Opinion
No. 18-30247
12-24-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARCELO OMAR SANCHEZ-ESPINOSA, AKA Omar, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 1:15-cr-00130-EJL-1 MEMORANDUM Appeal from the United States District Court for the District of Idaho
Edward J. Lodge, District Judge, Presiding Argued and Submitted December 9, 2019 Seattle, Washington Before: GRABER, BERZON, and HIGGINSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
Marcelo Sanchez-Espinosa appeals the sentence imposed following his guilty plea to conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C § 841(a)(1) and (b)(1)(A). We vacate the sentence and remand for resentencing.
The district court's denial of Mendoza's initial motion to withdraw relied on an incorrect legal standard and violated Sanchez-Espinosa's Sixth Amendment right to counsel of choice. Because Sanchez-Espinosa hired Mendoza, Sanchez-Espinosa had a qualified constitutional right to discharge him "for any reason or no reason." United States v. Rivera-Corona, 618 F.3d 976, 980 (9th Cir. 2010); accord United States v. Brown, 785 F.3d 1337, 1340 (9th Cir. 2015). It was apparent that Sanchez-Espinosa "instigated the withdrawal motion," Brown, 785 F.3d at 1347, as Mendoza made the initial motion to withdraw "at my client's behest." The district court understood the motion to be Sanchez-Espinosa's request to substitute counsel.
We review for abuse of discretion because Sanchez-Espinosa does not raise the issue of substitution of counsel for the first time on appeal. --------
When it ruled on the motion to withdraw, the district court did not recognize that Mendoza was retained. The court's written order misidentified Sanchez-Espinosa as "an indigent defendant request[ing] new court-appointed counsel in place of an existing appointed attorney." The court then incorrectly applied "extent-of-conflict" review, the standard used when a defendant seeks to substitute appointed counsel for appointed counsel. Rivera-Corona, 618 F.3d at 979; see Brown, 785 F.3d at 1343. As a result of these errors, the district court violated Sanchez-Espinosa's Sixth Amendment right to counsel of choice. See Rivera-Corona, 618 F.3d at 979; Brown, 785 F.3d at 1344.
We vacate and remand for resentencing only. Our disposition does not disturb Sanchez-Espinosa's conviction, as the district court received and ruled on his request to substitute counsel more than one month after his guilty plea was accepted as final.
VACATED and REMANDED.