                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 13 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30407

               Plaintiff - Appellee,             D.C. No. 1:08-cr-00053-JDS-1

  v.
                                                 MEMORANDUM *
PATRICK LEE BIG LAKE,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                    Jack D. Shanstrom, District Judge, Presiding

                             Submitted October 6, 2010 **
                                Seattle, Washington

Before:        KOZINSKI, Chief Judge, THOMAS and M. SMITH, Circuit
               Judges.

       The district judge did not abuse his discretion in denying Big Lake’s motion

for new counsel. See United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th

Cir. 2009). First, the motion wasn’t timely. The judge had already granted Big

          *
             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).
                                                                               page 2

Lake’s prior motion for new counsel, the motion was made less than two weeks

before trial and any newly appointed attorney would have required a sixth

continuance. See id. (motion for new counsel untimely where defendant “made

the motion little more than two weeks before trial” and “new counsel, if permitted,

would have required additional time to prepare”); see also United States v. Roston,

986 F.2d 1287, 1292 (9th Cir. 1993) (motion for new counsel untimely where

defendant waited until two weeks before trial and “had been through three

attorneys, and he was asking for a fourth”). Second, the judge’s inquiry was

adequate because he heard from both counsel and Big Lake about their relationship

and thus had “a sufficient basis for reaching an informed decision.” United

States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). Third, Big Lake hasn’t

shown that “the asserted conflict was so great as to result in a complete breakdown

in communication and a consequent inability to present a defense.” Mendez-

Sanchez, 563 F.3d at 942. Counsel put on an effective defense through cross-

examination, and it was Big Lake who “unilaterally cut[]-off communication”

despite counsel’s repeated attempts to meet with him. United States v. Smith, 282

F.3d 758, 763 (9th Cir. 2002); see also Roston, 986 F.2d at 1293 (denial of motion

for substitution of counsel upheld where defendant “attempted to use [his] refusal

to communicate to get a new lawyer”).
                                                                                page 3

         The district judge did not abuse his discretion in sentencing Big Lake to 400

months, a guideline sentence, because the sentence imposed is substantively

reasonable under the totality of the circumstances. See Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc).


         AFFIRMED.
