession of a
firearm in relation to a drug-trafficking offense. Contreras argues that the
district court abused its discretion in denying his motion to substitute counsel
by determining that he was not entitled to counsel of his choice and in not
ascertaining whether he intended to seek retained counsel.                       He further


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41437

contends that the district court did not determine whether his appointed
counsel was prepared for trial.
      Although an indigent defendant has a Sixth Amendment right to be
represented by counsel in his criminal proceedings, he is not entitled to
demand a different appointed counsel in the absence of showing good cause.
United States v. Mitchell, 

, 441 (5th Cir. 2013). The record of the
hearing on the motion does not reflect that Contreras’s appointed counsel was
ineffective or had a conflict of interest with Contreras or that there had been a
breakdown in communication or any irreconcilable conflicts that would have
resulted in an unjust verdict. 

Defense counsel indicated that he
was prepared to go to trial. The record does not reflect a Sixth Amendment
violation based on the ineffective assistance of counsel or that the district court
abused its discretion in denying the motion to substitute a new appointed
counsel. 

to Contreras’s right to the retained counsel of his
choice, he did not indicate that he had obtained retained counsel prepared to
go to trial or that he intended to seek retained counsel. Even if a defendant is
seeking to substitute a retained counsel, the court must balance the right to
counsel of one’s choice against the need for fairness and the demands of the
court’s calendar. United States v. Jones, 

, 586-87 (5th Cir. 2013).
The district court considered the lateness of the request for a change in counsel,
the delays that would result, and the fact that the Government was prepared
to go to trial. The district court balanced the relevant factors in the case and
did not abuse its discretion in denying the motion to substitute.
      Contreras further argues that the district court erred in denying his
Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal of
the two charges on which the jury found him guilty. He preserved this issue
for de novo review by making the motion at the close of the evidence. United



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                                 No. 12-41437

States v. McDowell, 

, 312 (5th Cir. 2007). He argues that the only
evidence presented on the possession with intent to distribute charge was his
presence in the vehicle where the drugs were concealed and the testimony of
an informant who was seeking reduced charges in his own case. The testimony
of Gomez, the Government’s informant, was corroborated by other evidence
obtained by the Government through recorded telephone conversations,
surveillance of the three locations related to the drug activity, the demeanor of
Contreras at the time of the traffic stop, and telephone records. Further,
Contreras’s testimony at trial was lacking in credibility. The jury heard the
testimony and apparently rejected the defense witnesses’ version of the events.
This court will not reweigh the conflicting evidence or make credibility
determinations. United States v. Grant, 

, 642 (5th Cir. 2012).
Viewing the evidence in the light most favorable to the verdict, a reasonable
jury could have found beyond a reasonable doubt that Contreras had
knowledge of the drugs concealed in the truck and that he was assisting in
transporting the drugs to Chicago for distribution. Thus, the district court did
not err in denying the motion for acquittal on the drug count. See United States
v. Lopez-Moreno, 

, 437-38 (5th Cir. 2005).
      Finally, Contreras argues that the district court erred in denying his
motion for acquittal of the charge of possession of a firearm in furtherance of a
drug-trafficking offense because it determined that the firearm’s presence was
merely foreseeable to him.      Although foreseeability may have been the
incorrect term to use in determining whether a defendant was in possession of
the firearm under § 924(c)(1)(A), proof that a firearm is possessed in
furtherance of a drug-trafficking crime does not require evidence of the
defendant’s actual possession of the weapon. Rather, the Government must
show “that the firearm was available to provide protection to the defendant in



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                                 No. 12-41437

connection with his engagement in drug trafficking.” United States v. Smith,

, 264 (5th Cir. 2007) (internal quotations and citation omitted);
United States v. Ceballos-Torres, 

, 414 (5th Cir. 2000).
      The firearm was discovered because law enforcement had obtained
reliable evidence which gave them a reasonable basis for believing that drugs
were concealed in the vehicle with the intent to transport them to Chicago for
distribution. The firearm was located in the vehicle’s glove compartment next
to the door where the drugs were concealed and the magazine containing
ammunition was in a compartment under the radio.             The firearm and
ammunition were in close proximity to Contreras because he was in the
passenger seat directly behind the glove box and next to the middle console.
The firearm and ammunition were clearly available to provide protection to
Contreras in the event someone attempted to steal the drugs or the large
amount of currency to be received upon sale of the drugs. Viewing the evidence
in the light most favorable to the verdict, a reasonable jury could have found
that Contreras possessed the gun in furtherance of a drug-trafficking offense.
See 

; United States v. Charles, 

, 407 (5th
Cir. 2006). The district court did not err in denying the motion for a judgment
of acquittal on the firearm count.
      Contreras’s convictions are AFFIRMED.




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