                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 24 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10491

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00368-LKK-1

 v.
                                                 MEMORANDUM*
RICHARD JAMES PULLEY, Jr.,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                    Argued and Submitted November 16, 2015
                            San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Richard Pulley, Jr. appeals his conviction for unlawful possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g) and his fifteen-year sentence.

We hold that the district court denied Pulley his Sixth Amendment right to

represent himself. We therefore reverse his conviction and remand for a new trial.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
As a result, we do not reach his Eighth Amendment sentencing claim. We also

reject Pulley’s arguments that the Speedy Trial Act and Commerce Clause require

dismissal of the indictment.

1.    Pulley’s Sixth Amendment right was violated, and his conviction must be

reversed under United States v. Farias, 618 F.3d 1049 (9th Cir. 2010). “A criminal

defendant does not simply have the right to represent himself, but rather has the

right to represent himself meaningfully. Meaningful representation requires time

to prepare.” Id. at 1053. Here, Pulley requested to proceed pro se three days

before trial. The district court relieved Pulley’s appointed counsel and conducted a

colloquy pursuant to Faretta v. California, 422 U.S. 806 (1975). After the district

court repeatedly informed Pulley that his trial would not be continued, however,

Pulley consented to reappointment of counsel because he would “have no time to

prepare” on his own. As in Farias, “by making it clear that [Pulley] would have no

time to prepare if he chose to proceed pro se, the district court denied him his right

to meaningfully represent himself.” 618 F.3d at 1054.

      The government’s arguments to the contrary are not persuasive. Pulley

unequivocally asserted his right to represent himself before the district court

empaneled a jury, and the district court made no finding that Pulley’s request was

made in bad faith to secure delay. See id. at 1052. Alone, the proximity of

                                           2
Pulley’s request to trial is insufficient to render his election untimely. Id. at

1052–53. Even where a defendant’s pretrial conduct has “already caused

substantial delay,” a defendant’s Faretta waiver may not be denied absent inquiry

into the defendant’s intent. Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982).

        Pulley’s conflict with his trial counsel came to a head only four days before

he requested self-representation. On this record, and absent any findings by the

district court, we cannot conclude that Pulley’s request was made for the purpose

of delay. See Farias, 618 F.3d at 1053 (observing that although the defendant

could have requested self-representation earlier, counsel’s recent failure to file

certain motions and poor communications with the defendant were consistent with

good faith invocation of Faretta right). The district court’s erroneous denial of

Pulley’s request was structural error and requires reversal. Id. at 1055.

2.      The Speedy Trial Act, 18 U.S.C. §§ 3161–3174, does not require dismissal

of Pulley’s indictment. Pulley does not challenge the factual bases for the repeated

ends-of-justice continuances granted pursuant to § 3161(h)(7), and that subsection

does not require the district court to recite the specific language Pulley advocates.

See United States v. Medina, 524 F.3d 974, 986 (9th Cir. 2008) (“[D]iscussion of

the statutory factors is adequate to support a continuance that serves the ends of

justice . . . .”).

                                            3
3.    Pulley’s Commerce Clause challenge is foreclosed by United States v.

Davis, 242 F.3d 1162, 1162–63 (9th Cir. 2001) (per curiam), which rejected a

facial Commerce Clause challenge to § 922(g)(1); see also United States v. Hanna,

55 F.3d 1456, 1462 (9th Cir. 1995) (rejecting as-applied challenge to § 922(g)(1)

where firearm traveled interstate). The two guns identified in the indictment had

traveled between states. That suffices “to establish a past connection between the

gun[s] and interstate commerce. Therefore, § 922(g)(1) is not unconstitutional as

applied to” Pulley. Hanna, 55 F.3d at 1462 (citation omitted).

      REVERSED AND REMANDED.




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