affirming the district court’s finding that a defendant who refused to leave his cell knowingly and voluntarily waived his right to be present during sentencing
How later courts described this case
- affirming the district court’s finding that a defendant who refused to leave his cell knowingly and voluntarily waived his right to be present during sentencing
- noting that even a defendant in custody can be “voluntarily absent” at sentencing, such as when he resists transport to court and moving him may cause injury
- noting that only in “rare” cases do defendants “in custody [] knowingly and voluntarily waive[]” their right to be present
- “ ‘Unless the complaint underlying a request for substitution of counsel is sufficiently detailed, the court may not rule on the motion without conducting a proper hearing....’” (quoting United States v. Zillges, 978 F.2d 369, 372 (7th Cir.1992)) (emphasis added)
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14‐1034 & 14‐1153
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
EDWARD R. VELAZQUEZ,
Defendant‐Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08‐cr‐00372‐1 — James B. Zagel, Judge.
____________________
ARGUED OCTOBER 1, 2014 — DECIDED NOVEMBER 20, 2014
____________________
Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit
Judges.
TINDER, Circuit Judge. While we presume many criminal
defendants are less than enthused about attending their own
court proceedings, Edward R. Velazquez’s aversion to the
inside of a courtroom was extraordinary. Velazquez, who
had been indicted on various charges related to a fraudulent
investment scheme, violated his bond just prior to his
scheduled trial date and remained a fugitive for six months.
2 Nos. 14‐1034 & 14‐1153
Velazquez was eventually apprehended, and he then opted
to plead guilty to a single count of mail fraud. Despite plead‐
ing guilty and thereafter being continuously in custody, Ve‐
lazquez refused to be brought to court for seven consecutive
hearings in the case. Finally, pursuant to a “drag order” by
the district court, marshals forcibly brought Velazquez to
court, and Velazquez sustained injuries in the process. The
district court declined to enter another drag order, and Ve‐
lazquez refused to appear for sentencing. The district court
denied a motion to withdraw as counsel filed by Velazquez’s
retained lawyer and sentenced Velazquez in absentia.
Velazquez appeals, contending that the district court
erred during the sentencing hearing by (1) denying counsel’s
motion to withdraw, (2) finding Velazquez to be voluntarily
absent, and (3) failing to consider Velazquez’s cooperation as
a basis for a reduced sentence. We affirm.
I. Background
On May 8, 2008, a grand jury indicted Velazquez on
charges of mail fraud, wire fraud, and transporting fraudu‐
lently obtained funds via interstate commerce. The indict‐
ment alleged that, in his role as president of V‐Tek Capital,
Inc., Velazquez devised and participated in a scheme to de‐
fraud investors by knowingly making materially false and
fraudulent representations regarding V‐Tek‘s “unique risk‐
averse” investment programs, which were “guaranteed” and
“not subject to market risk” because a portion of the invest‐
ment capital would be used to purchase United States
Treasury “Zero‐Coupon Bonds.” The indictment alleged that
Velazquez purchased no United States Treasury bonds, and
instead misappropriated a substantial portion of investors’
funds for his own personal use and benefit, and for the bene‐
Nos. 14‐1034 & 14‐1153 3
fit of his girlfriend. The indictment alleged that Velazquez’s
scheme resulted in investor losses of $1,600,000.
On May 12, 2008, Velazquez, who was represented by re‐
tained counsel, was arraigned and then released on an own‐
recognizance bond.
On October 21, 2008, Velazquez’s first counsel filed a mo‐
tion to withdraw, attaching as an exhibit a letter from Ve‐
lazquez terminating his representation. The district court
granted the motion on November 4, 2008. On November 10,
2008, a federal defender filed an appearance on behalf of Ve‐
lazquez. On March 24, 2009, the district court scheduled Ve‐
lazquez’s jury trial to begin on November 16, 2009.
On November 5, 2009, Velazquez failed to report to pre‐
trial services as required by the conditions of his bond. On
November 16, 2009, the district court vacated the trial date.
On December 9, 2009, after pretrial services reported that it
was unable to contact Velazquez, the district court issued a
bench warrant for Velazquez’s arrest. Nearly six months lat‐
er, on June 2, 2010, Velazquez was located and, after refusing
to obey the commands of deputy marshals, was restrained
and arrested through the use of force. The district court then
ordered Velazquez to be detained pending trial.
On October 12, 2010, Velazquez’s third attorney, James
Marcus (a retained attorney), was granted leave to file his
appearance in the case, and Velazquez’s second counsel was
allowed to withdraw.
On February 23, 2011, two weeks before the reset trial
date, Velazquez entered into a written plea agreement
whereby he agreed to plead guilty to a single count of mail
fraud. In the agreement, Velazquez acknowledged the truth
4 Nos. 14‐1034 & 14‐1153
of a detailed factual basis for his plea of guilty. The agree‐
ment contemplated that Velazquez would meet with the
government in an attempt to provide substantial assistance
in exchange for consideration at sentencing, and the agree‐
ment stated that the decision to move for a substantial‐
assistance reduction was within the sole discretion of the
government.
On February 23, 2011, Velazquez engaged in a plea collo‐
quy with the district court concerning his decision to enter
into the plea agreement and plead guilty. While under oath,
Velazquez said the following: he was satisfied with his at‐
torney’s advice and efforts on his behalf; the factual basis for
the plea was true; no agreements or promises were made to
him that were not contained in the plea agreement; and his
decision to plead guilty was entirely voluntary. The district
court accepted Velazquez’s plea of guilty.
On February 3, 2012, the government reported to proba‐
tion (for inclusion in the presentence investigation report)
that Velazquez had met with the government on a number
of occasions, but the government did not deem Velazquez to
be a useful witness, and he had not provided substantial as‐
sistance to the government.
On May 31, 2012, defense counsel filed a motion to con‐
tinue the sentencing date. The district court conducted a
hearing on the motion on June 5, 2012. Attorney Marcus ad‐
vised the district court that he was having difficulty com‐
municating effectively with Velazquez. The district court va‐
cated the sentencing date and set a status hearing for June
28, 2012, in order to learn whether Marcus was “able to solve
the problem of communication.”
Nos. 14‐1034 & 14‐1153 5
On June 22, 2012, Marcus filed a motion to withdraw as
counsel, citing “irreconcilable differences and defendant’s
refusal to speak and/or meet with [Marcus].” The district
court conducted a hearing on the motion on June 28, 2012.
Velazquez was not present for the hearing. Marcus stated
that he prepared an order for Velazquez to be transported
from the Metropolitan Correctional Center (“MCC”) to court
for the hearing. The judge said that it was “important … to
know whether he decided not to come over himself or
whether [the marshal] just didn’t bring him over,” so the
judge reset the hearing on the motion to withdraw for July
24, 2012.
On July 24, 2012, Velazquez again did not appear in
court. The judge received information from the marshal’s
service that Velazquez was on the prisoner production list
but he refused to come to court. The judge remarked that
Marcus was Velazquez’s third counsel, and told Marcus: “I
hate to impose this upon you, but I’m going to set this for
another day … because I want to hear what [Velazquez] has
to say.” The court reset Marcus’ motion to withdraw for Au‐
gust 21, 2012.
On August 20, 2012, Velazquez filed a pro se document
entitled, “Notice of Special Appearance and Revocation of
Plea Agreement and Written Allocution in Lieu of Sentenc‐
ing.” Velazquez asserted that his indictment was “invalid as
a matter of law,” and his plea agreement should be invali‐
dated because Marcus and the prosecutor “acted in collusion
in violation of [Velazquez]’s right to trial in order to mini‐
mize the amount of their investment of time in the case and
to maximize their pay in relation to the amount of time they
spent on the case.”
6 Nos. 14‐1034 & 14‐1153
On August 21, 2012, the district court conducted a hear‐
ing, but Velazquez again was not present. The judge re‐
marked upon Velazquez’s pro se filing and stated that “one
of the major difficulties with this is for [Velazquez] to make
his claim [to revoke his plea] he would actually have to come
here and offer testimony and he’s unwilling to come here.”
The judge stated that he wanted to inform Velazquez in per‐
son that “he may have waived the attorney‐client privilege
by filing these papers,” and “it’s a pretty grave thing to
waive the privilege, particularly in a case [in] which a person
has actually entered a plea of guilty and wishes to revoke it,
and … some of this appeared to be very unwise for Mr. Ve‐
lazquez to do, but he might have a good reason for it and
we’ll see.” The district court invited the government to file a
response to Velazquez’s filing and scheduled another hear‐
ing in October.
On October 10, 2012, the district court conducted another
status hearing, and again, Velazquez was not present. Mar‐
cus reported to the court that he had met with Velazquez
several times in the previous six weeks, and Marcus request‐
ed that another status conference be set in December. The
district court verified with Marcus that he and Velazquez
were communicating and then reset the hearing for Decem‐
ber 11, 2012.
On December 11, 2012, the district court conducted an‐
other status hearing, and again, Velazquez was not present.
Marcus reported to the court that he met with Velazquez “as
late as last night” and had “no idea” why Velazquez did not
appear for the hearing. Marcus said that Velazquez was suf‐
fering from a cold and asked that the matter be continued
until the end of January. Marcus said, “I think we’re going in
Nos. 14‐1034 & 14‐1153 7
the right direction and I think we’re going to be able to re‐
solve this hopefully at that time.” The district court again
continued the motion to withdraw as counsel and reset the
hearing for January 31, 2013.
On January 31, 2013, the district court conducted another
status hearing, and again, Velazquez was not present. Mar‐
cus said that he saw Velazquez the previous day, and he was
“quite ill” with “an upper respiratory situation,” and his ab‐
sence was “somewhat legitimate … because of his situation.”
Marcus asked the court “for a long date” to “continue the
motions” because “[t]here are some issues that have come
up that I need to work through.” Marcus stated that he
thought he and Velazquez were “moving in the right direc‐
tion.” The district court again reset the hearing.
On June 24, 2013, the district court conducted another
status hearing, and again, Velazquez was not present. Mar‐
cus reported that he had not spoken with Velazquez and he
was “not sure” if Velazquez was willing to speak to him. The
judge stated that “I think that we have to bring him to court
[by force],” and Marcus responded that he thought that was
appropriate. In the order following the hearing, the district
court directed the marshal “to use reasonable force to bring
Defendant” to the “[s]tatus/sentencing” on September 26,
2013 (the “drag order”).
On September 25, 2013, a pro se filing from Velazquez
dated August 7, 2013, was docketed with the district court.
In that filing, Velazquez asserted that pursuant to various
provisions of the Uniform Commercial Code, he did not “ac‐
cept this offer to contract” or “consent to these proceedings,”
and therefore, the district court did not have jurisdiction
over him.
8 Nos. 14‐1034 & 14‐1153
On September 26, 2013, Velazquez was forcibly brought
to court by deputy marshals pursuant to the district court’s
drag order. Marcus told the district court that Velazquez
“was seriously injured today in being brought over here,”
and “[h]is ankle, elbow, and arm are seriously injured,” and
Velazquez “believes them to be broken.” The judge said to
Marcus, in Velazquez’s presence, “I’m trying to find if
there’s some way that we can get him to court where he’s
willing to come, we don’t have to drag him here, and he can
speak his piece.” The judge noted that “there are other prob‐
lems that might exist that they come to his cell to bring him
here and he struggles, perhaps hits one of the officers and
that’s another federal offense and just makes things much
worse for him.” The judge stated that Velazquez’s filings
“basically construing these court proceedings as somehow
contractual … have never been accepted by the Courts of
Appeal.” The judge added: “[E]ven if I would happen to
agree with him, which I don’t, if I entered an order that was
consistent with what he’s giving me, the government will go
to the Court of Appeals which will reverse me … . So, basi‐
cally, the materials he’s filing with me don’t do him any
good at all.” The judge remarked that Velazquez’s motion to
withdraw his guilty plea is one of the “more traditional
claims that we usually do deal with,” but “if he doesn’t come
here we can’t go forward with whatever claims he has and
that’s been my concern.”
At the September 26, 2013 hearing, Marcus told the court
that Velazquez “wants and will see me,” and Marcus had
received Velazquez’s “assurances that he will see me at the
MCC, which I plan on doing.” Marcus stated that he wanted
to address several issues with Velazquez, so Marcus can
“prepare [an] appropriate response” to the presentence in‐
Nos. 14‐1034 & 14‐1153 9
vestigation report, and Marcus would “soon report to [the
court] exactly how we’re going to proceed going forward.”
At Marcus’ invitation, the judge asked Velazquez, “Are you
willing to talk with your lawyer about this?” Velazquez re‐
sponded, “Yes, I am.” The judge asked Velazquez whether
he would come to court in the future without being com‐
pelled by the use of force, and Velazquez responded, “I be‐
lieve so.”
The district judge concluded the September 26, 2013
hearing by stating in Velazquez’s presence that, if Velazquez
continued to refuse to come to court, “he has forfeited his
right to be present at the time I sentence him.” The judge
spoke of the “variety of reasons” why he did not want to
again order the use of force to bring Velazquez to court, in‐
cluding “the risk of harm … both to the deputies and to Mr.
Velazquez”; the “very large number of … marshals,” who
“have other more pressing duties to perform,” but must be
present in the courtroom when force is used on a defendant;
and, the judge’s observation that, “usually when I have to
have somebody brought over by force, it makes the proceed‐
ing very difficult.” The judge stated that he would have his
courtroom deputy alert the MCC to the need to provide
prompt medical care to Velazquez. The judge said the next
court date would be set in November, for Velazquez to
“come and participate and speak his piece.”
Upon returning to the MCC, Velazquez decided that he
could not wait until November to speak his piece. On Octo‐
ber 2, 2013, October 10, 2013, November 1, 2013, and No‐
vember 7, 2013, Velazquez filed pro se documents in which
he repeatedly stated that the district court had no jurisdic‐
tion pursuant to the Uniform Commercial Code, and de‐
10 Nos. 14‐1034 & 14‐1153
clared that he would not participate in the proceedings. Ve‐
lazquez asserted that he “will never accept or consent to [the
district court’s] alleged jurisdiction, to be judged, sentenced,
or compelled to appear in alleged court via ‘drag order.’”1
On November 19, 2013, the district court entered a mi‐
nute order stating: “If Defendant fails to appear for the next
status hearing set for 12/19/13, the Court will set a sentenc‐
ing date. Defendant is advised that sentencing will proceed
without him shall he fail to appear.” It is clear Velazquez re‐
ceived a copy of this minute order, because, on December 17,
2013, Velazquez filed pro se more than 100 pages of docu‐
ments, including a copy of the November 19, 2013 minute
order with handwritten notes on it.
On December 18, 2013, the district court entered a minute
order stating: “By agreement, the status/sentencing set for
12/19/13 is stricken and reset to 12/20/13 at 11:00 a.m.” As
discussed below, it is clear Velazquez received a copy of this
minute order as well.
On December 20, 2013, government counsel and Marcus
appeared in court, but Velazquez was absent. Nonetheless,
Velazquez made his presence felt, much like the “man who
wasn’t there.”2 Velazquez had sent to the court a large vol‐
1 Although we would have thought this point to be self‐evident, a de‐
fendant’s consent pursuant to the Uniform Commercial Code, which
governs certain areas of commercial law, does not determine a court’s ju‐
risdiction in criminal proceedings. Were it otherwise, the nation’s prisons
likely would be empty.
2 “As I was going up the stair/I met a man who wasn’t there.” Hughes
Mearns, Antigonish (1899), reprinted in Best Remembered Poems 107
(M. Gardner ed., 1992).
Nos. 14‐1034 & 14‐1153 11
ume of documents similar to those which had been filed
previously, relying upon the Uniform Commercial Code to
declare that the court was without jurisdiction. The docu‐
ments were placed on the docket later in the day on Decem‐
ber 20, 2013, and included a copy of the district court’s De‐
cember 18, 2013 minute order rescheduling the “sta‐
tus/sentencing.” The copy of the minute order contained
handwritten notes, including the statement, “I do not accept
this offer to contract and I do not consent to these proceed‐
ings,” and was apparently signed by Velazquez. At the out‐
set of the hearing, the district judge stated that one of Ve‐
lazquez’s documents referenced 28 U.S.C. § 2241 “for ex‐
traordinary relief from a criminal charge without jurisdic‐
tion,” and the judge said, “to the extent that anything is filed
as a motion, I’m denying it.”
The district judge next stated that he had been informed
that Velazquez “decided not to appear”; “[t]his was the day
[the court] designated for sentencing even if he did not ap‐
pear”; and, “in light of what happened last time,” the judge
“specifically directed … that he not be dragged here against
his will.” The judge called a deputy marshal to testify. The
marshal testified that his office had been informed by MCC
officials that Velazquez was refusing to come to court, and
the marshal subsequently spoke to Velazquez, who told the
marshal that “he talked to his lawyer yesterday and that it
was his choice that he was not going to be present today.”
Marcus remarked to the judge that he met with Ve‐
lazquez “this week,” and Marcus “anticipated his being
here, quite frankly.” The judge responded, “Well, he refused
to come … . [As] a consequence of that … we are now going
to proceed with sentencing.” Then Marcus said, “I have a
12 Nos. 14‐1034 & 14‐1153
motion to withdraw … . I just can’t continue with represen‐
tation under the circumstances. I’ll get a public defender.”
The judge responded that he was not granting Marcus leave
to withdraw. The judge noted that there was nothing con‐
tained in the pro se documents filed by Velazquez which dis‐
putes any of the statements in the presentence investigation
report. Marcus remarked that he and Velazquez “have had
discussions with respect to the PSR and there are certainly
factors that I would want to bring to the court’s attention,”
but “[t]his is going to be very hard for me to continue with
this without the client.” The judge responded: “That’s a self‐
imposed limitation on him and he imposes this limitation on
you.” Marcus asked for additional time to file a response to
the presentence investigation report, and the court denied
the request because “[t]he opportunity to file something has
been available from the beginning. This was the sentencing
date. So you may choose to speak or not, as you wish.”
The district court then proceeded to resolve issues raised
by Marcus relating to the calculation of the sentencing
guidelines range. Over the government’s objection and con‐
trary to the recommendation in the presentence investiga‐
tion report, the court credited Velazquez with acceptance of
responsibility pursuant to § 3E1.1 of the guidelines. During
arguments on this point, Marcus told the judge that Ve‐
lazquez “went through extensive meetings with the gov‐
ernment … over several different occasions and over many
hours.” The government confirmed that there were a num‐
ber of proffers, but “[w]e did not feel he was a useful wit‐
ness,” and “[t]here were no new prosecutions brought as a
result.” The judge noted that he had “looked at this before”
and “thought it was a close call on acceptance of responsibil‐
ity.” The judge decided to grant Velazquez acceptance of re‐
Nos. 14‐1034 & 14‐1153 13
sponsibility “in light of the fact that he attempted to cooper‐
ate.”
Marcus also argued that Velazquez should not receive an
upward adjustment for obstructing justice under § 3C1.1 of
the guidelines, as recommended in the presentence investi‐
gation report. The government argued that the adjustment
for obstruction was appropriate because Velazquez was “a
fugitive for a period of time, he fought the attempt of law
enforcement to arrest him when they did locate him,” and
“we had a trial date set before his flight.” The court agreed
with the government and found obstruction because Ve‐
lazquez caused “a real delay of the process … of justice.”
At that point in the proceedings, Marcus asked for a brief
recess and then informed the court that Velazquez’s com‐
mon‐law wife had just entered the courtroom. Marcus told
the court that she had filed a complaint against him with the
Illinois Attorney Registration and Disciplinary Commission.
Marcus said, “I neglected to bring that to the court’s atten‐
tion, which does create somewhat of a conflict of interest for
me and would certainly be … part of my basis to withdraw
from the case, too.” The judge responded: “Well, I think it
stops you from saying anything else, but you said all you
can say.”
The court next heard comments from Velazquez’s com‐
mon‐law wife and Velazquez’s sister regarding Velazquez’s
positive personal characteristics. Marcus next argued that
Velazquez’s “extensive” attempts at cooperation “warrants
some consideration … in crafting a sentence,” and asked for
a 60‐month sentence. Government counsel then spoke, fo‐
cusing on the harm to the victims, and arguing that “the
manner in which Mr. Velazquez has chosen to comport
14 Nos. 14‐1034 & 14‐1153
[himself] in these proceedings really [does not] bode well for
rehabilitation and probably suggests recidivism is a real
concern.”
The district court then discussed the nature of the offense
and the history and characteristics of Velazquez. The court
remarked upon the statements of Velazquez’s family mem‐
bers and said that while Velazquez may have been “a good
person to have for a family member,” the “duty of a citizen
extends a little longer.” The court stated that Velazquez
“was a con man and he hurt a lot of people.” The court said
that “post‐charge conduct [was] particularly important,” fo‐
cusing specifically on Velazquez’s decision to violate his
bond, which “shows that he does not truly understand the
damage he’s done,” and “proved … that he can’t keep his
word.” The court stated that the guideline range was 121 to
151 months’ imprisonment and then sentenced Velazquez to
136 months, which was “in the dead middle of that guide‐
line” and was an “appropriate sentence” in this case. The
court also imposed three years of supervised release and res‐
titution of $5,532,714. Judgment was subsequently entered,
and this appeal followed.
II. Motion to Withdraw
On appeal, Velazquez first contends that the district
court committed reversible error when it denied Marcus’
motion to withdraw as counsel. Velazquez contends that the
denial of the motion to withdraw constituted an arbitrary
denial of Velazquez’s Sixth Amendment right to be repre‐
sented by retained counsel of Velazquez’s choice, which was
a structural error justifying reversal without inquiry into
prejudice, as described in United States v. Sellers, 645 F.3d 830
(7th Cir. 2011). The government contends that the structural‐
Nos. 14‐1034 & 14‐1153 15
error analysis of Sellers only applies when a court arbitrarily
or unreasonably denies a defendant the right to be repre‐
sented by retained counsel of choice, and is inapplicable in
this case because Velazquez never identified a retained at‐
torney to replace Marcus, and Marcus told the district court
that Velazquez would need a public defender. The govern‐
ment contends that the proper analysis consists of reviewing
the district court’s decision for an abuse of discretion, and
even if an abuse of discretion is found, to “nevertheless up‐
hold the district court’s decision unless the defendant estab‐
lishes that he was deprived of his Sixth Amendment right to
effective assistance of counsel.” United States v. Volpentesta,
727 F.3d 666, 673 (7th Cir. 2013) (citing United States v.
Zillges, 978 F.2d 369, 372–73 (7th Cir. 1992)). The government
contends that the district court did not abuse its discretion,
and, in any event, Velazquez has not shown—or even at‐
tempted to show—that “the performance of his attorney was
not within the range of competence demanded of attorneys
in criminal cases, and that but for counsel’s deficiencies, the
result of the proceeding would have been different.” Zillges,
978 F.2d at 372–73 (citation and internal quotation marks
omitted).
We do not need to decide which analysis applies to this
unusual set of facts because, even if we apply Velazquez’s
preferred analysis enunciated in Sellers, we find no error.
The Sixth Amendment right to counsel includes “the right of
a defendant who does not require appointed counsel to
choose who will represent him.” United States v. Gonzalez‐
Lopez, 548 U.S. 140, 144 (2006). “Consequently, a court cannot
arbitrarily or unreasonably deny a defendant the right to re‐
tain chosen counsel.” Sellers, 645 F.3d at 834. A denial of the
right to counsel of choice constitutes structural error, and a
16 Nos. 14‐1034 & 14‐1153
defendant claiming a denial of this right does not have to
show prejudice. See Gonzalez‐Lopez, 548 U.S. at 148–50.
“The right to counsel and the right to engage counsel of
one’s choosing, however, are not absolute. A court retains
wide latitude to balance the right to choice of counsel against
the needs of fairness to the litigants and against the demands
of its calendar.” Sellers, 645 F.3d at 834; see also United States
v. Carrera, 259 F.3d 818, 824–25 (7th Cir. 2001) (“Although a
person has the right to be represented by the counsel of his
choice, this right is not absolute, but qualified, and must be
balanced against the requirements of the fair and proper
administration of justice.”) (internal quotation marks omit‐
ted). For example, trial courts have broad discretion to grant
or deny a request for a continuance to substitute new coun‐
sel, and “‘[o]nly an unreasoning and arbitrary insistence up‐
on expeditiousness in the face of a justifiable request for de‐
lay’ violates the Sixth Amendment right.” Sellers, 645 F.3d at
834 (quoting Carrera, 259 F.3d at 825). “In determining
whether the decision was arbitrary, we consider both the cir‐
cumstances of the ruling and the reasons given by the
judge.” Id. at 834–35.
Generally, when reviewing the denial of a motion to sub‐
stitute counsel, we consider “the adequacy of the [district]
court’s inquiry into the defendant’s motion.” Zillges, 978
F.2d at 372; see also Sellers, 645 F.3d at 837–38; Carrera, 259
F.3d at 825. “Unless the complaint underlying a request for
substitution of counsel is sufficiently detailed, the court may
not rule on the motion without conducting a proper hearing
at which both attorney and client testify as to the nature of
their conflict.” Zillges, 978 F.2d at 372 (internal quotation
marks omitted). Here, Marcus’ motion to withdraw cited “ir‐
Nos. 14‐1034 & 14‐1153 17
reconcilable differences and defendant’s refusal to speak
and/or meet with [Marcus].” The district court set multiple
hearings on the motion, but the court declined to rule on the
motion without Velazquez being present, because the court
wanted to “hear what [Velazquez] has to say.” The next time
Velazquez appeared before the district court, on September
26, 2013, it appeared from both Marcus’ and Velazquez’s
statements that any breakdown in the attorney‐client rela‐
tionship had been repaired. We do not find that the district
court acted arbitrarily or unreasonably in relation to the mo‐
tion to withdraw prior to or during the September 26, 2013
hearing.
What remains to consider is the next and final hearing,
the December 20, 2013 sentencing. Once it became clear that
the district court would proceed with sentencing, Marcus
raised the issue of the pending motion to withdraw. Marcus
did not name substitute counsel, instead stating, “I’ll get a
public defender.” Marcus did not indicate that Velazquez
refused to communicate with Marcus, which was the only
specific reason given in the written motion on June 22, 2012;
indeed, Marcus told the court at sentencing that he had been
meeting with Velazquez—including a meeting on the day
prior to sentencing—and they had discussed the presentence
investigation report. The only reason Marcus gave for rais‐
ing the motion to withdraw at the outset of the sentencing
hearing was that it “is going to be very hard for me to con‐
tinue with this without the client.” We cannot say that the
district court acted unreasonably or arbitrarily in finding
18 Nos. 14‐1034 & 14‐1153
“[t]hat’s a self‐imposed limitation on [Velazquez] and he
imposes this limitation on [Marcus].”3
Midway through the sentencing hearing, Marcus raised
an additional ground for moving to withdraw—the state bar
complaint filed against Marcus by Velazquez’s wife. Under
other circumstances, we might find that a district court is
obliged to inquire further into such a complaint, but under
the circumstances of this case, we find no error. Marcus
made clear that the complaint had not been filed by Ve‐
lazquez, and given how late in the proceedings the matter
was raised, it was not unreasonable or arbitrary for the dis‐
trict court to continue with sentencing. Cf. Carrera, 259 F.3d
at 825 (“The untimely nature of Luis’s motion coupled with
its close proximity to trial as well as the fact that Luis was
unable to name his new counsel made it reasonable for the
district court to question whether Luis’s motion was an at‐
tempt to delay the trial.”).
In short, “[t]he right to counsel of one’s choice does not
give [a defendant] the power to manipulate his choice of
counsel to delay the orderly progress of his case.” Id. (inter‐
nal quotation marks omitted). Given the unique facts of this
case, we do not find that the district court erred in denying
Marcus’ motion to withdraw.
III. Voluntary Absence
Velazquez contends that the district court committed
clear error when it found him to be voluntarily absent and
3 As discussed infra, we find no error in the district court’s determination
that Velazquez was voluntarily absent during sentencing. If the reverse
had been true, our analysis related to the denial of the motion to with‐
draw might be different.
Nos. 14‐1034 & 14‐1153 19
sentenced him in absentia. Velazquez argues that in United
States v. Achbani, 507 F.3d 598 (7th Cir. 2007), we established
a bright‐line rule that a defendant in custody may never be
deemed voluntarily absent during sentencing.
Federal Rule of Criminal Procedure 43 guarantees a de‐
fendant the right to be present at both trial and sentencing.
However, Rule 43 also provides that a defendant in a non‐
capital case waives the right to be present at his sentencing
when he is “voluntarily absent.” Fed. R. Crim. P. 43(c)(1)(B).
We review for clear error a district court’s finding of volun‐
tary absence. Achbani, 507 F.3d at 601. “The district court
should indulge every reasonable inference against a finding
of voluntary absence. Before proceeding, the district court
must explore on the record any serious questions raised
about whether the defendant’s absence was knowing and
voluntary.” Id. at 601–02 (citation and internal quotation
marks omitted). “[H]owever, the district court’s duty to ex‐
plore such possibilities varies to the extent that defense
counsel suggests circumstances that raise a plausible doubt
that the defendant’s absence was voluntary.” Id. at 602.
Achbani states, as an “example”, that “a defendant taken
into legal custody is not voluntarily absent.” Id. (citing Lar‐
son v. Tansy, 911 F.2d 392, 397 (10th Cir. 1990)). This state‐
ment is dictum because the custody of the defendant was
not an issue in Achbani. The case cited in Achbani to support
the dictum, Larson, states: “We recognize that there may be
times when a defendant in custody could waive his right to
be present.” Larson, 911 F.2d at 397. At least two other cir‐
cuits have affirmed a district court finding that a defendant
in custody was voluntarily absent pursuant to Rule 43 when
20 Nos. 14‐1034 & 14‐1153
he or she chose to remain in a cell rather than attend trial.4
See United States v. Bradford, 237 F.3d 1306, 1311–12 (11th Cir.
2001); United States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995).
In this case, when the district court entered a drag order to
force Velazquez’s attendance, Velazquez was, in the words
of his attorney, “seriously injured.” Given the risk of injury
to an obstreperous defendant, as well as to the guards forci‐
bly moving him, this case illustrates the inadvisability of a
bright‐line rule that a defendant in custody can never be
voluntarily absent. We think the better rule is that voluntary
absence under Rule 43 should be decided on a case‐by‐case
basis, and, as indicated in Larson, there may be times when a
defendant in custody waives his right to be present. See Lar‐
son, 911 F.2d at 397; see also Nichols, 56 F.3d at 416 (“The fact
that [defendant] was in custody does not itself preclude a
voluntary waiver.”).
After examining the facts of this case, we find that the
district court did not clearly err in finding that this is one of
those—perhaps rare—times when a defendant in custody
has knowingly and voluntarily waived his right to be pre‐
sent during sentencing. By the date of sentencing, Velazquez
had a long‐standing and well‐documented aversion to ap‐
pearing voluntarily in court, and it was apparent that Ve‐
lazquez’s absence had not made his heart grow fonder to‐
ward the district court. Velazquez’s pro se filings in the
weeks leading up to sentencing asserted that he would
“never” consent to the proceedings, nor consent to be
4 We employ the same standard for determining whether a defendant is
voluntarily absent during sentencing and during trial. See Achbani, 507
F.3d at 601.
Nos. 14‐1034 & 14‐1153 21
“judged, sentenced, or compelled to appear in alleged court
via ‘drag order.’”
Velazquez was adequately informed prior to the date of
sentencing that if he failed to appear, sentencing would
nonetheless occur: the district judge informed Velazquez in
person at the September 26, 2013 hearing that he would “for‐
feit[] his right to be present” at sentencing if he refused to
appear; the November 19, 2013 minute order “advised” Ve‐
lazquez “that sentencing will proceed without him shall he
fail to appear”; and the December 18, 2013 minute order,
which reset the “status/sentencing” to December 20, 2013,
was returned to the court on the morning of December 20,
2013 with what appears to be Velazquez’s hand‐writing on
it. Moreover, on the morning of sentencing, Velazquez told
staff at the MCC that he was refusing to appear, and he later
repeated his refusal to a deputy marshal.
On appeal, Velazquez contends that the district court
erred in finding him to be voluntarily absent in the face of
Marcus’ statement at sentencing that Marcus “anticipated
[Velazquez] being here, quite frankly.” However, in light of
Marcus’ less‐than‐stellar history of predicting Velazquez’s
presence, in conjunction with the facts identified above, we
find no “circumstances that raise a plausible doubt that the
defendant’s absence was voluntary.” Achbani, 507 F.3d at
602. The district court did not clearly err in finding that Ve‐
lazquez was voluntarily absent during sentencing.
At oral argument, Velazquez’s appointed counsel sug‐
gested that the district court might have allowed Velazquez
to participate in or at least view the sentencing from the
MCC via video‐conferencing. The possibility of video‐
conferencing was not raised before the district court by any
22 Nos. 14‐1034 & 14‐1153
party. While perhaps it would be advisable in the future for
district judges facing similar intransigent behavior to inves‐
tigate the possibility of video‐conferencing, we cannot say
that the district judge clearly erred in failing to consider it in
this case.
IV. Cooperation
Velazquez’s final argument is that the district court
committed a procedural error by failing to consider Ve‐
lazquez’s proffers of cooperation in the context of the factors
set forth in 18 U.S.C. § 3553(a).
We review de novo whether a district court followed
proper procedures in sentencing, including its consideration
of the § 3553(a) factors. United States v. Trujillo‐Castillon, 692
F.3d 575, 578 (7th Cir. 2012). When considering the § 3553(a)
factors, the district court must address all of a defendant’s
principal arguments that are “not so weak as to not merit
discussion.” United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005). The judge, however, “need not spend time
addressing an argument if ‘anyone acquainted with the facts
would have known without being told why the judge had
not accepted the argument.’” United States v. Castaldi, 743
F.3d 589, 595 (7th Cir. 2014) (quoting Cunningham, 429 F.3d
at 679). “The amount of explanation needed in any particular
case depends on the circumstances, and less explanation is
typically needed when a district court sentences within an
advisory guidelines range.” United States v. Curby, 595 F.3d
794, 797 (7th Cir. 2010) (citation and internal quotation
marks omitted).
“A district court may consider a defendant’s cooperation
with the government as a basis for a reduced sentence [pur‐
Nos. 14‐1034 & 14‐1153 23
suant to § 3553(a)], even if the government has not made a
§ 5K1.1 or Rule 35 motion.” United States v. Leiskunas, 656
F.3d 732, 737 (7th Cir. 2011); see also United States v. Patrick,
707 F.3d 815, 820 (7th Cir. 2013) (“Patrick’s argument based
on his cooperation is a ground of recognized legal merit for a
reduced sentence.”) (internal quotation marks omitted). In
Castaldi, we rejected a defendant’s argument that the district
court’s sentencing explanation failed to show meaningful
consideration of defendant’s cooperation, even though the
court did not specifically address the defendant’s coopera‐
tion in relation to the § 3553(a) factors. See 743 F.3d at 594–97.
We found that, “[p]aying close attention to the context and
practical realities here, … we see that the judge was well
aware of the disclosure and cooperation.” Id. at 595–96.
During the sentencing hearing, the district court heard
Marcus’ argument regarding Velazquez’s cooperation, and
then asked the government about it. Upon hearing the gov‐
ernment’s assessment that Velazquez was not a “useful wit‐
ness,” the judge noted that he had “looked at” the coopera‐
tion issue when he first read the presentence investigation
report. The judge stated that “it was a close call,” but “in
light of the fact that he attempted to cooperate,” the judge
granted Velazquez a downward adjustment for acceptance
of responsibility in calculating the guidelines range. The
judge then made an upward adjustment for obstruction of
justice, indicating that the judge did not find Velazquez’s
post‐charge conduct to be entirely positive. The judge’s later
comments made it clear that, overall, the court viewed Ve‐
lazquez’s post‐charge conduct to be an aggravating, rather
than a mitigating, factor. The judge emphasized that Ve‐
lazquez’s “conduct on bond” shows “that he does not truly
understand the damage he’s done” and “proved … that he
24 Nos. 14‐1034 & 14‐1153
can’t keep his word.” The judge found this “post‐charge
conduct” to be “particularly important, because at that point
in time there can’t be any doubt in [Velazquez’s] mind that
he’s clearly going down the wrong path.” The court then
imposed a sentence in the middle of the guidelines range.
We find that, in this case, the district judge did not need
to “belabor the obvious or be explicit where anyone ac‐
quainted with the facts would have known without being
told why the judge did not accept the argument.” Castaldi,
743 F.3d at 597 (citing United States v. Gary, 613 F.3d 706, 709
(7th Cir. 2010)). The district judge’s discussion of “the people
who suffered because of what [Velazquez] did” and Ve‐
lazquez’s “quite bad[]” post‐charge conduct, clearly indicate
that those factors dominated the judge’s thinking. And his
earlier statement that it was a “close call” on whether Ve‐
lazquez’s cooperation merited a downward adjustment of
the guidelines shows that the judge was not particularly im‐
pressed by Velazquez’s attempts at cooperation. Cf. id. at 596
(“The judge’s explanation emphasized so strongly the harm
to the victims that we know that factor dominated his think‐
ing. And his questions to defense counsel at the beginning
and end of the hearing show that he understood but was not
moved by Castaldi’s decision to come forward and confess
after more than twenty years of fraud.”). The district judge’s
“thinking on this point was so obvious that we need not re‐
mand for him to make that point explicit in a second hear‐
ing,” id., particularly in light of the within‐guidelines sen‐
tence. See Curby, 595 F.3d at 797. We find no procedural error
in the district court’s consideration of the § 3553(a) factors.
Nos. 14‐1034 & 14‐1153 25
V. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.