United States v. Torres-Perez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 1, 2004

Charles R. Fulbruge III
Clerk
No. 04-50062
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE TORRES-PEREZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
(EP-03-CR-854-2-PRM )
--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Torres-Perez (Torres) appeals his

conviction and sentence for conspiracy to import marihuana,

importation of marihuana, conspiracy to possess with intent to

distribute marihuana, and possession with intent to distribute

marihuana. Torres argues that the evidence is insufficient to

support his conviction and that the district court abused its

discretion in denying his motion to substitute counsel.

*
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this opinion should not be published and is not precedent except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.
Torres contends that his written and oral statements regarding

the offenses are ambiguous and uncorroborated. The evidence shows,

however, that Torres was calm when he was interviewed and that he

stated that he was to be paid to assist his brother-in-law in

transporting marihuana to New Mexico. Customs officials had

stopped Torres and his brother-in-law at the Paso del Norte port of

entry in El Paso, Texas, after a canine alerted to their vehicle.

A total of 46.5 pounds of marihuana wrapped in bundles was found

hidden in the vehicle. Torres’s confession is sufficiently

corroborated, and the evidence is sufficient to sustain his

conviction on all four counts. See United States v. DeVille, 278

F.3d 500, 506-07 (5th Cir. 2002); United States v. Delgado, 256

F.3d 264, 273-74 (5th Cir. 2001).

On the day that jury selection was scheduled to commence,

Torres sought court permission for his court-appointed attorney to

withdraw and for the substitution of retained counsel. Although

Torres originally contended that retained counsel was ready to

proceed to trial, the record reflects that retained counsel sought

a continuance. Torres asserts that he was deprived of his Sixth

Amendment right to counsel because his court-appointed counsel was

inadequately prepared for trial. Torres does not identify any

shortcomings with respect to his representation at trial.

Although it denied the motion for substitution of counsel and

for a continuance, the court stated that it would allow retained

counsel to participate in the proceedings. The court determined

2
that Torres had had sufficient time to request new counsel earlier

if he had perceived a problem with his counsel’s representation;

that court-appointed counsel was competent to act as Torres’s

attorney; and that any delay would inconvenience the jurors called

to service. Under these circumstances, Torres has not shown that

the district court abused its discretion in denying the motion to

substitute counsel. See United States v. Silva, 611 F.2d 78, 79

(5th Cir. 1980); United States v. Young, 482 F.2d 993, 995-96 (5th

Cir. 1973).

AFFIRMED.