United States v. Filiberto Gonzalez-Rodriguez , 395 F. App'x 443 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-10226
Plaintiff - Appellee, D.C. No. 2:07-CR-01269-GMS-1
v.
MEMORANDUM*
FILIBERTO GONZALEZ-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted July 12, 2010**
San Francisco, California
Before: HUG and M. SMITH, Circuit Judges, and HOGAN, Senior District
Judge.***
*
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).
***
The Honorable Thomas F. Hogan, Senior United States District Judge
for the District of Columbia, sitting by designation.
Filiberto Gonzalez-Rodriguez (“Appellant”) appeals a 57-month sentence
imposed following his guilty plea and conviction for unlawful reentry into the
United States as a deported alien in violation of 8 U.S.C. § 1326. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. As the facts and procedural
history are familiar to the parties, we recite them here only as necessary to explain
our decision.
First, Appellant argues that the district court abused its discretion in denying
his second motion to withdraw his guilty plea. Appellant claims that a “fair and
just reason” for withdrawal existed, see United States v. Reyna-Tapia, 328 F.3d
1114, 1117 (9th Cir. 2003) (en banc), primarily because he received ineffective
assistance of counsel and wanted to retain new counsel.1 If proven, this claim
1
Appellant also contends that: (1) he did not understand that, by entering a
plea, he was giving up his right to a trial, (2) he informed the district court that he
received documents from the State Court in Washington regarding his 1995 felony
drug convictions that “evidence ‘wrong doing’ by the trial court for proceeding
with the guilty plea,” (3) he “prejudiced” himself by withdrawing from the initial
plea agreement, and (4) the court’s minute entry did not state whether the plea was
accepted. These claims are unsubstantiated. The record indicates that the district
court considered Appellant’s complaints regarding his prior convictions, and
Appellant does not elaborate on the nature of the documents he refers to.
Appellant’s statements at his change-of-plea hearings indicate that he understood
the implications of his plea. Since his plea was accepted on the record, his
complaint regarding the minute entry is irrelevant. Finally, Appellant’s argument
that he “prejudiced” himself lacks merit. Dissatisfaction with the consequences of
his decision to withdraw from the initial agreement is no basis for relief.
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might constitute a “fair and just reason” for withdrawing a guilty plea. See United
States v. Davis, 428 F.3d 802, 807 (9th Cir. 2005). But Appellant failed to present
evidence substantiating his claims. See Fed. R. Crim. P. 11(d)(2)(B); Davis, 428
F.3d at 805 (“The defendant has the burden of demonstrating a fair and just reason
for withdrawal of a plea . . . .”). We therefore find that the district court properly
denied Appellant’s second motion to withdraw his guilty plea.
Next, Appellant argues that the district court abused its discretion by
denying his motion, made on the eve of trial, for substitute counsel. Because the
motion would have required that the trial be continued, the district court was well
within its discretion in denying the motion. See United States v. Schaff, 948 F.2d
501, 504 (9th Cir. 1991) (“[A] district court has broad discretion to deny a motion
for substitution made on the eve of trial if the substitution would require a
continuance.”). Even assuming the motion was timely, the district court’s inquiry
into Appellant’s complaint was more than adequate. See United States v. Prime,
431 F.3d 1147, 1155 (9th Cir. 2005). Appellant had two opportunities to air
concerns about his attorney, and he never described a breakdown in
communication that would render his counsel unable to present an adequate
defense, nor did he allege that counsel was unprepared for trial. Accordingly, the
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district court did not abuse its discretion when it denied Appellant’s motion to
substitute counsel and to continue the trial.
Finally, Appellant contends that the district court imposed an unreasonable
sentence and erred in rejecting his downward-departure motion based on cultural
assimilation. As the government pointed out, Appellant was approximately sixteen
years old when he came to the U.S., and he was educated in Mexico. He also had
at least one sibling in Mexico and he built a home there. The district court
appropriately reasoned that, although he has close relatives in the U.S., Appellant
is not “ill equipped” to “make an existence for himself in Mexico.” We find no
error in the district court’s conclusion that Appellant’s ties are insufficiently
extraordinary to warrant a departure. See United States v. Rivas-Gonzalez, 384
F.3d 1034, 1044 (9th Cir. 2004) (finding no grounds for downward departure
based on cultural assimilation where defendant first came to the United States at
age twenty-one and had economic rather than cultural motives).
Appellant also suggests that his sentence is unreasonable because his prior
convictions were for “small personal use amounts” of drugs and were so old as to
be stale. This argument is baseless. Appellant’s prior convictions were within the
applicable time period for the Sentencing Guideline’s criminal history provisions,
and his prison sentence is at the very bottom of the U.S. Sentencing Guidelines
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range. Moreover, his convictions were not limited to drug offenses, and his drug
transactions were not limited to only a small quantity. Accordingly, we conclude
that the district court did not err, and that the sentence imposed is substantively
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
AFFIRMED.
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