                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 8 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50475

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-00022-LAB-1
 v.

GUSTAVO VILLASENOR-BOTELLO,                     MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-50476

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-07062-LAB-1
 v.

GUSTAVO VILLASENOR-BOTELLO,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                       Argued and Submitted April 10, 2018
                              Pasadena, California

Before: BOGGS,** BYBEE, and WATFORD, Circuit Judges.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Gustavo Villaseñor-Botello appeals his conviction and sentence for attempted

illegal reentry, in violation of 8 U.S.C. § 1326. We affirm.

      1. Motion to Dismiss. First, Villaseñor-Botello argues that the district court

erred in denying his motion to dismiss the illegal-reentry charge.

      The immigration judge (“IJ”) who presided over Villaseñor-Botello’s 2006

removal hearing concluded that he was statutorily ineligible for voluntary departure

because he had been convicted of an aggravated felony, specifically a 48-month

sentence for first-degree robbery in Washington. See 8 U.S.C. § 1101(a)(43)(G);

Wash. Rev. Code § 9A.56.200; 8 C.F.R. § 1240.26(b)(1)(i)(E). Villaseñor-Botello

claims that this was error because this conviction was not an aggravated felony. See

United States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017). But even if

the IJ erred in finding Villaseñor-Botello statutorily ineligible for voluntary

departure, the district court properly denied the motion to dismiss because it is not

plausible that the IJ would have exercised her discretion to grant Villaseñor-Botello

voluntary departure. See United States v. Gonzalez-Flores, 804 F.3d 920, 927–28

(9th Cir. 2015). Indeed, the IJ stated that she would not have granted Villaseñor-

Botello voluntary departure had he been eligible for it. She had ample grounds for

coming to this conclusion, since Villaseñor-Botello had few positive equities to his


      **
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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credit and more than a few negatives ones, including recent convictions for several

armed robberies. See United States v. Valdez-Novoa, 780 F.3d 906, 917–21 (9th Cir.

2015).

      2. Requests for New Counsel. Second, Villaseñor-Botello contends that the

district court abused its discretion in denying his requests to replace his federal

public defenders with new appointed counsel. We disagree.

      We consider three factors when reviewing a district court’s denial of a motion

for substitution of counsel: “1) the timeliness of the motion; 2) the adequacy of the

district court’s inquiry into the defendant’s complaint; and 3) whether the asserted

conflict was so great as to result in a complete breakdown in communication and

consequent inability to present a defense.” United States v. Prime, 431 F.3d 1147,

1154 (9th Cir. 2005). Although the first factor favors Villaseñor-Botello, the latter

two do not.

      The district court adequately inquired into the reasons that Villaseñor-Botello

desired new counsel. The court’s questioning, which took place over the course of

several pre-trial hearings, revealed that Villaseñor-Botello wanted new counsel

primarily because he had had a bad experience with a public defender in the past.

The court was within its discretion in finding Villaseñor-Botello’s generalized lack

of trust in his attorneys to be an inadequate reason to appoint new counsel, since

Villaseñor-Botello’s past experience with public defenders was not a legitimate


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reason for lacking confidence in his current counsel. See United States v. Roston,

986 F.2d 1287, 1292–93 (9th Cir. 1993). In sum, while the district court could have

granted Villaseñor-Botello’s timely requests for new counsel, it did not abuse its

discretion in declining to do so because it thoroughly canvassed Villaseñor-Botello’s

reasons for his requests and appropriately decided that none of these were a valid

justification for appointing new counsel.

      3. Requests to Proceed Pro Se. Third, Villaseñor-Botello claims that the

district court erred in failing to address his requests to proceed pro se.

      The court committed no error because his requests were not explicit and

unequivocal. See United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002).

Villaseñor-Botello requested the opportunity to represent himself at a hearing on

March 21, 2016. The district court scheduled a hearing on the matter for March 28,

2016, but that hearing appears never to have taken place. From what we can discern

from the record, Villaseñor-Botello opted not to pursue his request to proceed pro se

and instead filed several motions in limine through counsel on the day the hearing

on his request was to take place. And contrary to his assertion on appeal, Villaseñor-

Botello never made an explicit request to represent himself at a later hearing on May

31, 2016.

      4. Federal Rule of Evidence 704(b). Fourth, Villaseñor-Botello argues that

the district improperly permitted the government’s expert to twice opine at trial on


                                            4
                                                                         16-50475, 16-50476
whether Villaseñor-Botello possessed the requisite mental state for attempted illegal

reentry, in violation of Federal Rule of Evidence 704(b). Even assuming arguendo

that the government’s expert’s testimony violated Rule 704(b), the district court’s

error in admitting this testimony was harmless, because a close review of the record

reveals that it is more probable than not that the testimony did not materially affect

the verdict. See United States v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015). Given

Villaseñor-Botello’s statements on the stand and during his recorded jail phone call,

the jury had ample evidence to conclude that he had the specific intent to reenter the

United States.

      5. Evidence from Competency Evaluation. Fifth, Villaseñor-Botello argues

that at trial the district court erroneously admitted evidence from a pre-trial

competency evaluation, in violation of the Fifth Amendment, Sixth Amendment, and

18 U.S.C. § 4241(f).

      Villaseñor-Botello’s attorneys requested a competency evaluation of their

client prior to trial. Villaseñor-Botello presented a mental-status defense to the jury,

and the government used information from Villaseñor-Botello’s competency

evaluation for rebuttal purposes only after this defense had been presented. This was

permissible under the Fifth Amendment and Sixth Amendment. See Buchanan v.

Kentucky, 483 U.S. 402, 423–25 (1987); Kansas v. Cheever, 571 U.S. 87, 93–94

(2013); Pawlyk v. Wood, 248 F.3d 815, 825, 827 (9th Cir. 2001). It also complied


                                           5
                                                                        16-50475, 16-50476
with 18 U.S.C. § 4241(f), since that statute bars the admission of a finding by the

court that the defendant is mentally competent to stand trial. No such evidence was

admitted in this case.

      6. Sentence. Finally, Villaseñor-Botello appeals his 57-month sentence for

his illegal-reentry conviction.

      Under the 2015 Sentencing Guidelines, a conviction for illegal reentry carries

a base offense level of eight. U.S. Sentencing Guidelines Manual § 2L1.2(a) (U.S.

Sentencing Comm’n 2015).          A defendant who has a prior conviction for an

aggravated felony faces an increase of eight levels, § 2L1.2(b)(1)(C); a defendant

who has a prior conviction for any other felony confronts an increase of only four

levels, § 2L1.2(b)(1)(D). A defendant with a criminal history of VI—as Villaseñor-

Botello has—and an offense level of sixteen faces a guidelines range of 46-57

months; a criminal history of VI and an offense level of twelve carries a guidelines

range of 30-37 months.

      Villaseñor-Botello argues that the district court calculated his guidelines

incorrectly because after Valdivia-Flores his Washington conviction for first-degree

robbery is not an aggravated felony. 876 F.3d at 1210. He contends that his offense

level is therefore twelve rather than sixteen, which brings his guidelines range to 30-

37 months.




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                                                                       16-50475, 16-50476
        Even if the district judge used the wrong guidelines range to arrive at his

sentencing     determination,   the   error       was   harmless   because   the    judge

“acknowledge[d] that the correct Guidelines range [was] in dispute and perform[ed]

his sentencing analysis twice, beginning with both the correct and incorrect range.”

United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (per

curiam). The district judge explicitly and adequately explained why he would

impose a 57-month sentence regardless of whether the guidelines dictated a 46-57

month range or a 30-37 month range. See id. at 1031.

        AFFIRMED.1




1
    We deny as moot the government’s Oct. 25, 2017, motion to take judicial notice.
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                                                                               FILED
United States v. Villaseñor-Botello, Nos. 16-50475, 16-50476
                                                                               MAY 08 2018
WATFORD, Circuit Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      I would reverse and remand for a new trial. In my view, the district court

abused its discretion by denying Gustavo Villaseñor-Botello’s request for new

counsel.

      The district court made an adequate inquiry into the source of the conflict

between Villaseñor and his lawyers from the Federal Defender’s office. The

source of that conflict was easy to understand: In an earlier criminal case in a

different district, Villaseñor had a bad experience being represented by an attorney

from a different Federal Defender’s office, and he remained convinced that he had

received deficient advice during the course of that representation. As a result, he

did not trust the public defenders who had been appointed to represent him in this

case. As one of his lawyers told the court, “he doesn’t trust that what we are

telling him is true. He doesn’t believe it.” The district court patiently tried to

explain to Villaseñor that his distrust of the lawyers from the Federal Defender’s

office was irrational, and that they were highly skilled attorneys with special

expertise representing defendants in cases like Villaseñor’s. But rightly or

wrongly, Villaseñor was not persuaded. His lawyers informed the court that, given

“the state of the relationship we have right now, we don’t feel that we can

adequately represent him.”
                                                                           Page 2 of 3
      The district court denied Villaseñor’s request for new counsel because the

court did not believe he had given a good enough reason for distrusting his current

counsel. In my view, though, it was not for the district court to decide that

Villaseñor’s distrust of public defenders was irrational and that he should (as the

district court put it) simply “get over that.” No one is suggesting that Villaseñor’s

inability to develop a relationship of trust and cooperation with his lawyers from

the Federal Defender’s office was manufactured. He wasn’t feigning a problem

communicating with his current counsel, as we sometimes see, as a means of

provoking a delay in the start of his trial. Villaseñor made his request for new

counsel at the outset of the case, a month before his trial was originally scheduled

to begin. And this was his first request for a new lawyer. We are not dealing with

a case in which a defendant has cycled through a succession of new lawyers, each

time finding some reason to be dissatisfied with them. Villaseñor made one

request at the start of the case for a new lawyer who was not from the Federal

Defender’s office. The district court had no sound reason for denying that request,

even if the court doubted the wisdom or rationality of Villaseñor’s general distrust

of public defenders.

      That Villaseñor was prejudiced by the district court’s refusal to appoint new

counsel cannot be doubted. He never did “get over” his distrust of the lawyers
                                                                               Page 3 of 3
from the Federal Defender’s office, and he therefore did not communicate with

them candidly about even the most basic matters necessary to allow counsel to

adequately represent him. The most dramatic evidence of that came during trial,

when Villaseñor announced without warning that he would be taking the stand to

testify in his own defense. His lawyers had no opportunity to prepare Villaseñor

beforehand and, not surprisingly, he made a series of damaging admissions on both

direct and cross-examination that undermined the defense Villaseñor’s lawyers had

attempted to present on his behalf.

       When a defendant does not trust his attorneys enough to tell them ahead of

time that he plans to testify, I think it’s fair to say there has been “a significant

breakdown in communication that substantially interfered with the attorney-client

relationship.” United States v. Velazquez, 855 F.3d 1021, 1035–36 (9th Cir. 2017)

(internal quotation marks omitted). I would reverse the conviction and remand for

a new trial at which Villaseñor is represented by a lawyer who can adequately

defend him.
