FILED NOT FOR PUBLICATION OCT 30 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 23-573, 23-575
Plaintiff-Appellee, D.C. Nos. 1:17-cr-00104-JMS-KJM-1 v. 1:21-cr-00096-JMS-1
LEIHINAHINA SULLIVAN, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding
Submitted October 9, 2024** Honolulu, Hawaii
Before: MURGUIA, Chief Judge, and GRABER and MENDOZA, Circuit Judges.
Leihinahina Sullivan timely appeals her conviction. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. We review de novo “‘whether an appellant has waived [the] right to
appeal’ pursuant to the terms of a plea agreement.” United States v. Wells, 29 F.4th
580, 583 (9th Cir. 2022) (citation omitted). Sullivan’s breach-of-plea-agreement
and ineffective-assistance-of-counsel claims are not barred by the appeal waiver.
We have held that “[a] defendant is released from his or her appeal waiver if the
government breaches the plea agreement,” United States v. Hernandez-Castro, 814
F.3d 1044, 1045 (9th Cir. 2016), and the agreement provides that Sullivan may
bring “a challenge . . . based on a claim of ineffective assistance of counsel.”
Moreover, assuming without deciding that the plea waiver does not apply to
Sullivan’s challenge to the revocation of her pro se status, this panel finds the
district court’s post-plea revocation of Sullivan’s pro se status was proper. See
United States v. Atherton, 106 F.4th 888, 897–98 (9th Cir. 2024).
2. The government did not breach the plea agreement with statements
made at sentencing. “A defendant’s claim that the government breached its plea
agreement is generally reviewed de novo.” United States v. Whitney, 673 F.3d 965,
970 (9th Cir. 2012). But because Sullivan’s counsel did not move to withdraw
Sullivan’s plea due to the government’s alleged breach, we review for plain error.
Id.
At sentencing, the government referred to Sullivan as a “one-woman
criminal enterprise” and asserted that “[t]he truly staggering amount of criminal
2 activity that Sullivan engaged in for over a decade is not reflected fully in the
Guidelines calculation in this case.” After discussing incidents of unproven or
uncharged offenses—including fraud, theft, and forgery—the government
continued: “[t]he Guidelines calculation and the Court’s commensurate findings
fall substantially short of covering the scope and impact of Sullivan’s conduct in
this case.” Sullivan argues that the government was precluded from making those
statements at sentencing because the plea agreement states that “the charges to
which the defendant is pleading guilty adequately reflect the seriousness of the
actual offense behavior.”
Contrary to Sullivan’s claim, these statements did not breach the plea
agreement. The quoted provision in the plea agreement was not a promise to avoid
discussion of uncharged and unproven offenses. See United States v. Streich, 560
F.3d 926, 930 (9th Cir. 2009) (holding that it was not a breach when the
government based its sentencing recommendation on uncharged conduct, despite a
provision in the plea agreement stating that the government would not prosecute
the defendant for additional offenses). Indeed, other portions of the plea agreement
explained that several issues were unresolved and would be discussed at
sentencing.
Further, the district court properly considered the type of material that the
government discussed at sentencing. See 18 U.S.C. § 3661 (“No limitation shall be
3 placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”); United States v.
Christensen, 732 F.3d 1094, 1104 n.2 (9th Cir. 2013) (“[A] sentencing court may
rely on any evidence relating to a defendant’s background, character, and conduct
when considering the sentencing factors found in 18 U.S.C. § 3553(a).”).
3. “We have never definitively articulated the standard of review that
applies to a defendant’s claim on direct appeal of a criminal conviction that [the
defendant’s] Sixth Amendment right to self-representation was violated.” United
States v. Engel, 968 F.3d 1046, 1049 (9th Cir. 2020). The Second, Third, Fifth,
Eighth, and Tenth Circuits employ a de novo review, and the Seventh Circuit
reviews for abuse of discretion. Id. at 1049–50. Because the district court’s
revocation of Sullivan’s pro se status was proper under either standard, we need
not resolve this debate.
“[T]he right to self-representation is not absolute[.]” United States v.
Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010). “A district court ‘may terminate
self-representation by a defendant who deliberately engages in serious and
obstructionist misconduct,’ or who is unable or unwilling ‘to abide by rules of
procedure and courtroom protocol.’” Engel, 968 F.3d at 1050 (internal citation
omitted) (first quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975); and
4 then quoting McKaskle v. Wiggins, 465 U.S. 168, 173 (1984)). And “serious and
obstructionist misconduct” may include “engag[ing] in heated discussions with the
judge” and failing to obey the court’s rulings. Id. at 1050–51 (internal quotation
marks and citations omitted).
The district court revoked Sullivan’s pro se status because she disrupted
courtroom proceedings on many occasions by arguing with the judge so intensely
that the proceedings were paused, and because she lacked candor with the court.
Her conduct certainly amounted to “serious and obstructionist misconduct.” Id.
Plus, Sullivan failed to obey the court’s rulings by continuing to file untimely
motions or motions on issues previously ruled on by the court. See id. at 1051
(“Had Engel repeatedly violated the court’s orders, that might be sufficiently
disruptive to revoke his pro se status.”).
4. Finally, Sullivan and appointed counsel did not have a conflict of
interest requiring a remand for resentencing. “A claim that trial counsel had a
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FILED NOT FOR PUBLICATION OCT 30 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 23-573, 23-575
Plaintiff-Appellee, D.C. Nos. 1:17-cr-00104-JMS-KJM-1 v. 1:21-cr-00096-JMS-1
LEIHINAHINA SULLIVAN, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding
Submitted October 9, 2024** Honolulu, Hawaii
Before: MURGUIA, Chief Judge, and GRABER and MENDOZA, Circuit Judges.
Leihinahina Sullivan timely appeals her conviction. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. We review de novo “‘whether an appellant has waived [the] right to
appeal’ pursuant to the terms of a plea agreement.” United States v. Wells, 29 F.4th
580, 583 (9th Cir. 2022) (citation omitted). Sullivan’s breach-of-plea-agreement
and ineffective-assistance-of-counsel claims are not barred by the appeal waiver.
We have held that “[a] defendant is released from his or her appeal waiver if the
government breaches the plea agreement,” United States v. Hernandez-Castro, 814
F.3d 1044, 1045 (9th Cir. 2016), and the agreement provides that Sullivan may
bring “a challenge . . . based on a claim of ineffective assistance of counsel.”
Moreover, assuming without deciding that the plea waiver does not apply to
Sullivan’s challenge to the revocation of her pro se status, this panel finds the
district court’s post-plea revocation of Sullivan’s pro se status was proper. See
United States v. Atherton, 106 F.4th 888, 897–98 (9th Cir. 2024).
2. The government did not breach the plea agreement with statements
made at sentencing. “A defendant’s claim that the government breached its plea
agreement is generally reviewed de novo.” United States v. Whitney, 673 F.3d 965,
970 (9th Cir. 2012). But because Sullivan’s counsel did not move to withdraw
Sullivan’s plea due to the government’s alleged breach, we review for plain error.
Id.
At sentencing, the government referred to Sullivan as a “one-woman
criminal enterprise” and asserted that “[t]he truly staggering amount of criminal
2 activity that Sullivan engaged in for over a decade is not reflected fully in the
Guidelines calculation in this case.” After discussing incidents of unproven or
uncharged offenses—including fraud, theft, and forgery—the government
continued: “[t]he Guidelines calculation and the Court’s commensurate findings
fall substantially short of covering the scope and impact of Sullivan’s conduct in
this case.” Sullivan argues that the government was precluded from making those
statements at sentencing because the plea agreement states that “the charges to
which the defendant is pleading guilty adequately reflect the seriousness of the
actual offense behavior.”
Contrary to Sullivan’s claim, these statements did not breach the plea
agreement. The quoted provision in the plea agreement was not a promise to avoid
discussion of uncharged and unproven offenses. See United States v. Streich, 560
F.3d 926, 930 (9th Cir. 2009) (holding that it was not a breach when the
government based its sentencing recommendation on uncharged conduct, despite a
provision in the plea agreement stating that the government would not prosecute
the defendant for additional offenses). Indeed, other portions of the plea agreement
explained that several issues were unresolved and would be discussed at
sentencing.
Further, the district court properly considered the type of material that the
government discussed at sentencing. See 18 U.S.C. § 3661 (“No limitation shall be
3 placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”); United States v.
Christensen, 732 F.3d 1094, 1104 n.2 (9th Cir. 2013) (“[A] sentencing court may
rely on any evidence relating to a defendant’s background, character, and conduct
when considering the sentencing factors found in 18 U.S.C. § 3553(a).”).
3. “We have never definitively articulated the standard of review that
applies to a defendant’s claim on direct appeal of a criminal conviction that [the
defendant’s] Sixth Amendment right to self-representation was violated.” United
States v. Engel, 968 F.3d 1046, 1049 (9th Cir. 2020). The Second, Third, Fifth,
Eighth, and Tenth Circuits employ a de novo review, and the Seventh Circuit
reviews for abuse of discretion. Id. at 1049–50. Because the district court’s
revocation of Sullivan’s pro se status was proper under either standard, we need
not resolve this debate.
“[T]he right to self-representation is not absolute[.]” United States v.
Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010). “A district court ‘may terminate
self-representation by a defendant who deliberately engages in serious and
obstructionist misconduct,’ or who is unable or unwilling ‘to abide by rules of
procedure and courtroom protocol.’” Engel, 968 F.3d at 1050 (internal citation
omitted) (first quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975); and
4 then quoting McKaskle v. Wiggins, 465 U.S. 168, 173 (1984)). And “serious and
obstructionist misconduct” may include “engag[ing] in heated discussions with the
judge” and failing to obey the court’s rulings. Id. at 1050–51 (internal quotation
marks and citations omitted).
The district court revoked Sullivan’s pro se status because she disrupted
courtroom proceedings on many occasions by arguing with the judge so intensely
that the proceedings were paused, and because she lacked candor with the court.
Her conduct certainly amounted to “serious and obstructionist misconduct.” Id.
Plus, Sullivan failed to obey the court’s rulings by continuing to file untimely
motions or motions on issues previously ruled on by the court. See id. at 1051
(“Had Engel repeatedly violated the court’s orders, that might be sufficiently
disruptive to revoke his pro se status.”).
4. Finally, Sullivan and appointed counsel did not have a conflict of
interest requiring a remand for resentencing. “A claim that trial counsel had a
conflict of interest with the defendant is a mixed question of law and fact and is
reviewed de novo by the appellate court.” United States v. Walter-Eze, 869 F.3d
891, 900 (9th Cir. 2017) (quoting United States v. Nickerson, 556 F.3d 1014, 1018
(9th Cir. 2009)). The record on appeal is sufficiently developed to permit review
on direct appeal. See United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000)
(noting that, “when the record on appeal is sufficiently developed to permit review
5 and determination of the” ineffective assistance of counsel claim, it may be
reviewed on direct appeal (citation omitted)).
When an “actual conflict” exists between a defendant and the defendant’s
lawyer, the Sixth Amendment protects that defendant from forced representation by
that lawyer. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994). Sullivan
argues that her counsel operated under an “actual conflict.” We disagree. “‘[A]n
actual conflict of interest’ mean[s] precisely a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.” Mickens v
Taylor, 535 U.S. 162, 171 (2002). Here, counsel’s performance was not affected.
For instance, counsel advocated for a sentence of 84 months, which was well
below the Guidelines calculation and the probation department’s recommendation.
Moreover, the civil suit on which Sullivan relies was dismissed with
prejudice before counsel was served. And Sullivan has an extensive history with
six prior lawyers: one retained counsel, three appointed counsel, and two appointed
standby counsel. We have previously declined to find an actual conflict of interest
under similar circumstances. See United States v. Plascencia-Orozco, 852 F.3d
910, 916–18 (9th Cir. 2017) (upholding the district court’s decision to deny a
defendant’s request for new counsel, even though the defendant had filed a state
bar complaint against his attorney, where (1) the defendant had a history of filing
similar complaints against prior counsel and (2) the defendant’s requests amounted
6 to “dilatory tactics rather than genuine complaints about his attorneys’
performance”). The district court did not err in refusing to remove appointed
counsel.
AFFIRMED.