FILED
NOT FOR PUBLICATION APR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50396
Plaintiff - Appellee, D.C. No. 2:08-cr-00322-R-1
v.
MEMORANDUM*
DASHON LAVAR RICHARDSON, AKA
Capone, AKA J, AKA Jay,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted April 9, 2014**
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Dashon Richardson appeals the district court’s order denying his motion for
appointment of counsel in connection with his motion for a reduction of his
sentence pursuant to 18 U.S.C. § 3582(c)(2). We affirm the district court’s ruling.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“[T]he Supreme Court has held . . . that the constitutional right to counsel
extends only through the defendant’s first appeal. After that, the decision whether
to appoint counsel rests in the discretion of the district court.” United States v.
Townsend, 98 F.3d 510, 513 (9th Cir. 1996) (quoting United States v. Whitebird,
55 F.3d 1007, 1011 (5th Cir. 1995)). Accordingly, Richardson is not entitled to
counsel under the Sixth Amendment. Id. at 512–13.
Nor is Richardson entitled to counsel under the Due Process Clause. The
right to counsel in post-conviction proceedings, even those which touch on a
significant liberty interest, is considered on a “case-by-case” basis, taking into
consideration “the peculiarities of particular cases.” Gagnon v. Scarpelli, 411 U.S.
778, 788–89 (1973). Richardson’s particular circumstances, however, “presented
no specially troublesome points of law, either procedural or substantive.” Lassiter
v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 32 (1981).
All of the arguments Richardson claims he could have presented with the
benefit of counsel have either been squarely rejected or severely undermined. See
United States v. Davis, 739 F.3d 1222, 1225–26 (9th Cir. 2014) (Separation of
Powers argument); Peugh v. United States, 133 S. Ct. 2072 (2013) and United
States v. Johns, 5 F.3d 1267 (9th Cir. 1993) (Ex Post Facto Clause argument);
United States v. Pleasant, 704 F.3d 808, 811 (9th Cir. 2013), cert denied, 134 S.
2
Ct. 824 (2013) (interpreting Freeman v. United States, 131 S. Ct. 2685 (2011));
United States v. Tercero, 734 F.3d 979, 981–84 (9th Cir. 2013) (rejecting argument
that U.S.S.G. § 1B1.10 conflicts with the Fair Sentencing Act and holding that
Administrative Procedure Act’s arbitrary and capricious standard did not apply to
promulgation of § 1B1.10). Accordingly, the district court’s decision not to
appoint counsel for Richardson did not violate his Due Process rights.
Richardson also contends that the district court was unaware that it had the
discretion to appoint counsel, and he asks us to remand his case for further
consideration. Absent a contrary indication, we “assume that the district court
knows and applies the law correctly” when it has the power to make discretionary
rulings. See, e.g., United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.
1991). The district court’s order, which noted that Richardson was not “entitled to
appointed counsel,” does not indicate that the district court failed to appreciate its
power to appoint counsel.
AFFIRMED.
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