                    UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                          JUL 10 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.    18-50079

                Plaintiff-Appellee,              D.C. No.
                                                 3:16-cr-01448-WQH-1
 v.                                              Southern District of California,
                                                 San Diego
WILLIE JONES, Jr.,
                                                 ORDER AMENDING
                Defendant-Appellant.             MEMORANDUM AND
                                                 DENYING PETITION FOR
                                                 PANEL REHEARING AND
                                                 REHEARING EN BANC

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,* District
Judge.

      The memorandum disposition filed on May 30, 2019, is hereby amended as

follows:

      Page 3, lines 14-15 – change <Similarly, the district judge did not abuse his

discretion in denying Jones’s motion to represent himself> to <Although “we have

not yet clarified whether denial of a Faretta request is reviewed de novo or for abuse

of discretion,” United States v. Kaczynski, 239 F.3d 1108, 1116 (9th Cir. 2001), the

district judge did not err under either standard in denying Jones’s motion to represent

himself>.


      *
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      With this amendment, the panel has voted to deny the petition for panel

rehearing. Judges Wardlaw and Hurwitz have also voted to deny the petition for

rehearing en banc, and Judge Korman so recommends.

      The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P.

35.

      The petition for panel rehearing and rehearing en banc, Dkt. 50, is DENIED.

      No additional petitions for rehearing will be entertained.




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                               NOT FOR PUBLICATION                                  FILED
                       UNITED STATES COURT OF APPEALS                                JUL 10 2019
                                                                                MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                              No.     18-50079

                  Plaintiff-Appellee                   D.C. No.
                                                       CR-16-01448-WQH-1
  v.

WILLIE JONES, JR.,                                     AMENDED MEMORANDUM*

                  Defendant-Appellant


                      Appeal from the United States District Court
                        for the Southern District of California
                      William Q. Hayes, District Judge, Presiding

                           Argued and submitted May 15, 2019
                                  Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.

       Willie Jones picked up three undocumented aliens near the United States-

Mexico border and dropped them off on the side of the road approximately a

quarter mile before reaching a border checkpoint on Highway 94. A passing

motorcyclist observed the three men exiting Jones’s silver vehicle, reported his


       *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
       **
               The Honorable Edward R. Korman, United States District Judge for the Eastern
District of New York, sitting by designation.

                                                1
observations to border patrol agents, and then identified Jones’s vehicle as it

approached the checkpoint. Jones was sent to secondary inspection and held there

for approximately one hour. During this time, border patrol agents found the three

men hiding in the bushes, at which point they arrested Jones for alien smuggling.

      Jones argued unsuccessfully in the district court that his detention and arrest

were illegal and should be suppressed. Throughout the proceedings against him,

Jones was appointed five different attorneys at his request. The district judge

refused to substitute out his fifth attorney and denied his motion to proceed pro se

at trial and at sentencing. Following Jones’s conviction for transporting illegal

aliens, the district judge declined to apply a minor role adjustment under the

Sentencing Guidelines and imposed concurrent sentences of 21 months of

incarceration and three years of supervised release. This appeal followed.

      1. The district judge did not err in finding that the border patrol agents

possessed reasonable suspicion sufficient to detain Jones at the border. See United

States v. Wilson, 7 F.3d 828, 834 (9th Cir. 1993). Based on the totality of the

circumstances—including the motorcyclist’s in-person, eyewitness,

contemporaneous tip; the border patrol agent’s knowledge of alien smuggling in

the area; Jones’s statement that he was coming from a border city; and Jones’s

driver’s license showing a non-local address—the district judge did not err in

finding that there was reasonable suspicion to detain Jones. See Navarette v.


                                          2
California, 572 U.S. 393, 401-04 (2014); United States v. Palos-Marquez, 591

F.3d 1272, 1274-77 (9th Cir. 2010); United States v. Valdes-Vega, 738 F.3d 1074,

1077, 1079-80 (9th Cir. 2013) (en banc).

      2. The district judge did not abuse his discretion by denying Jones a sixth

court-appointed attorney. Contrary to Jones’s assertion, the district judge did not

categorically preclude Jones from substituting his fifth attorney because he had

previously substituted four. Instead, the judge made a type of “general

unreasonableness” finding, see United States v. Mendez-Sanchez, 563 F.3d 935,

944 (9th Cir. 2009), based on the fact that Jones’s “pattern [was] the same” with

each of his four previous attorneys. To the extent that there was a “breakdown in

communication” between Jones and his fifth attorney, it was Jones who refused to

communicate, and he may not take advantage of this refusal to obtain a new

attorney. See United States v. Roston, 986 F.2d 1287, 1292-93 (9th Cir. 1993).

      3. Although “we have not yet clarified whether denial of a Faretta request is

reviewed de novo or for abuse of discretion,” United States v. Kaczynski, 239 F.3d

1108, 1116 (9th Cir. 2001), the district judge did not err under either standard in

denying Jones’s motion to represent himself, made on the morning of trial, after

finding that his purpose was to delay proceedings. Cf. United States v. Farias, 618

F.3d 1049, 1052-53 (9th Cir. 2010). This was based on his pre-trial conduct—such

as continually substituting attorneys and refusing to leave his holding cell on a


                                           3
previous trial date—and the fact that he was asking for a continuance to prepare to

proceed pro se at trial. See Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982).

Similarly, the district judge properly denied Jones’s post-trial Faretta motion after

a conference during which Jones was belligerent, disruptive, combative, and

unresponsive to the questions the district judge asked in an attempt to make the

appropriate Faretta inquiry. See United States v. Lopez-Osuna, 242 F.3d 1191,

1199 (9th Cir. 2001) (“[The defendant] must be able and willing to abide by rules

of procedure and courtroom protocol.” (internal quotation marks and citation

omitted)).

      4. Lastly, the district judge did not abuse his discretion in denying Jones a

minor role adjustment. The district judge considered the five non-exhaustive

factors used to determine whether a defendant is entitled to a minor role reduction,

see U.S. Sentencing Guidelines Manual § 3B1.2, cmt. n.3(C), and properly found

that Jones did not carry his burden of demonstrating that these factors weighed in

his favor. See United States v. Cordova Barajas, 360 F.3d 1037, 1042 (9th Cir.

2004).

AFFIRMED.




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