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United States v. Fox

United States Court of Appeals, Seventh Circuit

December 22, 2017

United States of America, Plaintiff-Appellee,
v.
Robert E. Fox, Defendant-Appellant.

          Argued October 26, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:15-cr-00025 - Jane E. Magnus-Stinson, Judge.

          Before Flaum, Ripple, and Manion, Circuit Judges.

          Manion, Circuit Judge.

         Robert 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 counsel.

         Fox 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.

         I. Background

         Fox was 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.

         At the 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.

         On the 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.

         Fox 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.[1] 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.

         II. Analysis

         A. Denial of Motion for a Continuance

         Generally "[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 ...


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