                                                                                FILED
                           NOT FOR PUBLICATION                                  OCT 17 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30266

              Plaintiff - Appellee,              D.C. No. 6:13-cr-00007-SEH-1

  v.
                                                 MEMORANDUM*
ERVIN SALGADO OSORIO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted October 9, 2014
                                Portland, Oregon

Before: FISHER, CHRISTEN, and NGUYEN, Circuit Judges.

       Ervin Osorio appeals his conviction for conspiracy to distribute and

distribution of 50 grams or more of methamphetamine in violation of 21 U.S.C. §§

846 and 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we reverse.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court abused its discretion by denying Osorio’s motion for a 45-

day continuance so that he could retain and proceed to trial with his counsel of

choice. See United States v. Nguyen, 262 F.3d 998, 1003 (9th Cir. 2001) (“[A]n

‘unreasoning and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay violates the right to the assistance of counsel.’”

(quoting Morris v. Slappy, 461 U.S. 1, 11–12 (1983)) (internal quotation marks

omitted)). Although the motion was filed after the motions deadline, it was not

untimely under the circumstances of this case. It was filed almost immediately

after Osorio learned that his co-defendants had changed their pleas and would be

testifying against him. Additionally, Osorio had made his initial appearance less

than two months prior to the date of the motion, and he had not previously

requested any continuances.

      Osorio’s appointed attorney informed the district court that Osorio’s family

had the funds to retain attorney Roger Peven. Osorio’s attorney also told the court

he had spoken with Mr. Peven, and Mr. Peven had indicated he was willing to take

the case but would need a continuance of the trial date.

      The government did not argue that the requested continuance would

inconvenience its attorneys or witnesses. And the district court did not find that

there would be any inconvenience to prospective jurors, nor did it explain how the


                                           2
continuance would inconvenience the court. “We have previously criticized a trial

judge who seemed ‘above all to be determined not to disturb [the court’s] trial

schedule.’” Nguyen, 262 F.3d at 1003 (alteration in original) (quoting United

States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998)). Although we are sensitive

to the need of district judges to manage their workloads, under the circumstances

of this case we conclude that the district court’s insistence upon expeditiousness

wrongfully infringed Osorio’s Sixth Amendment right to counsel of choice. We

therefore reverse Osorio’s conviction and remand for a new trial. See United

States v. Gonzalez-Lopez, 548 U.S. 140, 150–51 (2006) (explaining erroneous

deprivation of right to counsel of choice is structural error).1

      REVERSED AND REMANDED.




      1
             Because we conclude reversal is warranted based on the district
court’s denial of Osorio’s motion to continue, we do not reach Osorio’s arguments
concerning Agent Poteet’s testimony or the reasonableness of his sentence.

                                           3
