United States of America v. MARCELO OMAR SANCHEZ- ESPINOSA, AKA Omar

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCELO OMAR SANCHEZ-
ESPINOSA, AKA Omar,
Defendant-Appellant.
No. 18-30247
D.C. No.
1:15-cr-00130-EJL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted December 9, 2019
Seattle, Washington
Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.
Marcelo Sanchez-Espinosa appeals the sentence imposed following his
guilty plea to conspiracy to possess with intent to distribute methamphetamine in
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
FILED
DEC 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violation of 21 U.S.C § 841(a)(1) and (b)(1)(A). We vacate the sentence and
remand for resentencing.
The district court’s denial of Mendoza’s initial motion to withdraw relied on
an incorrect legal standard and violated Sanchez-Espinosa’s Sixth Amendment
right to counsel of choice.1 Because Sanchez-Espinosa hired Mendoza, Sanchez-
Espinosa had a qualified constitutional right to discharge him “for any reason or no
reason.” United States v. Rivera-Corona, 618 F.3d 976, 980 (9th Cir. 2010);
accord United States v. Brown, 785 F.3d 1337, 1340 (9th Cir. 2015). It was
apparent that Sanchez-Espinosa “instigated the withdrawal motion,” Brown, 785
F.3d at 1347, as Mendoza made the initial motion to withdraw “at my client’s
behest.” The district court understood the motion to be Sanchez-Espinosa’s request
to substitute counsel.
When it ruled on the motion to withdraw, the district court did not recognize
that Mendoza was retained. The court’s written order misidentified Sanchez-
Espinosa as “an indigent defendant request[ing] new court-appointed counsel in
place of an existing appointed attorney.” The court then incorrectly applied
“extent-of-conflict” review, the standard used when a defendant seeks to substitute
appointed counsel for appointed counsel. Rivera-Corona, 618 F.3d at 979; see
1. We review for abuse of discretion because Sanchez-Espinosa does not
raise the issue of substitution of counsel for the first time on appeal.

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Brown, 785 F.3d at 1343. As a result of these errors, the district court violated
Sanchez-Espinosa’s Sixth Amendment right to counsel of choice. See Rivera-
Corona, 618 F.3d at 979; Brown, 785 F.3d at 1344.
We vacate and remand for resentencing only. Our disposition does not
disturb Sanchez-Espinosa’s conviction, as the district court received and ruled on
his request to substitute counsel more than one month after his guilty plea was
accepted as final.
VACATED and REMANDED.

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