USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12013 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cr-00259-WS-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE WITHERS ROGERS,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(January 25, 2021)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Bruce Withers Rogers appeals his sentence, arguing the district court erred
in denying his request for new counsel at sentencing. The government says we
should dismiss his appeal because Rogers’s waiver of his right to appeal bars his USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 2 of 7
claim here. Even though Rogers’s claim falls within one of the enumerated
exceptions to his appeal waiver, we nevertheless conclude the district court did not
abuse its discretion in denying Rogers’s request for a different lawyer. We
therefore affirm his sentence on that basis.
I
A federal grand jury issued a three-count indictment for Rogers, charging
him with possession of cocaine base with intent to distribute, possession of a
firearm as a felon, and possession of a firearm during and in relation to a drug
trafficking crime. Latisha Colvin was appointed to represent Rogers. Rogers then
entered into a plea agreement, by which he agreed to plead guilty to only the third
count. As part of that agreement, Rogers waived his right to file any direct appeal
other than to challenge a sentence above the statutory maximum; to challenge a
sentence above the advisory guideline range; and to assert a claim of ineffective
assistance of counsel. On December 17, 2019, Rogers pled guilty to possessing a
firearm during and in relation to a drug trafficking crime.
On May 10, 2020, a few days before his sentencing hearing, Rogers wrote a
letter to the district court requesting a different lawyer. Rogers told the district
court that Colvin had visited him only once and that when he called her or was in
court, she spoke over him or told him to be quiet. He also wrote that he felt
pressured to plead guilty because she made it feel like this was his only choice.
2 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 3 of 7
Rogers said he believed that Colvin, as a woman, was biased against him because
he had domestic violence charges on his record.
At sentencing on May 19, 2020, Rogers repeated his request for a different
lawyer. The district court thoroughly questioned Rogers and Colvin about
Rogers’s concerns and provided both the opportunity to speak. Rogers doubted
whether Colvin was working in his best interest and said Colvin didn’t take the
time to go through the case with him. Rogers again said he thought Colvin was
judging him based on his background. In response, Colvin told the district court
that she had “no problem communicating” with Rogers in person or by phone
about his case. She also noted that she was able to look into and prepare his case
and obtain a plea offer that Rogers “quickly accepted.” The district court denied
Rogers’s request. The district court noted that Rogers could have raised his
concerns at the time of his plea and found that Rogers received good representation
from Colvin. The district court then sentenced Rogers to the mandatory minimum
of 60 months’ imprisonment. This is Rogers’s appeal.1
II
Rogers argues that his Sixth Amendment right to counsel was violated when
the district court denied his request for a different lawyer after a conflict arose
1 The district court later granted Colvin’s motion to withdraw and appointed separate counsel for Rogers’s appeal. 3 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 4 of 7
between him and Colvin. Rogers believes the court’s decision left him without
effective representation at sentencing. Rogers thus asks us to vacate his sentence
and to remand the case for appointment of a different lawyer. The government
asks us to dismiss Rogers’s appeal because, according to the government, he
waived his right to appeal and his claim on appeal does not fall within the
exceptions to that waiver. We reject the government’s assertion regarding the
appeal waiver. Nevertheless, because the district court did not abuse its discretion
in denying Rogers’s request for a different lawyer, we affirm his sentence.
A
A valid appeal waiver prevents a defendant from appealing issues that fall
within the waiver’s scope. United States v. Hardman, 778 F.3d 896, 899 (11th Cir.
2014). Rogers does not argue that his appeal waiver was invalid. Therefore, we
need only decide whether his claim falls within one of the exceptions to the appeal
waiver, thereby allowing his appeal to proceed. We consider that question de
novo. See id. at 899–903 (applying de novo review to determine whether a
defendant’s appeal waiver barred his appeal); see also United States v. Masilotti,
565 F. App’x 837, 838 n.1 (11th Cir. 2014) (per curiam) (unpublished) (“We
review de novo the scope of an appeal waiver.”).
As set out above, Rogers waived his right to appeal, subject to three
exceptions. One of the exceptions allows Rogers to bring a claim for ineffective
4 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 5 of 7
assistance of counsel. In this appeal, Rogers challenges the district court’s
decision not to appoint a different lawyer despite his conflict with Colvin. Our
precedent allows a defendant with appointed counsel to demand a different lawyer
only when there is good cause. United States v. Jimenez-Antunez, 820 F.3d 1267,
1271 (11th Cir. 2016). Good cause exists when there is a “fundamental problem,”
such as “a conflict of interest, a complete breakdown in communication or an
irreconcilable conflict which leads to an apparently unjust verdict.” Id. (quotation
marks omitted). Importantly, the good cause rule “protects the right to effective
assistance of counsel; if good cause exists, a defendant no longer has effective
representation.” Id. (emphasis added). Rogers says he had good cause because
there was conflict between him and Colvin. In his view, this conflict meant the
district court’s failure to appoint a different lawyer left him without effective
assistance of counsel at his sentencing. Rogers’s claim on appeal thus necessarily
implicates his right to effective assistance of counsel. We therefore conclude that
his claim falls within the exception to his appeal waiver for claims of ineffective
assistance.
B
Thus, we turn to the merits of Rogers’s claim. We review a district court’s
decision on a defendant’s request for a different lawyer for abuse of discretion
when, as here, the district court inquired into the request. United States v.
5 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 6 of 7
Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997). In our review, we usually
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USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12013 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cr-00259-WS-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE WITHERS ROGERS,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(January 25, 2021)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Bruce Withers Rogers appeals his sentence, arguing the district court erred
in denying his request for new counsel at sentencing. The government says we
should dismiss his appeal because Rogers’s waiver of his right to appeal bars his USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 2 of 7
claim here. Even though Rogers’s claim falls within one of the enumerated
exceptions to his appeal waiver, we nevertheless conclude the district court did not
abuse its discretion in denying Rogers’s request for a different lawyer. We
therefore affirm his sentence on that basis.
I
A federal grand jury issued a three-count indictment for Rogers, charging
him with possession of cocaine base with intent to distribute, possession of a
firearm as a felon, and possession of a firearm during and in relation to a drug
trafficking crime. Latisha Colvin was appointed to represent Rogers. Rogers then
entered into a plea agreement, by which he agreed to plead guilty to only the third
count. As part of that agreement, Rogers waived his right to file any direct appeal
other than to challenge a sentence above the statutory maximum; to challenge a
sentence above the advisory guideline range; and to assert a claim of ineffective
assistance of counsel. On December 17, 2019, Rogers pled guilty to possessing a
firearm during and in relation to a drug trafficking crime.
On May 10, 2020, a few days before his sentencing hearing, Rogers wrote a
letter to the district court requesting a different lawyer. Rogers told the district
court that Colvin had visited him only once and that when he called her or was in
court, she spoke over him or told him to be quiet. He also wrote that he felt
pressured to plead guilty because she made it feel like this was his only choice.
2 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 3 of 7
Rogers said he believed that Colvin, as a woman, was biased against him because
he had domestic violence charges on his record.
At sentencing on May 19, 2020, Rogers repeated his request for a different
lawyer. The district court thoroughly questioned Rogers and Colvin about
Rogers’s concerns and provided both the opportunity to speak. Rogers doubted
whether Colvin was working in his best interest and said Colvin didn’t take the
time to go through the case with him. Rogers again said he thought Colvin was
judging him based on his background. In response, Colvin told the district court
that she had “no problem communicating” with Rogers in person or by phone
about his case. She also noted that she was able to look into and prepare his case
and obtain a plea offer that Rogers “quickly accepted.” The district court denied
Rogers’s request. The district court noted that Rogers could have raised his
concerns at the time of his plea and found that Rogers received good representation
from Colvin. The district court then sentenced Rogers to the mandatory minimum
of 60 months’ imprisonment. This is Rogers’s appeal.1
II
Rogers argues that his Sixth Amendment right to counsel was violated when
the district court denied his request for a different lawyer after a conflict arose
1 The district court later granted Colvin’s motion to withdraw and appointed separate counsel for Rogers’s appeal. 3 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 4 of 7
between him and Colvin. Rogers believes the court’s decision left him without
effective representation at sentencing. Rogers thus asks us to vacate his sentence
and to remand the case for appointment of a different lawyer. The government
asks us to dismiss Rogers’s appeal because, according to the government, he
waived his right to appeal and his claim on appeal does not fall within the
exceptions to that waiver. We reject the government’s assertion regarding the
appeal waiver. Nevertheless, because the district court did not abuse its discretion
in denying Rogers’s request for a different lawyer, we affirm his sentence.
A
A valid appeal waiver prevents a defendant from appealing issues that fall
within the waiver’s scope. United States v. Hardman, 778 F.3d 896, 899 (11th Cir.
2014). Rogers does not argue that his appeal waiver was invalid. Therefore, we
need only decide whether his claim falls within one of the exceptions to the appeal
waiver, thereby allowing his appeal to proceed. We consider that question de
novo. See id. at 899–903 (applying de novo review to determine whether a
defendant’s appeal waiver barred his appeal); see also United States v. Masilotti,
565 F. App’x 837, 838 n.1 (11th Cir. 2014) (per curiam) (unpublished) (“We
review de novo the scope of an appeal waiver.”).
As set out above, Rogers waived his right to appeal, subject to three
exceptions. One of the exceptions allows Rogers to bring a claim for ineffective
4 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 5 of 7
assistance of counsel. In this appeal, Rogers challenges the district court’s
decision not to appoint a different lawyer despite his conflict with Colvin. Our
precedent allows a defendant with appointed counsel to demand a different lawyer
only when there is good cause. United States v. Jimenez-Antunez, 820 F.3d 1267,
1271 (11th Cir. 2016). Good cause exists when there is a “fundamental problem,”
such as “a conflict of interest, a complete breakdown in communication or an
irreconcilable conflict which leads to an apparently unjust verdict.” Id. (quotation
marks omitted). Importantly, the good cause rule “protects the right to effective
assistance of counsel; if good cause exists, a defendant no longer has effective
representation.” Id. (emphasis added). Rogers says he had good cause because
there was conflict between him and Colvin. In his view, this conflict meant the
district court’s failure to appoint a different lawyer left him without effective
assistance of counsel at his sentencing. Rogers’s claim on appeal thus necessarily
implicates his right to effective assistance of counsel. We therefore conclude that
his claim falls within the exception to his appeal waiver for claims of ineffective
assistance.
B
Thus, we turn to the merits of Rogers’s claim. We review a district court’s
decision on a defendant’s request for a different lawyer for abuse of discretion
when, as here, the district court inquired into the request. United States v.
5 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 6 of 7
Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997). In our review, we usually
consider (1) the timeliness of the request, (2) the adequacy of the court’s inquiry
into the merits of the request, and (3) “whether the conflict was so great that it
resulted in a total lack of communication between the defendant and his counsel
thereby preventing an adequate defense.” Id. In addition, the defendant must
demonstrate that he was prejudiced by his appointed counsel’s representation. Id.
Beginning with the first factor, we do not view Rogers’s request for a
different lawyer as timely. Rogers says his conflict with Colvin arose around the
time he pled guilty, but he did not request a different lawyer until five months after
his plea. Indeed, Rogers’s request for new counsel came just days before his
sentence hearing. As to the second factor, the district court adequately inquired
into Rogers’s request. At the sentence hearing, the district court thoroughly
questioned both Rogers and Colvin about Rogers’s concerns. With respect to the
third factor, we recognize that Rogers asserted his conflict with Colvin caused
some breakdown in communication, in that Colvin would speak over him or tell
him to be quiet. But this record does not show such a lack of communication that
Rogers was not provided an adequate defense. Colvin told the district court that
she was able to communicate with Rogers about his case both in person and by
phone. Rogers acknowledges that Colvin did communicate with him. Beyond
that, Colvin said she was able to look into and prepare Rogers’s case. On this
6 USCA11 Case: 20-12013 Date Filed: 01/25/2021 Page: 7 of 7
record, the district court did not abuse its discretion in denying Rogers’s request
for a different lawyer. 2
AFFIRMED.
2 Our decision is limited to two holdings. First, Rogers’s appeal is not barred by his appeal waiver because his claim necessarily implicates his right to effective assistance of counsel. Second, the district court did not abuse its discretion in denying Rogers’s request for a different lawyer. We do not decide the question of whether Rogers received ineffective assistance of counsel. Ordinarily, “[o]nce a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.” United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (quotation marks omitted). But because we do not decide whether Rogers received ineffective assistance of counsel, our holdings do not prevent Rogers from raising an ineffective assistance claim in a collateral attack. We take no position on the merits of that claim should Rogers decide to pursue it. 7