United States v. Thomas Vasconcellos ( 2019 )


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  •                            NOT FOR PUBLICATION
    FILED
    JUN 19 2019
    UNITED STATES COURT OF APPEALS
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    17-10512
    Plaintiff-Appellee,             D.C. No. 1:16-cr-00513-HG-1
    v.
    MEMORANDUM*
    THOMAS M. VASCONCELLOS,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Hawaii
    Helen W. Gillmor, District Judge, Presiding
    Submitted June 14, 2019**
    Honolulu, Hawaii
    Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
    Judges.
    Defendant-Appellant Thomas Vasconcellos forged and obtained
    *
    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).
    unauthorized prescriptions of oxycodone at various pharmacies.1 Vasconcellos
    appeals his conviction, following a guilty plea, for conspiracy to distribute and
    possess with intent to distribute oxycodone under 
    21 U.S.C. §§ 841
     and 846. We
    have jurisdiction under 
    28 U.S.C. § 1291
    . We affirm.
    1.     Vasconcellos argues that his guilty plea was involuntary because it
    was a byproduct of judicial coercion.2 He asserts that the court’s order remanding
    him into custody gave him no choice but to plead guilty. Because Vasconcellos
    did not object to his entry of guilty plea, we review for plain error. See United
    States v. Carter, 
    795 F.3d 947
    , 950 (9th Cir. 2015).
    On August 25, 2017, the district court held a change of plea hearing. In
    open court, the district court addressed Vasconcellos personally and engaged in the
    required colloquy to ascertain whether Vasconcellos understood his right to plea,
    his right to a jury trial, and his waiver of these rights by entering a plea of guilty.
    1
    The facts herein are obtained only from public documents in the
    record. No sealed document is referenced herein.
    2
    The government requests that we dismiss the appeal because
    Vasconcellos entered into an unconditional guilty plea. An unconditional guilty
    plea waives all nonjurisdictional, antecedent defects and some constitutional
    claims. Class v. United States, 
    138 S. Ct. 798
    , 805 (2018); United States v.
    Jackson, 
    697 F.3d 1141
    , 1144 (9th Cir. 2012) (per curiam). Because Vasconcellos
    challenges “whether the underlying plea was both counseled and voluntary,”
    United States v. Broce, 
    488 U.S. 563
    , 569 (1989), the appeal is not dismissed.
    2
    See Fed. R. Crim. P. 11(b)(1)(A)–(O). Nothing in the record suggests that the
    district court coerced Vasconcellos into entering a guilty plea “by mental coercion
    overbearing the will of the defendant.” Brady v. United States, 
    397 U.S. 742
    , 750
    (1970); cf. United States v. Bruce, 
    976 F.2d 552
    , 558 (9th Cir. 1992) (judge
    violated Rule 11 by encouraging defendants to take the plea bargain rather than go
    to trial), abrogated on other grounds by United States v. Davila, 
    569 U.S. 597
    (2013). Vasconcellos did not show that his guilty plea was not “the product of a
    free and deliberate choice rather than coercion or improper inducement.” Comer v.
    Stewart, 
    215 F.3d 910
    , 917 (9th Cir. 2000) (quoting United States v. Doe, 
    155 F.3d 1070
    , 1074 (9th Cir. 1998)).
    2.    Vasconcellos also argues that the district court deprived him of a
    Sixth Amendment right to counsel of his choice by denying (actually or
    constructively) his request for retained counsel. Vasconcellos argues that he had
    obtained an employment contract that would have enabled him to earn money to be
    able to retain counsel but the court’s remand order prevented him from working
    and thus paying for retained counsel. We reject Vasconcellos’s arguments. First,
    Vasconcellos never actually moved to retain private counsel, and thus there was no
    denial by the court. Second, although the Sixth Amendment guarantees a criminal
    defendant the right to adequate representation, “a defendant may not insist on
    representation by an attorney he cannot afford[.]” See Wheat v. United States, 486
    
    3 U.S. 153
    , 159 (1988). Third, under the three factors of Miller v. Blacketter, 
    525 F.3d 890
    , 896 (9th Cir. 2008), Vasconcellos cannot show that the court’s findings
    at the May 30, 2017 hearing were “an unreasonable exercise of its discretion to
    balance [defendant’s] right to his chosen counsel against concerns of fairness and
    scheduling.” The district court did not violate Vasconcellos’s Sixth Amendment
    right to counsel.
    AFFIRMED.
    4