October 26, 2017
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. l:15-cr-00025
- Jane E. Magnus-Stinson, Judge.
Flaum, Ripple, and Manion, Circuit Judges.
Manion, Circuit Judge.
Fox was convicted of two Hobbs Act robberies. Because he used
a firearm to commit the robberies, he was subject to 18
U.S.C. § 924(c)(1)'s mandatory sentencing add-on and
was sentenced to 435 months' imprisonment. On appeal, he
principally argues that he is entitled to a new trial because
the district court denied him his right to be represented by
counsel of his choice. We affirm his conviction. The district
court was well within its discretion to deny Fox's
morning-of-trial motion for a continuance when there was no
indication Fox was particularly close to retaining new
also raises three other arguments. He admits that the first
two, which challenge parts of his conviction, are foreclosed
by controlling precedent. He simply wishes to preserve them
for Supreme Court review. But the government concedes that
Fox is correct on his final argument, agreeing that he is
entitled to resentencing in light of Dean v. United
States, 137 S.Ct. 1170 (2017). We agree. Dean
permits district courts to take into account the sentencing
add-on when fashioning a just sentence for the predicate
robberies, so the district court may impose a less severe
sentence on remand. Therefore, we vacate Fox's sentence
and remand for resentencing.
charged with robbing a White Castle restaurant and a Speedway
gas station in southern Indiana. He was indicted in federal
court under the Hobbs Act in January 2015 and appointed
counsel on account of his indigence. Fox had some conflict
with his appointed counsel and twice wrote to the district
judge-in July and September of 2015-requesting new counsel.
But at his November 3 competency hearing, Fox did not object
to continued representation by appointed counsel and made no
representations that he or his family were attempting to
retain private counsel. Indeed, his appointed counsel told
the court that Fox wanted to resolve the case but wanted more
time to prepare. The district court set trial to begin on
February 16, 2016.
final pre-trial conference on January 20, 2016, Fox requested
a continuance and claimed that his family was speaking with
potential new representation. The district judge noted that
she expected a superseding indictment to be returned and was
inclined to grant a continuance, but she also warned that
Fox's case had been pending for a long time, so if he
planned to retain new counsel, "that needs to
happen." Yet five days later, at the initial hearing on
the superseding indictment (which was almost entirely
unchanged from the original), Fox reversed himself and
indicated that he wanted to proceed on February 16 after all.
As such, he declined to exercise his right to have 30 days
between the date of the superseding indictment and trial.
morning trial was to begin, Fox changed his position again.
He requested a continuance, arguing that his family was
attempting to retain private counsel. The district judge held
a short hearing on the request. Fox's uncle testified
that the family had talked to an attorney and was "in
the process of trying to get the money, " but didn't
"have it right now." He also said that Fox's
family had been unaware that trial was to start that morning,
even though it had been scheduled since early November.
Fox's appointed counsel testified that he had spoken to
the private attorney and that the latter had no plans to make
an appearance in the case. The district judge denied the
motion for a continuance, concluding that: (1) Fox had
changed his position several times, indicating a desire to
proceed less than a month before trial; (2) there was no
indication that the private attorney would actually make an
appearance; and (3) the lawyers were prepared to proceed and
the court had summoned witnesses and jurors to be ready for
trial that morning.
proceeded to trial and the jury convicted him of both
robberies and the accompanying counts of using a firearm in
connection with crimes of violence. He was sentenced to 435
months' imprisonment due to the mandatory consecutive
sentences for using a firearm in connection with the
robberies. See 18 U.S.C. § 924(c)(1). Fox
timely appealed his conviction and sentence.
Denial of Motion for a Continuance
"[w]e will reverse the district court's denial of a
motion for a continuance only for an abuse of discretion and
upon a showing of actual prejudice." United States
v. Shields,789 F.3d 733, 748 (7th Cir. 2015). Yet the
denial of the right to be represented by counsel of the
defendant's choice, assuming the defendant can afford
such counsel, is a structural error warranting reversal
irrespective of prejudice. United States v. Sellers,645 F.3d 830, 834 (7th Cir. 2011). Nevertheless, district
courts still "have broad discretion to grant or deny a
continuance to substitute new counsel." Id. We
will reverse only if the district judge's denial of the
motion amounted to "an unreasoning or arbitrary