FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-50117
v.
D.C. No.
10-CR-03202-BEN
FRANCISCO BELTRAN VALDEZ, AKA
Carlos Zazueta Villa, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted October 12, 2011*
Pasadena, California
Filed November 21, 2011
Before: Edward Leavy and Kim McLane Wardlaw,
Circuit Judges, and William K. Sessions III,
District Judge.**
Opinion by Judge Sessions
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William K. Sessions III, District Judge, United States
District Court for the District of Vermont, sitting by designation.
20317
UNITED STATES v. BELTRAN VALDEZ 20319
COUNSEL
Gerson Simon, San Marino, California, for the defendant-
appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant U.S. Attorney, Chief, Appellate Section Criminal
Division; Charlotte E. Kaiser, Assistant U.S. Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
SESSIONS, District Judge:
Francisco Beltran Valdez appeals from a February 28,
2011, oral order denying his request for appointment of new
counsel and permitting him to proceed pro se. He is charged
in a superseding indictment with one count of being a previ-
ously deported alien found in the United States, in violation
of 8 U.S.C. § 1326(a) and (b), and is currently incarcerated
and awaiting trial. We conclude that we lack jurisdiction, and
we dismiss the appeal.1
I.
On May 18, 2010, the government charged Beltran Valdez
with being a deported alien found in the United States in vio-
lation of 8 U.S.C. § 1326. At his initial appearance the magis-
trate judge appointed counsel. On July 15, 2010, Beltran
1
Beltran Valdez’s notice of appeal was untimely, not having been filed
within 14 days after the district court’s order. See Fed. R. App. P.
4(b)(1)(A)(i). In its answering brief, the government seeks dismissal on
this ground as well. Given that we lack jurisdiction over this appeal in any
event, we do not inquire whether the district court would extend the time
to file a notice of appeal upon a finding of excusable neglect or good
cause. See Fed. R. App. P. 4(b)(4).
20320 UNITED STATES v. BELTRAN VALDEZ
Valdez requested and was granted appointment of new coun-
sel. On February 28, 2011, on the eve of trial, the district
court held a hearing on motions in limine filed by the defense
and the government. At that hearing, Beltran Valdez
requested appointment of new counsel. The district court
denied his request, but conducted a Faretta2 hearing and per-
mitted him to represent himself, with his former attorney
remaining as advisory counsel. The trial date was res-
cheduled. Beltran Valdez, pro se, filed a notice of appeal
dated March 23, 2011, which was docketed March 28, 2011.
The government moved to dismiss the appeal for lack of
jurisdiction on the grounds that the order was not final, and
does not satisfy the requirements of the collateral order doc-
trine. We denied the motion without prejudice to renewing the
arguments in the government’s answering brief, and ordered
the parties to address whether the collateral order doctrine
applies to the district court’s order. We also required the par-
ties to address, in the alternative, whether sufficiently excep-
tional circumstances warrant construing the appeal as a
petition for writ of mandamus. We appointed counsel for pur-
poses of this appeal only.
II.
The parties agree that the February 28 order was interlocu-
tory. Ordinarily, our jurisdiction is limited to final decisions
of the district court. United States v. Romero-Ochoa, 554 F.3d
833, 835 (9th Cir. 2009). The collateral order doctrine, how-
ever, permits appellate review of those decisions which are
“ ‘too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.’ ” Id. at 835-36
2
Faretta v. California, 422 U.S. 806, 835-36 (1975) (holding that a
defendant in a state criminal trial has a constitutional right to proceed
without counsel when he or she voluntarily and intelligently elects to do
so).
UNITED STATES v. BELTRAN VALDEZ 20321
(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949)). In order to qualify for review under Cohen,
an order “must conclusively determine the disputed question,
resolve an important issue completely separate from the mer-
its of the action, and be effectively unreviewable on appeal
from a final judgment.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978). All three elements must be satisfied.
Romero-Ochoa, 554 F.3d at 836.
The Cohen test is strictly applied, particularly in criminal
cases, id., where “an interlocutory order is appealable only
where it affects a ‘right not to be tried.’ ” United States v.
Samueli, 582 F.3d 988, 992 (9th Cir. 2009) (quoting United
States v. Austin, 416 F.3d 1016, 1022 (9th Cir. 2005)); cf.
Flanagan v. United States, 465 U.S. 259, 264-65 (1984) (dis-
cussing the importance of the final judgment rule in criminal
cases which “has led the Court to permit departures from the
rule ‘only when observance of it would practically defeat the
right to any review at all’ ”) (quoting Cobbledick v. United
States, 309 U.S. 323, 324-25 (1940)).
[1] We have not addressed the issue of whether an order
denying appointment of replacement counsel is immediately
appealable. The parties, assuming that the first two Cohen ele-
ments are met, focus on the third element: whether the issue
would be effectively unreviewable on appeal from a final
judgment. Assuming without deciding that such an order sat-
isfies the first two elements of the Cohen test — by conclu-
sively determining a disputed question and resolving an issue
completely separate from the merits of the action — the order
fails to satisfy the third element. An order denying the
appointment of replacement counsel can be effectively
reviewed on appeal after trial. Post-conviction review of
asserted Sixth Amendment deprivations such as denial of a
right to represent oneself, denial of appointment of counsel,
or denial of counsel’s request to be replaced because of a con-
flict of interest, is fully effective. See Flanagan, 465 U.S. at
267-68; see also United States v. Hitchcock, 992 F.2d 236,
20322 UNITED STATES v. BELTRAN VALDEZ
238-39 (9th Cir. 1993) (holding that refusal to appoint counsel
without submission of documentation of financial need was
not eligible for collateral review). Beltran Valdez has offered
no persuasive reason why denial of replacement counsel
should receive a different analysis, and we can think of none.
[2] The Second, Third, Fourth and Eighth Circuits have
ruled that orders denying appointment of replacement counsel
are not immediately appealable. In United States v. Culbert-
son, 598 F.3d 40, 49 (2d Cir. 2010), a pro se defendant
appealed the denial of appointment of new counsel, having
been refused a fourth replacement attorney. Like Beltran
Valdez, Culbertson was dissatisfied with his attorneys’ failure
to conduct his defense according to his wishes. In concluding
that an order denying appointment of replacement counsel
does not fit within the collateral order doctrine, the Second
Circuit held that an “order denying the appointment of
replacement counsel can be effectively reviewed after trial,
and the claimed right to counsel here does not implicate ‘a
right not to be tried.’ ” Id.
In United States v. Johnson, 525 F.3d 648, 649 (8th Cir.
2008), an appeal of the denial of a motion to appoint substi-
tute counsel was dismissed for lack of jurisdiction: “As the
order denying substitution of appointed counsel is subject to
reconsideration by the district court as the prosecution pro-
ceeds, and is effectively reviewable on appeal after final judg-
ment, at least two of the three requirements for appealability
are not satisfied.” Id.; see also United States v. Nguyen, 379
F. App’x 177, 179 (3d Cir. 2010) (dismissing for lack of juris-
diction an interlocutory appeal from the denial of defendant’s
motion for appointment of new counsel), cert. denied, 131 S.
Ct. 1535 (2011); United States v. Terry, 234 F. App’x 82, 83-
84 (4th Cir. 2007) (per curiam) (same).
[3] We join those circuits and hold that the collateral order
doctrine bars the immediate appeal of an order denying a
UNITED STATES v. BELTRAN VALDEZ 20323
request to appoint replacement counsel. Accordingly, we lack
jurisdiction under the collateral order doctrine.
Because Beltran Valdez is pro se, we have considered
whether his appeal should be construed as a petition for man-
damus. Because it is clear that the order denying appointment
of replacement counsel can be reviewed effectively after trial,
we decline to treat the appeal as a petition for mandamus.
APPEAL DISMISSED.