                                                                              FILED
                           NOT FOR PUBLICATION                                  JUN 18 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50148

              Plaintiff - Appellee,              D.C. No. 3:11-cr-03248-BTM-1

  v.                                             AMENDED
                                                 MEMORANDUM*
ARMANDO CABRERA-PEREZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                       Argued and Submitted March 6, 2014
                              Pasadena, California

Before: BYBEE, BEA, and IKUTA, Circuit Judges.

       Defendant-Appellant Armando Cabrera-Perez was convicted by a jury of

one count of illegal reentry in violation of 8 U.S.C. § 1326 and one count of

aggravated identity theft in violation of 18 U.S.C. § 1028A. On appeal, Cabrera-

Perez argues that the district court abused its discretion when it denied his request



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for a new attorney. Cabrera-Perez also argues that the district court erred at

sentencing by refusing to grant him a two level reduction for acceptance of

responsibility. “We review the denial of a motion for substitution of counsel for

abuse of discretion,” United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001),

and the denial of a defendant’s request for a downward adjustment for acceptance

of responsibility under the clearly erroneous standard, United States v. Cooper, 912

F.2d 344, 345 (9th Cir. 1990), and affirm.1

      1. In evaluating a district court’s denial of a request for a new attorney, this

Court considers three factors: “(1) the adequacy of the court’s inquiry into the

defendant’s complaint, (2) the extent of the conflict between the defendant and

counsel, and (3) the timeliness of the motion and the extent of resulting

inconvenience or delay.” United States v. Cassel, 408 F.3d 622, 637 (9th Cir.

2005). First, considering “the adequacy of the court’s inquiry into the defendant’s

complaint,” after Cabrera-Perez’s trial counsel notified the district court that

Cabrera-Perez had requested new counsel on the first day of trial, the district court

excused the government and made a detailed inquiry into Cabrera-Perez’s request.

The district court allowed Cabrera-Perez to state his reasons why he wanted a new



      1
        We address one of the issues raised in this appeal in a concurrently filed
published opinion.

                                           2
attorney. The district court considered each of these reasons, and, in the end,

denied Cabrera-Perez’s request. In so doing, the district court made the following

finding of fact: “the reason [Cabrera-Perez] want[ed] another lawyer [was] because

[Cabrera-Perez was] unhappy with the deal that the government ha[d] offered.”

Because the district court gave Cabrera-Perez “several opportunities to present his

concerns and . . . gave every indication that it was willing to take [Cabrera-Perez]

seriously,” the district court conducted an “adequate inquiry.” Cassel, 408 F.3d at

637.

       Second, considering “the extent of the conflict between the defendant and

counsel,” Cabrera-Perez’s statements to the district court indicate that Cabrera-

Perez and his trial counsel had an extremely strained attorney-client relationship.

However, the record does not support Cabrera-Perez’s claim that there was a

“complete communications breakdown” as in Nguyen, 262 F.3d at 1005.

Therefore, while Cabrera-Perez’s “frustration and lack of trust in his attorney . . .

weighs in favor of his request” for a new attorney, “nothing [Cabrera-Perez] said

[to the district court] indicated . . . that the attorney-client relationship had broken

down” to such a degree that the district court was required to grant the motion for

new counsel. Cassel, 408 F.3d at 638.




                                            3
      Third, considering “the timeliness of the motion and the extent of resulting

inconvenience or delay,” Cabrera-Perez waited until the first day of trial to make

his request for a new attorney. “If granted [on the first day of trial], it would

certainly have resulted in some delay, possibly substantial, as a new attorney

became familiar enough with the case to represent [Cabrera-Perez] at [trial].” Id.

      Therefore, as in Cassel, “[t]wo of the three relevant factors—the adequacy

of the [district court’s] inquiry and the timeliness of the defendant’s

request—weigh heavily in favor of the [district court’s] decision not to grant

[Cabrera-Perez’s] request for new counsel.” Id. While the third factor—the degree

of conflict between client and attorney—provides some support for Cabrera-

Perez’s claim, the conflict here did not rise to the level of the conflict in Nguyen.

We therefore hold that the district court did not abuse its discretion in denying

Cabrera-Perez’s motion for new counsel.

      Assuming that Cabrera-Perez’s counsel moved for a continuance, the district

court did not abuse its discretion by denying the motion because Cabrera-Perez has

not demonstrated that he “‘has suffered prejudice as a result of the denial of his

request.’” United States v. Zamora-Hernandez, 222 F.3d 1046, 1049–50 (9th Cir.

2000) (quoting United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.1985)).




                                           4
      2. The district court denied Cabrera-Perez’s request for a downward

adjustment for acceptance of responsibility, concluding that Cabrera-Perez’s

“conduct during the trial” and his “obstruction of justice in this particular case”

were “inconsistent with [his] accepting responsibility.” Given the high degree of

deference afforded to the district court in such determinations, Cabrera-Perez

simply cannot show that the district court’s decision was “clearly erroneous.”

Cooper, 912 F.2d at 345. In reaching its conclusion, the district court properly

relied on its determination that Cabrera-Perez “intentionally and willfully

obstructed and impeded the proceedings in this case by multiple outbursts in

violation of court orders that were designed to derail and delay and impede the

trial.” Moreover, as we noted in United States v. Magana-Guerrero, application

note 4 to § 3E1.1 of the Sentencing Guidelines “explains that conduct resulting in

an enhancement for obstruction of justice ordinarily indicates that the defendant

has not accepted responsibility.” 80 F.3d 398, 401 (9th Cir. 1996). We therefore

hold that the district court did not clearly err in denying Cabrera-Perez’s request

for a sentencing reduction due to acceptance of responsibility.

      AFFIRMED.




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