Case: 17-30533 Document: 00514399631 Page: 1 Date Filed: 03/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30533 FILED
Summary Calendar March 23, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT MARCUS MONTES, also known as Mook,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:16-CR-226-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Robert Marcos Montes appeals following his conviction and sentence for
conspiracy to distribute methamphetamine. He argues that he was denied his
Sixth Amendment right to counsel when prior counsel effectively abandoned
him at a hearing for a motion to withdraw his guilty plea. Montes further
contends that the district court failed to conduct the required inquiry under
Faretta v. California, 422 U.S. 806 (1975), prior to his self-representation.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-30533 Document: 00514399631 Page: 2 Date Filed: 03/23/2018
No. 17-30533
A defendant can be constructively denied counsel if (1) counsel is
prevented from assisting the defendant at a critical stage, (2) counsel “entirely
fails to subject the prosecution’s case to meaningful adversarial testing,” or (3)
counsel “actively represented conflicting interests.” See United States v.
Cronic, 466 U.S. 648, 659-61 & nn. 25, 28 (1984) (internal quotation marks and
citation omitted). To the extent that Montes’s initial brief asserts a conflict of
interest theory, he has not specified what interest counsel allegedly
maintained that conflicted with his duties to his client. See Bostick v.
Quarterman, 580 F.3d 303, 306 (5th Cir. 2009). To the extent Montes argues
that counsel’s alleged failure to argue the motion is a failure to present
meaningful adversarial advocacy, counsel’s conduct at the hearing does not
constitute a complete abandonment. See Bell v. Cone, 535 U.S. 685, 695 (2002).
Specifically, counsel was present during the entire hearing, conferred privately
with Montes on various occasions, explained Montes’s desire to bring the
motion, and spoke on behalf of Montes at times. Therefore, we reject Montes’s
claim that counsel abandoned him, without prejudice to any ineffective
assistance claim he may choose to raise on collateral review. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Montes’s claim that the district court improperly denied him a Faretta
hearing likewise is unavailing. As explained, he was not completely
abandoned by counsel. Moreover, he never unequivocally invoked his right to
self-representation. United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008).
For these reasons, the judgment of the district court is AFFIRMED.
2
United States v. Robert Montes
Combined Opinion