                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            APR 21 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                         No.   16-10145

              Plaintiff-Appellee,                 D.C. No.
                                                  2:10-cr-00458-JAM-3
 v.

KEVIN HAWKINS, AKA Ket T.                         MEMORANDUM*
Hawkins,

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                 Argued March 15, 2017 Submitted April 21, 2017
                           San Francisco, California

Before: WARDLAW, GOULD, and CALLAHAN, Circuit Judges.

      Defendant Kevin Hawkins appeals his conviction for witness tampering in

violation of 18 U.S.C. § 1512(b)(2)(B). Hawkins contends that the district court

violated his Sixth Amendment right to represent himself and was without

jurisdiction to impose his sentence. We agree that the district court clearly erred in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
finding Hawkins’s request to represent himself equivocal, vacate his conviction

and sentence, and remand. We do not reach the merits of Hawkins’s challenge to

his sentence.

      The Sixth Amendment guarantees a criminal defendant the right to counsel,

as well as the corollary right to waive counsel and represent himself in his criminal

proceedings. See Faretta v. California, 422 U.S. 806, 821 (1975). “If a

defendant’s request to proceed pro se is timely, not for purposes of delay,

unequivocal, voluntary, intelligent and the defendant is competent, it must be

granted.” United States v. Maness, 566 F.3d 894, 896 (9th Cir. 2009). For a

request to be unequivocal, the “defendant must make an explicit choice between

exercising the right to counsel and the right to self-representation so that a court

may be reasonably certain that the defendant wishes to represent himself.” United

States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994). “A district court’s finding that a

defendant’s waiver is equivocal is a finding of fact reviewed for clear error.”

United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009).1




      1
         We have not yet clarified whether denial of a request to proceed pro se is
reviewed de novo or for abuse of discretion. See United States v. Kaczynski, 239
F.3d 1108, 1116 (9th Cir. 2001). Under either standard, however, the district court
erred in denying Hawkins’s request.
                                           2
      The record does not support the district court’s finding that Hawkins was

equivocal in his request to proceed pro se. The nature of Hawkins’s request was

clear to the parties and to the judge, such that the district court set a hearing solely

to address Hawkins’s request. At the Faretta hearing, Hawkins repeatedly and

unambiguously asserted that he wished to represent himself, without qualifications

or reservations. The district court warned Hawkins of the difficulties in proceeding

pro se, but Hawkins persisted. His request was not the result of “mere whim or

caprice.” United States v. Robinson, 913 F.2d 712, 714 (9th Cir. 1990). And he

clearly made his continued request with “eyes open.” Faretta, 422 U.S. at 835.

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

Hawkins sought to represent himself two weeks after informing the court that he

wanted to be represented by counsel does not diminish the unequivocal nature of

his request at his Faretta hearing. Finding otherwise would suggest that any

request to proceed pro se is equivocal unless the defendant asserts the right to self-

representation from the outset of his criminal proceedings. No authority supports

this contention, and we decline to adopt it here. Faretta self-representation

requests have been made by defendants who were previously represented by

counsel without initial objection by the defendant. See, e.g., United States v.

Farias, 618 F.3d 1049, 1051–52 (9th Cir. 2010).


                                            3
      The district court made no finding that Hawkins’s request was untimely or

that the request was made in bad faith to secure delay or abuse the judicial process.

Nor do the parties dispute that Hawkins was “made aware of (1) the nature of the

charges against him; (2) the possible penalties; and (3) the dangers and

disadvantages of self-representation.” United States v. Farhad, 190 F.3d 1097,

1099 (9th Cir. 1999).

      The district court clearly erred in denying Hawkins’s request to proceed pro

se on the ground that Hawkins was equivocal. The request was unequivocal,

timely, and informed. Because the denial of this request is structural error, and not

subject to harmless error review, we vacate Hawkins’s conviction and remand for a

new trial. See Farias, 618 F.3d at 1055.2

      VACATED AND REMANDED.




      2
          We previously withdrew submission and ordered Hawkins to advise us
within ten days if he wanted to withdraw his appeal or proceed for the panel to
decide it. Hawkins filed a pro se response, see Dkt. No. 39, which we can only
interpret as requesting us to decide his appeal on the denial of his Faretta request.
We are therefore, simultaneous with the filing of this memorandum disposition,
filing an order resubmitting the appeal for decision. Hawkins has shown that his
right to represent himself was violated and therefore his conviction and sentence
are vacated and the case is remanded for a new trial. Hawkins’s response makes
numerous other requests of this court, which are not properly before us and instead
should be addressed to the district court on remand.
                                            4
