NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50475
Plaintiff-Appellee, D.C. No.
3:16-cr-00022-LAB-1
v.
GUSTAVO VILLASENOR-BOTELLO, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50476
Plaintiff-Appellee, D.C. No.
3:16-cr-07062-LAB-1
v.
GUSTAVO VILLASENOR-BOTELLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted April 10, 2018
Pasadena, California
Before: BOGGS,** BYBEE, and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Gustavo Villaseñor-Botello appeals his conviction and sentence for attempted
illegal reentry, in violation of 8 U.S.C. § 1326. We affirm.
1. Motion to Dismiss. First, Villaseñor-Botello argues that the district court
erred in denying his motion to dismiss the illegal-reentry charge.
The immigration judge (“IJ”) who presided over Villaseñor-Botello’s 2006
removal hearing concluded that he was statutorily ineligible for voluntary departure
because he had been convicted of an aggravated felony, specifically a 48-month
sentence for first-degree robbery in Washington. See 8 U.S.C. § 1101(a)(43)(G);
Wash. Rev. Code § 9A.56.200; 8 C.F.R. § 1240.26(b)(1)(i)(E). Villaseñor-Botello
claims that this was error because this conviction was not an aggravated felony. See
United States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017). But even if
the IJ erred in finding Villaseñor-Botello statutorily ineligible for voluntary
departure, the district court properly denied the motion to dismiss because it is not
plausible that the IJ would have exercised her discretion to grant Villaseñor-Botello
voluntary departure. See United States v. Gonzalez-Flores, 804 F.3d 920, 927–28
(9th Cir. 2015). Indeed, the IJ stated that she would not have granted Villaseñor-
Botello voluntary departure had he been eligible for it. She had ample grounds for
coming to this conclusion, since Villaseñor-Botello had few positive equities to his
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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credit and more than a few negatives ones, including recent convictions for several
armed robberies. See United States v. Valdez-Novoa, 780 F.3d 906, 917–21 (9th Cir.
2015).
2. Requests for New Counsel. Second, Villaseñor-Botello contends that the
district court abused its discretion in denying his requests to replace his federal
public defenders with new appointed counsel. We disagree.
We consider three factors when reviewing a district court’s denial of a motion
for substitution of counsel: “1) the timeliness of the motion; 2) the adequacy of the
district court’s inquiry into the defendant’s complaint; and 3) whether the asserted
conflict was so great as to result in a complete breakdown in communication and
consequent inability to present a defense.” United States v. Prime, 431 F.3d 1147,
1154 (9th Cir. 2005). Although the first factor favors Villaseñor-Botello, the latter
two do not.
The district court adequately inquired into the reasons that Villaseñor-Botello
desired new counsel. The court’s questioning, which took place over the course of
several pre-trial hearings, revealed that Villaseñor-Botello wanted new counsel
primarily because he had had a bad experience with a public defender in the past.
The court was within its discretion in finding Villaseñor-Botello’s generalized lack
of trust in his attorneys to be an inadequate reason to appoint new counsel, since
Villaseñor-Botello’s past experience with public defenders was not a legitimate
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reason for lacking confidence in his current counsel. See United States v. Roston,
986 F.2d 1287, 1292–93 (9th Cir. 1993). In sum, while the district court could have
granted Villaseñor-Botello’s timely requests for new counsel, it did not abuse its
discretion in declining to do so because it thoroughly canvassed Villaseñor-Botello’s
reasons for his requests and appropriately decided that none of these were a valid
justification for appointing new counsel.
3. Requests to Proceed Pro Se. Third, Villaseñor-Botello claims that the
district court erred in failing to address his requests to proceed pro se.
The court committed no error because his requests were not explicit and
unequivocal. See United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002).
Villaseñor-Botello requested the opportunity to represent himself at a hearing on
March 21, 2016. The district court scheduled a hearing on the matter for March 28,
2016, but that hearing appears never to have taken place. From what we can discern
from the record, Villaseñor-Botello opted not to pursue his request to proceed pro se
and instead filed several motions in limine through counsel on the day the hearing
on his request was to take place. And contrary to his assertion on appeal, Villaseñor-
Botello never made an explicit request to represent himself at a later hearing on May
31, 2016.
4. Federal Rule of Evidence 704(b). Fourth, Villaseñor-Botello argues that
the district improperly permitted the government’s expert to twice opine at trial on
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whether Villaseñor-Botello possessed the requisite mental state for attempted illegal
reentry, in violation of Federal Rule of Evidence 704(b). Even assuming arguendo
that the government’s expert’s testimony violated Rule 704(b), the district court’s
error in admitting this testimony was harmless, because a close review of the record
reveals that it is more probable than not that the testimony did not materially affect
the verdict. See United States v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015). Given
Villaseñor-Botello’s statements on the stand and during his recorded jail phone call,
the jury had ample evidence to conclude that he had the specific intent to reenter the
United States.
5. Evidence from Competency Evaluation. Fifth, Villaseñor-Botello argues
that at trial the district court erroneously admitted evidence from a pre-trial
competency evaluation, in violation of the Fifth Amendment, Sixth Amendment, and
18 U.S.C. § 4241(f).
Villaseñor-Botello’s attorneys requested a competency evaluation of their
client prior to trial. Villaseñor-Botello presented a mental-status defense to the jury,
and the government used information from Villaseñor-Botello’s competency
evaluation for rebuttal purposes only after this defense had been presented. This was
permissible under the Fifth Amendment and Sixth Amendment. See Buchanan v.
Kentucky, 483 U.S. 402, 423–25 (1987); Kansas v. Cheever, 571 U.S. 87, 93–94
(2013); Pawlyk v. Wood, 248 F.3d 815, 825, 827 (9th Cir. 2001). It also complied
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with 18 U.S.C. § 4241(f), since that statute bars the admission of a finding by the
court that the defendant is mentally competent to stand trial. No such evidence was
admitted in this case.
6. Sentence. Finally, Villaseñor-Botello appeals his 57-month sentence for
his illegal-reentry conviction.
Under the 2015 Sentencing Guidelines, a conviction for illegal reentry carries
a base offense level of eight. U.S. Sentencing Guidelines Manual § 2L1.2(a) (U.S.
Sentencing Comm’n 2015). A defendant who has a prior conviction for an
aggravated felony faces an increase of eight levels, § 2L1.2(b)(1)(C); a defendant
who has a prior conviction for any other felony confronts an increase of only four
levels, § 2L1.2(b)(1)(D). A defendant with a criminal history of VI—as Villaseñor-
Botello has—and an offense level of sixteen faces a guidelines range of 46-57
months; a criminal history of VI and an offense level of twelve carries a guidelines
range of 30-37 months.
Villaseñor-Botello argues that the district court calculated his guidelines
incorrectly because after Valdivia-Flores his Washington conviction for first-degree
robbery is not an aggravated felony. 876 F.3d at 1210. He contends that his offense
level is therefore twelve rather than sixteen, which brings his guidelines range to 30-
37 months.
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Even if the district judge used the wrong guidelines range to arrive at his
sentencing determination, the error was harmless because the judge
“acknowledge[d] that the correct Guidelines range [was] in dispute and perform[ed]
his sentencing analysis twice, beginning with both the correct and incorrect range.”
United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (per
curiam). The district judge explicitly and adequately explained why he would
impose a 57-month sentence regardless of whether the guidelines dictated a 46-57
month range or a 30-37 month range. See id. at 1031.
AFFIRMED.1
1
We deny as moot the government’s Oct. 25, 2017, motion to take judicial notice.
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FILED
United States v. Villaseñor-Botello, Nos. 16-50475, 16-50476
MAY 08 2018
WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would reverse and remand for a new trial. In my view, the district court
abused its discretion by denying Gustavo Villaseñor-Botello’s request for new
counsel.
The district court made an adequate inquiry into the source of the conflict
between Villaseñor and his lawyers from the Federal Defender’s office. The
source of that conflict was easy to understand: In an earlier criminal case in a
different district, Villaseñor had a bad experience being represented by an attorney
from a different Federal Defender’s office, and he remained convinced that he had
received deficient advice during the course of that representation. As a result, he
did not trust the public defenders who had been appointed to represent him in this
case. As one of his lawyers told the court, “he doesn’t trust that what we are
telling him is true. He doesn’t believe it.” The district court patiently tried to
explain to Villaseñor that his distrust of the lawyers from the Federal Defender’s
office was irrational, and that they were highly skilled attorneys with special
expertise representing defendants in cases like Villaseñor’s. But rightly or
wrongly, Villaseñor was not persuaded. His lawyers informed the court that, given
“the state of the relationship we have right now, we don’t feel that we can
adequately represent him.”
Page 2 of 3
The district court denied Villaseñor’s request for new counsel because the
court did not believe he had given a good enough reason for distrusting his current
counsel. In my view, though, it was not for the district court to decide that
Villaseñor’s distrust of public defenders was irrational and that he should (as the
district court put it) simply “get over that.” No one is suggesting that Villaseñor’s
inability to develop a relationship of trust and cooperation with his lawyers from
the Federal Defender’s office was manufactured. He wasn’t feigning a problem
communicating with his current counsel, as we sometimes see, as a means of
provoking a delay in the start of his trial. Villaseñor made his request for new
counsel at the outset of the case, a month before his trial was originally scheduled
to begin. And this was his first request for a new lawyer. We are not dealing with
a case in which a defendant has cycled through a succession of new lawyers, each
time finding some reason to be dissatisfied with them. Villaseñor made one
request at the start of the case for a new lawyer who was not from the Federal
Defender’s office. The district court had no sound reason for denying that request,
even if the court doubted the wisdom or rationality of Villaseñor’s general distrust
of public defenders.
That Villaseñor was prejudiced by the district court’s refusal to appoint new
counsel cannot be doubted. He never did “get over” his distrust of the lawyers
Page 3 of 3
from the Federal Defender’s office, and he therefore did not communicate with
them candidly about even the most basic matters necessary to allow counsel to
adequately represent him. The most dramatic evidence of that came during trial,
when Villaseñor announced without warning that he would be taking the stand to
testify in his own defense. His lawyers had no opportunity to prepare Villaseñor
beforehand and, not surprisingly, he made a series of damaging admissions on both
direct and cross-examination that undermined the defense Villaseñor’s lawyers had
attempted to present on his behalf.
When a defendant does not trust his attorneys enough to tell them ahead of
time that he plans to testify, I think it’s fair to say there has been “a significant
breakdown in communication that substantially interfered with the attorney-client
relationship.” United States v. Velazquez, 855 F.3d 1021, 1035–36 (9th Cir. 2017)
(internal quotation marks omitted). I would reverse the conviction and remand for
a new trial at which Villaseñor is represented by a lawyer who can adequately
defend him.