                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 12 2015

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

UNITED STATES OF AMERICA,                        No. 13-10357

              Plaintiff - Appellee,              D.C. No. 3:12-cr-08088-PGR-2

  v.
                                                 MEMORANDUM*
SHAWN LORIN HENDERSON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                Paul G. Rosenblatt, Senior District Judge, Presiding

                            Submitted March 10, 2015**
                             San Francisco, California

Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.

       Shawn Henderson appeals his conviction for felon in possession of a firearm

and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Having

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Henderson argues that the government presented inconsistent theories at his

trial. A prosecutor violates a defendant’s due process rights by pursuing

fundamentally inconsistent theories against separate defendants for the same crime

if the prosecutor knowingly uses false evidence or acts in bad faith. Nguyen v.

Lindsey, 232 F.3d 1236, 1240 (9th Cir. 2000). The government did not act in bad

faith or use false evidence when it argued that Henderson possessed the same

handgun that his co-defendant admitted to possessing in the factual basis of his

plea agreement; and, these were not fundamentally inconsistent theories. See id.

(“[Although] the prosecutor made different arguments at each trial, . . . [there was

no due process violation because] these arguments were consistent with the

evidence actually adduced at each trial.”).

      Henderson also argues that the district court improperly rejected his motion

to dismiss counsel, which he raised for the first time after trial (and after the jury

acquitted him on one count and failed to reach a verdict on another). We consider

three factors when assessing whether a motion to dismiss counsel was properly

denied: (1) whether the district court’s inquiry was adequate, (2) the extent of the

conflict between the defendant and his counsel, and (3) the timeliness of the

defendant’s motion weighed against any inconvenience or delay that would result

from granting the motion. United States v. Corona-Garcia, 210 F.3d 973, 976 (9th


                                            2                                    13-10357
Cir. 2000). Based on these factors, the district court did not abuse its discretion in

rejecting Henderson’s motion. See id. at 976-77.

      AFFIRMED.




                                          3                                     13-10357
