United States of America v. Umberto Hernandez-Vasquez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
UMBERTO HERNANDEZ-VASQUEZ,
Defendant-Appellant.
No. 17-50145
D.C. No.
3:15-cr-02517-WQH-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
UMBERTO HERNANDEZ-VASQUEZ,
AKA Hilberto Vasquez,
Defendant-Appellant.
No. 17-50177
D.C. No.
3:11-cr-00224-WQH-1
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted February 4, 2019
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: WARDLAW and BEA, Circuit Judges, and DRAIN,** District Judge.
In this consolidated appeal, Umberto Hernandez-Vasquez challenges his
conviction and sentence for illegal reentry into the United States in violation of 8
U.S.C. § 1326 and, based on this illegal reentry, the district court’s revocation of
supervised release from a prior conviction. We have jurisdiction pursuant to 28
U.S.C. § 1291. We affirm.
1. The district court did not clearly err in finding that Hernandez made an
unequivocal request to represent himself under Faretta v. California, 422 U.S. 806
(1975). Hernandez affirmed on multiple occasions that he wished to represent
himself if the court would not appoint him new counsel, which established a
conditional waiver. See United States v. Mendez-Sanchez, 563 F.3d 935, 946 (9th
Cir. 2009) (“A conditional waiver can be stated unequivocally, as for example
when a defendant says in substance: ‘If I do not get new counsel, I want to
represent myself.’”).
2. The district court properly determined that Hernandez knowingly and
intelligently waived his right to counsel. Contrary to Hernandez’s assertion that
the district court’s Faretta colloquy was inadequate, “‘a fair reading of the record
as a whole’ indicates that [Hernandez] ‘understood the dangers and disadvantages
** The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.

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of self-representation.’” United States v. Turner, 897 F.3d 1084, 1103 (9th Cir.
2018). The district court’s “dangers and disadvantages” admonitions tracked the
model language suggested in our precedent; the court “specifically ascertained
whether [Hernandez] understood that he would be expected to abide by the same
complex rules as an experienced attorney,” reviewed “in broad terms” the rules
concerning trial procedure, and “repeatedly emphasized the importance of
counsel.” United States v. Erskine, 355 F.3d 1161, 1168 (9th Cir. 2004).
That Hernandez lacked understanding of the substantive rules governing his
trial does not defeat the adequacy of the district court’s Faretta colloquy. See
Lopez v. Thompson, 202 F.3d 1110, 1119 (9th Cir. 2000) (en banc). Nor does any
part of the Faretta colloquy or the record as a whole suggest that, despite
consistent affirmative answers to the court’s questions, Hernandez did not actually
understand the court’s questions and warnings. Record evidence reflects the
court’s awareness and commensurate accommodation of Hernandez’s intellectual
limitations. For example, the court conducted its Faretta colloquy only after
ordering a competency evaluation to ensure that Hernandez would fully understand
the rights he would be waiving.
3. The district court did not clearly err in finding Hernandez mentally
competent to represent himself under Indiana v. Edwards, 554 U.S. 164 (2008).
See United States v. Johnson, 610 F.3d 1138, 1145 (9th Cir. 2010). Record

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evidence indicates that Hernandez was “able ‘to carry out the basic tasks needed to
present his own defense without the help of counsel.’” United States v. Ferguson,
560 F.3d 1060, 1068 (9th Cir. 2009); see also id. at 1068–69 (noting the fact that
the defendant “did absolutely nothing” at trial as an indication that Edwards might
apply). As the district court correctly noted, the psychologists who evaluated
Hernandez found no objective evidence that he suffered from a severe mental
disorder “rendering him unable to understand the nature and consequences of the
court proceedings against him or unable to assist properly in his defense.” Thus,
the evaluators’ findings distinguish Hernandez from the severely mentally ill
defendant in Edwards, who suffered from schizophrenia, was more than once
found incompetent to stand trial, and filed “at least one undecipherable document.”
United States v. Brugnara, 856 F.3d 1198, 1214 (9th Cir. 2017).
AFFIRMED.

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