United States v. Jesus Carasco

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2024
• Docket: 22-50038
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50038

Plaintiff-Appellee, D.C. No. 8:19-cr-00169-JVS-1 v.

JESUS ERIC CARASCO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted September 11, 2024 Pasadena, California

Before: R. NELSON, MILLER, and DESAI, Circuit Judges.

Jesus Eric Carasco (“Carasco”) appeals his conviction of two counts of

possession with intent to distribute controlled substances in violation of 21 U.S.C.

§ 841(a)(1) and one count of possession of a firearm in furtherance of drug

trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i). Carasco challenges the

district court’s denial of reappointment of counsel, denial of a hearing under Franks

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v. Delaware, 438 U.S. 154 (1978), and reliance on his career offender status at

sentencing. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. We analyze the denial of a request for the reappointment of counsel “as

either a denial of a continuance or as a denial of a motion to substitute counsel.”

United States v. Thompson, 587 F.3d 1165, 1173 (9th Cir. 2009). The district court’s

“primary reasons for not allowing a defendant new counsel may determine which

analysis to apply.” United States v. Nguyen, 262 F.3d 998, 1001–02 (9th Cir. 2001).

Here, the district court justified its denial of Carasco’s request because it already

granted multiple continuances and did not want to further delay trial. We thus treat

the court’s denial of Carasco’s request for the reappointment of counsel as a denial

of a continuance. Thompson, 587 F.3d at 1173–74.

To determine if the denial was fair and reasonable, we must consider the

following factors: “[1] whether the continuance would inconvenience witnesses, the

court, counsel, or the parties; [2] whether other continuances have been granted; [3]

whether legitimate reasons exist for the delay; [4] whether the delay is the

defendant’s fault; and [5] whether a denial would prejudice the defendant.” Id. at

1174. We review a denial of “a continuance that arguably implicates a defendant’s

right to counsel for abuse of discretion.” Id. at 1171.

The district court did not abuse its discretion. A continuance would have

required the district court to reschedule other trials on its docket, depriving some

2 litigants of a trial through the end of the year. See United States v. Leavitt, 608 F.2d

1290, 1293–94 (9th Cir. 1979). Moreover, this was not Carasco’s first continuance—

the district court previously granted three continuances at his request, delaying his

trial by a year and a half. And the record shows that Carasco was the sole reason for

the delay. He requested substitution of counsel several times, fired his standby

counsel shortly before trial, and filed the instant request to reappoint counsel one

week before trial. In light of Carasco’s dilatory conduct, the district court “act[ed]

within its broad discretion in denying [his request] for a continuance.” United States

v. Garrett, 179 F.3d 1143, 1147 (9th Cir. 1999) (en banc).

2. We review the denial of a Franks hearing de novo. United States v.

Ritter, 752 F.2d 435, 439 (9th Cir. 1985). A defendant seeking a Franks hearing

must (1) allege specifically which portions of the warrant affidavit are claimed to be

false; (2) contend that the false statements or omissions were deliberately or

recklessly made; (3) provide a detailed offer of proof, including affidavits; (4) only

challenge the veracity of the affiant; and (5) show that the challenged statements are

necessary to find probable cause. United States v. DiCesare, 765 F.2d 890, 894–95

(9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985).

Carasco makes only conclusory allegations that statements in the warrant

affidavits are false and does not adequately explain why removal of these statements

3 would eliminate probable cause. See United States v. Martinez-Garcia, 397 F.3d

1205, 1208–09, 1217 (9th Cir. 2005). Carasco is not entitled to a Franks hearing.

3. Carasco waived his challenge to the length of his sentence, and we

decline to review it. See United States v. Streich, 560 F.3d 926, 929 n.1 (9th Cir.

2009) (“An error to which one waives objection is no error at all, and leaves a court

of appeals with nothing to review.” (citing United States v. Olano, 507 U.S. 725,

732–33 (1993))); see also United States v. Rusnak, 981 F.3d 697, 705 (9th Cir.

2020).

AFFIRMED.