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holding that "Gonzalez-Lopez is not applicable to the instant case," where the defendant "enjoyed the services of appointed counsel," "Gonzalez-Lopez clearly distinguishes itself from situations involving appointed counsel," and where the defendant does not "assert that she was deprived counsel of her choice"
Summary of this case from United States v. BellOpinion
No. 06-40222 Summary Calendar.
March 15, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Philip T. Cowen, Brownsville, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 1:05-CR-631-ALL.
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
Mayra Rincon pleaded guilty to conspiracy to possess with intent to distribute cocaine, methamphetamine, and ecstacy. Rincon challenges her conviction on the basis that she was effectively deprived of her Sixth Amendment right to counsel. The Government does not seek to enforce the appeal waiver. As a result, this court will not consider the waiver. See United States v. Lang, 440 F.3d 212, 213 (5th Cir. 2006).
Rincon avers that she was effectively deprived of her Sixth Amendment right to counsel, resulting in a constitutional "structural error" mandating reversal of her conviction and sentence. Rincon, relying on the Supreme Court's decision in United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), argues that because a "structural error" occurred, no additional prejudice or harm need be shown.
Notwithstanding Rincon's arguments, Gonzalez-Lopez is not applicable to the instant case. First, Rincon enjoyed the services of appointed counsel. Gonzalez-Lopez clearly distinguishes itself from situations involving appointed counsel. Gonzalez-Lopez, 126 S.Ct. at 2565 ("[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them."). Moreover, the Government conceded in Gonzalez-Lopez that the trial court had erroneously deprived the defendant of his right to counsel of his choosing. Id. at 2563. The Government makes no such concession here. Nor does Rincon assert that she was deprived counsel of her choice. Rather, she merely avers that there was a "slight gap in the attorney-client relationship" and admits that the "gap was initiated" by her when she called government officials in an attempt to further debrief.
Rincon's claims do not amount to a deprivation of counsel of choice as contemplated by the Court in Gonzalez-Lopez. At most, they amount to garden-variety ineffective-assistance claims. However, Rincon does not allege that counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), nor does she allege that her plea was involuntary or unknowing or was the result of incompetent advice of counsel. Moreover, she admits that the district court substantially complied with FED.R.CRIM.P. 11 in taking her plea and that her sentence conformed to her plea bargain agreement, was a lawful sentence, and that under a harm analysis she cannot show harm. Accordingly, the judgment of the district court is AFFIRMED.