FILED
NOT FOR PUBLICATION MAY 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50568
Plaintiff - Appellee, D.C. No. 3:09-cr-02644-LAB-1
v.
MEMORANDUM*
JUAN HERNANDEZ-ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted May 6, 2011
Pasadena, California
Before: NOONAN and PAEZ, Circuit Judges, and KORMAN,** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, Brooklyn, sitting by
designation.
Juan Hernandez-Ortiz, native and citizen of Mexico, appeals his conviction
and the sentence imposed for illegal reentry in violation of 8 U.S.C. § 1326. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
The district court did not abuse its discretion in denying Hernandez-Ortiz’s
motion to substitute appointed counsel. Hernandez-Ortiz provided no explanation
for his lack of trust in his attorney, nor could he point to any “striking signs of
serious conflict.” United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir.
2009) (quoting United States v. Adelzo-Gonzalez, 268 F.3d 772, 778 (9th Cir.
2001)). The record contains no indication that antagonism or hostility on his
attorney’s part limited the effectiveness of her representation, and she fully
supported Hernandez-Ortiz at the hearing on the motion to substitute. See
Adelzo-Gonzalez, 268 F.3d at 779. Moreover, as the district court properly
recognized, a defendant’s “general unreasonableness” does not suffice to show an
“irreconcilable conflict.” Mendez-Sanchez, 563 F.3d at 943, 945 (citations
omitted). The district court did not conclude that Hernandez-Ortiz’s motion was
untimely, and the court’s inquiry was adequate because its “specific and targeted
questions” established that Hernandez-Ortiz’s attorney was competent and capable
of effectively representing him. Adelzo-Gonzalez, 268 F.3d at 778.
2
The district court’s application of an 8-level increase under U.S.S.G.
§ 2L1.2(b)(1)(C) was proper because Hernandez-Ortiz’s § 496(a) conviction for
receipt of stolen property categorically qualifies as an aggravated felony. See
Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir. 2009) (“The full range
of conduct proscribed by California Penal Code section § 496(a) falls within the
generic definition of a theft offense” under 8 U.S.C. § 1101(a)(43)(G).).
AFFIRMED.
3