District Court's Denial of New Counsel at Sentencing Upheld

UNITED STATES v. LOTT,--- F.3d ----, 2006 WL 23576 (10th Cir. Jan. 5, 2006)

(1) Although evidentiary hearing on whether D should have been appointed substitute counsel for sentencing (D raised issue before sentencing, dist ct denied motion without a hearing and in earlier decision, the 10th reversed and remanded for evidentiary hearing on D’s allegation of complete breakdown between him and his attorney prior to sentencing) was more adversarial than most hearings on substituting counsel, the 10th does not reach issue of whether there is a right to assistance of counsel at such a hearing because if there was any constitutional error, it was harmless BRD. 10th summarizes structural 6A error cases where harmless BRD test does NOT apply. It then analogizes D’s situation here to a preliminary-hearing-with-no-attorney situation that is analyzed under non-structural 6A harmless BRD standard. In this case, “nothing that occurred at [D's] evidentiary hearing contaminated [his] entire criminal proceeding.” The same facts would have come out (D testified at hearing) regardless of whether D had counsel, and the district court would have ruled the same regardless of whether D was represented by counsel.
(2) Applying the Romero test the 10th told it to use, the district court did not abuse its discretion in finding no breakdown between D and his attorney at sentencing stage to warrant appointing substitute counsel: the conflict was not so great to arise to a lack of communication, and D contributed to the conflict (though only slightly).