United States v. Saldivar-Trujillo

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Saldivar-Trujillo No. 03-1728 ELECTRONIC CITATION: 2004 FED App. 0281P (6th Cir.) File Name: 04a0281p.06 Appellant. Daniel Y. Mekaru, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC UNITED STATES COURT OF APPEALS DEFENDERS OFFICE, Grand Rapids, Michigan, for Appellant. Daniel Y. Mekaru, ASSISTANT UNITED FOR THE SIXTH CIRCUIT STATES ATTORNEY, Grand Rapids, Michigan, for _________________ Appellee.

UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - - OPINION - No. 03-1728 _________________ v. - > RONALD LEE GILMAN, Circuit Judge. Martin Saldivar- , Trujillo, a convicted felon who had previously been deported MARTIN SALDIVAR-TRUJILLO, - Defendant-Appellant. - as an illegal alien, pled guilty to one count of again being present in the United States without authorization. His N renewed presence violated 8 U.S.C. § 1326(a) and (b)(2). The Appeal from the United States District Court prior aggravated felony occurred in Wisconsin, where for the Western District of Michigan at Grand Rapids. Saldivar-Trujillo was convicted of possessing marijuana with No. 02-00213—Richard A. Enslen, District Judge. the intent to deliver. After he pled guilty, but before the sentencing hearing, Saldivar-Trujillo sent four letters to the Argued: July 8, 2004 district court expressing his unhappiness with his court- appointed attorney and requesting that the court appoint new Decided and Filed: August 26, 2004 counsel.

Before: KRUPANSKY and GILMAN, Circuit Judges; At the sentencing hearing, the district court denied MAYS, District Judge.* Saldivar-Trujillo’s request for substitute counsel after hearing from both Saldivar-Trujillo and his defense counsel about the _________________ issue. The district court subsequently granted Saldivar- Trujillo a three-level sentence reduction for acceptance of COUNSEL responsibility and sentenced him to 96 months in prison followed by three years of supervised release. On appeal, ARGUED: Paul L. Nelson, FEDERAL PUBLIC Saldivar-Trujillo contends that the district court abused its DEFENDERS OFFICE, Grand Rapids, Michigan, for discretion by denying his request for substitute counsel. For the reasons set forth below, we AFFIRM the judgment of the district court. * The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee, sitting by designation.

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I. BACKGROUND counsel had failed to attend a meeting with Saldivar-Trujillo and the investigator to discuss the objections and had failed Saldivar-Trujillo pled guilty on March 18, 2003. Between to respond to the objections in any way. Saldivar-Trujillo that date and the date of his sentencing hearing on June 4, further contended in the letter that he had told defense counsel 2003, he sent the district court four letters regarding the several times that he was not happy with counsel’s performance of his court-appointed attorney. The record does performance and wanted a substitute attorney to represent not contain copies of the letters, but during the sentencing him. hearing the district court provided an oral summary of their contents. In his first letter to the district court, sent on April The district court inquired into Saldivar-Trujillo’s 3, 2003, Saldivar-Trujillo stated that “his counsel did not keep complaints at the sentencing hearing. First the court heard him informed regarding his case and forced him to plead from Saldivar-Trujillo, who contested the 16-level sentence guilty despite his lack of understanding of what he is guilty increase based on his prior aggravated felony conviction. The of . . . .” Saldivar-Trujillo sent the court another letter on court then heard from defense counsel, who explained that he May 5, 2003, in which he stated that “he told his lawyer and had walked out of the meeting with Saldivar-Trujillo and the the probation officer that he was not happy with his investigator after he was informed that Saldivar-Trujillo representation and would like alternative representation” planned to hire a private defense attorney. Counsel said that because defense counsel had walked out of a meeting with he subsequently called the investigator several times to ask Saldivar-Trujillo and the presentence investigator. whether she had heard from the private attorney (who was never in fact hired). Five days later, on May 10, 2003, Saldivar-Trujillo sent the court a third letter stating that Saldivar-Trujillo’s attorney also explained to the district court that he had met with his client in order to discuss the he attempted to tell his lawyer he wanted to object to the Presentence Report. After discussing a majority of the Report 16 point increase in the offense level which is indicated with Saldivar-Trujillo, defense counsel terminated the in Paragraph 23 of the report. Paragraph 23 provides a meeting because it “did not go well.” Saldivar-Trujillo 16 level enhancement on the grounds that under thereafter filed his own objections to the Report. Defense guidelines 2L1.2(b)(1)(A)(i), the offense level has to be counsel did not respond to these objections, however, because increased by 16 levels because he was convicted of he did not agree with them. possession with intent to deliver a controlled substance in Wisconsin[,] which is an aggravated felony, and he Defense counsel refused to provide additional information was deported after that in 1998. regarding his problems with Saldivar-Trujillo to the district court on the ground that their private conversations were Saldivar-Trujillo sent a fourth letter to the court on June 4, protected by the attorney-client privilege. The district court 2003, the day of the sentencing hearing. In his letter, then asked for comments by the prosecutor, who argued that Saldivar-Trujillo claimed that defense counsel had not Saldivar-Trujillo was not entitled to the appointment of explained the indictment to him and had tricked him into substitute counsel. pleading guilty. The letter also alleged that Saldivar-Trujillo had prepared his own written objections to the Presentence After hearing from Saldivar-Trujillo and the attorneys for Report and sent them to the investigator, but that defense both sides, the district court denied Saldivar-Trujillo’s No. 03-1728 United States v. Saldivar-Trujillo 5 6 United States v. Saldivar-Trujillo No. 03-1728

request. The court first explained that cases from the Sixth There is nothing in the record to indicate that the Circuit required it to consider “the timeliness of the defense counsel has not been an effective advocate on defendant’s motion, whether the conflict between the attorney behalf of the defendant. Additionally[,] I happen to and client was so great it resulted in a total lack of know defense counsel to be far more than competent as communication thereby preventing an adequate defense, and a lawyer for a person charged with a crime, and I also whether the accused’s right to counsel of his choice know he is a committed advocate if ever an advocate I’ve outweighs the public interest in the prompt and efficient seen. administration of justice.” Applying these factors, the district court reasoned as follows: Finally[,] I have to consider whether the balance weighs in favor of the accused’s right to counsel of his The Court was first made aware of defendant’s desire to choice or the public’s interest in the prompt and efficient substitute his lawyer . . . on April 3rd, two months before administration of justice. At this stage, the stage of his sentencing. That factor weighs in favor of the sentencing, [a] guilty plea has been entered, sentencing defendant’s request. With respect to the adequacy of the is under way, the public’s interest in prompt communication between defendant and his counsel, it is administration of justice is great. Defendant should not clear to me from defendant’s letters, if nothing else, and be permitted to disrupt the judicial system by filing what he said today, that there was not a total lack of motions for substitution of counsel without good cause. communication, in his letter he references attempts to In this case, the defendant is represented by more than obtain information from his lawyer, he expresses adequate counsel. He previously appeared before me [at dissatisfaction with the responses he got from his lawyer, the guilty plea hearing] and affirmed his satisfaction with not with the [lack of] opportunity or his [in]ability to talk counsel, and that is apparent in the transcript[,] and to his lawyer or contact his lawyer. willingly entered a plea. I am concerned that his motion is an attempt to delay his sentence and not a legitimate Furthermore, I find that he willingly and knowingly motion for substitute counsel. In any event, he has failed entered a plea on the charges he now claims not to to show good cause for me to substitute counsel, and I understand, that’s clear from the transcript and from his find the public interest[] in the prompt and efficient letter to me. . . . administration of justice outweighs his right to counsel of his choice. Therefore, his letter motions and his oral [He] argued that his lawyer’s failure to object to motion to substitute counsel is denied. certain items in the [Presentence Report] make[s] his counsel inadequate, specifically he is concerned about In addition to discussing his representation of Saldivar- the 16 level increase in the offense level as a result of Trujillo, defense counsel argued at the sentencing hearing that having been deported after a criminal conviction for an the district court should reduce his client’s sentence for aggravated felony. As a matter of law I find defense acceptance of responsibility. The prosecutor agreed that a counsel has absolutely no basis to object to that increase, three-level reduction was appropriate, and the court and such an objection would be frivolous. According to accordingly reduced Saldivar-Trujillo’s offense level by that Guidelines 2L1.2(b)(1)(A)(i), his base offense level is amount. properly increased 16 levels. No. 03-1728 United States v. Saldivar-Trujillo 7 8 United States v. Saldivar-Trujillo No. 03-1728

II. ANALYSIS Granting Saldivar-Trujillo’s request for substitute counsel, moreover, would actually have impeded the efficient A. Standard of review administration of justice because his complaints about his attorney’s performance were frivolous. Saldivar-Trujillo’s “An indigent defendant has no right to have a particular essential grievance was that his attorney would not object to attorney represent him and therefore must demonstrate ‘good the 16-level enhancement based upon his prior aggravated cause’ to warrant substitution of counsel.” United States v. felony conviction. As the government points out in its brief, Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). We will reverse a however, district court’s decision regarding an indigent defendant’s motion for substitute counsel only if the district court has Defendant’s complaint stemmed from an apparent abused its discretion. Id. at 1130 n.8. In order to decide misunderstanding of the law. The Defendant whether a district court has abused its discretion, we must misconstrued the legal significance of his prior drug consider conviction and removal. The district court properly held that it was not necessary for the conviction to state the timeliness of the motion; the adequacy of the court’s “aggravated” and it was not necessary for the removal to inquiry into the defendant’s complaint; and whether the be as a result of his conviction. conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an Any objection by defense counsel to this 16-level increase adequate defense. . . . Further, [c]onsideration of such would therefore have been frivolous, and the district court motions requires a balancing of the accused’s right to properly refused Saldivar-Trujillo’s request to appoint counsel of his choice and the public’s interest in the substitute counsel who would make such an argument. As for prompt and efficient administration of justice. Saldivar-Trujillo’s allegation that defense counsel had not explained the indictment to him and had tricked him into Id. (citations and quotation marks omitted). pleading guilty, the district court correctly concluded that the transcript of the guilty plea hearing demonstrated that B. The district court did not abuse its discretion by Saldivar-Trujillo fully understood the elements of the offense. denying Saldivar-Trujillo’s motion for substitute counsel The only potential harm to Saldivar-Trujillo’s interests occurred when defense counsel walked out of the meeting Saldivar-Trujillo’s request for substitute counsel was timely with the presentence investigator. Because the attorney left, because he wrote his first letter to the judge a full two months the investigator was unable to determine whether Saldivar- before the sentencing hearing. But all of the other Iles factors Trujillo had accepted responsibility for his actions, thereby weigh against the granting of his request. The district court entitling him to a sentence reduction. But defense counsel properly concluded “that there was not a total lack of remedied this potential harm to Saldivar-Trujillo by communication” because “in his letter he references attempts successfully arguing at the sentencing hearing for the three- to obtain information from his lawyer, he expresses level reduction. Defense counsel’s actions at the meeting dissatisfaction with the responses he got from his lawyer, not therefore did not constitute good cause for the district court to with the [lack of] opportunity or his [in]ability to talk to his grant Saldivar-Trujillo substitute counsel. lawyer or contact his lawyer.” No. 03-1728 United States v. Saldivar-Trujillo 9 10 United States v. Saldivar-Trujillo No. 03-1728

The only Iles factor that the district court did not consider, based solely upon the facts admitted by Saldivar-Trujillo as because it was not in a position to do so, is “the adequacy of part of his guilty plea. Blakely therefore does not affect the the court’s inquiry into the defendant’s complaint . . . .” 906 validity of his sentence. See United States v. Lucca, No. F.2d at 1130 n.8. This is for us to decide. Our review of the 03-2859, 2004 WL 1698784, at *6 (8th Cir. July 30, 2004) sentencing hearing shows that the district court summarized (holding that Blakely was not implicated where the defendant the contents of Saldivar-Trujillo’s letters and allowed was sentenced based solely upon the facts admitted as part of Saldivar-Trujillo, his defense counsel, and the prosecutor the his guilty plea). opportunity to address the complaint at issue. We conclude that this inquiry was adequate because it allowed all of the III. CONCLUSION interested parties to present their respective evidence and arguments. For all of the reasons set forth above, we AFFIRM the judgment of the district court. The district court correctly determined “that there was not a total lack of communication” between Saldivar-Trujillo and his attorney, that Saldivar-Trujillo was not prejudiced in any way by his attorney’s performance, and that Saldivar- Trujillo’s right to the counsel of his choice was outweighed by the public interest in the prompt and efficient administration of justice. Because Saldivar-Trujillo did not demonstrate good cause to warrant the substitution of counsel, the district court’s denial of his request was not an abuse of discretion. C. Legality of the sentence under Blakely v. Washington Saldivar-Trujillo’s final contention is that his sentence should be vacated pursuant to Blakely v. Washington, __ U.S. __, 124 S. Ct. 2351 (2004), where the Supreme Court struck down a Washington-state sentencing proceeding in which the judge imposed punishment that the jury’s verdict alone did not allow. But even if we were to assume for the sake of argument that Blakely applies to cases involving the United States Sentencing Guidelines (an issue very much in dispute at the present time), the Supreme Court’s decision would not require us to vacate Saldivar-Trujillo’s sentence. The Blakely Court explained that a sentence may be imposed by a judge if it is based solely on the “facts reflected in the jury verdict or admitted by the defendant.” __ U.S. at __, 124 S.Ct. at 2537 (emphasis in original). The sentence in the present case was