United States v. Eddie Carrillo

Case: 10-50465 Document: 00511518878 Page: 1 Date Filed: 06/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2011
No. 10-50465
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDDIE CARRILLO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-3337-1
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eddie Carrillo appeals the 382-month sentence he received for being a
person required to register as a sex offender who traveled between states to
engage in illicit sexual conduct with a minor. He asserts that the denial of his
attempt to dismiss his retained attorney in the week before the sentencing
hearing violated his Sixth Amendment right to be represented by counsel of his
choice. He asserts that a continuance to allow him to hire new counsel would not
have interfered with the effective administration of the district court because his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50465
case was on the docket for only five months and he was able to retain his first
attorney quickly.
We find no abuse of discretion in the denial of the motion to withdraw.
Although Carrillo claimed to have been disgruntled with counsel “from day one,”
he testified during the plea hearing that he was satisfied with counsel’s
representation, and he did not seek to fire his attorney until the week before the
sentencing hearing. Trial courts are instructed specifically to “be wary of late
requests to change counsel lest they impede the prompt and efficient
administration of justice.” McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.
1985) (internal quotation marks and citation omitted). Carrillo received two
previous continuances, including a three-week continuance of the sentencing
hearing shortly before he filed the motion to withdraw. Moreover, there is no
indication in the record that Carrillo was willing or able to retain another
attorney or that another attorney was available or prepared to represent him.
The motion to withdraw states only that existing counsel was asked to withdraw
by Carrillo’s family, and Carrillo did not discuss any intent to hire another
attorney during the hearing. Finally, just three weeks after the motion to
withdraw was denied, the magistrate judge found that Carrillo was indigent and
appointed counsel to represent him on appeal. Carrillo did not object to the
appointment of counsel or indicate that he would prefer to hire counsel. In sum,
Carrillo has not shown that his right to choose retained counsel outweighed “the
higher interest of the effective administration of the courts.” United States v.
Nolen, 472 F.3d 362, 375 (5th Cir. 2006) (internal quotation marks and citation
omitted).
Carrillo also contends that the district court’s written judgment conflicts
with its oral pronouncement of sentence. The district court orally recommended
that Carrillo’s federal sentence run concurrently with his state sentences, while
the written judgment recommends that the state sentences run concurrently
with the federal sentence. “When there is a conflict between a written sentence
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Case: 10-50465 Document: 00511518878 Page: 3 Date Filed: 06/23/2011
No. 10-50465
and an oral pronouncement, the oral pronouncement controls.” United States v.
Wheeler, 322 F.3d 823, 828 (5th Cir. 2003) (internal quotation marks and citation
omitted). We therefore agree with the parties that this case must be remanded
for the district court to amend the written judgment to conform to the oral
sentence. See id.Accordingly, we AFFIRM in part, VACATE in part, and REMAND for
amendment of the written judgment consistent with this opinion.
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