                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                         No. 13-10152
                 Plaintiff-Appellee,
                                                     D.C. No.
                     v.                           2:09-cr-00078-
                                                   JCM-GWF-2
 SHAWN RICE, AKA Shawn Talbot
 Rice,
              Defendant-Appellant.



 UNITED STATES OF AMERICA,                         No. 13-10186
                 Plaintiff-Appellee,
                                                     D.C. No.
                     v.                           2:10-cr-00520-
                                                   JCM-GWF-1
 SHAWN RICE, AKA Shawn Talbot
 Rice,
              Defendant-Appellant.                   OPINION


        Appeal from the United States District Court
                 for the District of Nevada
         James C. Mahan, District Judge, Presiding

                 Submitted September 9, 2014*
                   San Francisco, California


  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                    UNITED STATES V. RICE

                      Filed January 22, 2015

            Before: Carlos T. Bea, Sandra S. Ikuta,
           and Andrew D. Hurwitz, Circuit Judges.

                    Opinion by Judge Hurwitz


                           SUMMARY**


                           Criminal Law

    The panel affirmed convictions for conspiracy, money
laundering, and failure to appear, but vacated the sentence
and remanded for resentencing and recalculation of restitution
and forfeiture.

    The panel held that although the district court should have
acted more promptly in granting the defendant’s request to
appear pro se, the district court did not violate the defendant’s
Sixth Amendment right to self-representation.

    The panel held that the defendant’s Sixth Amendment
rights were not violated at a March 6, 2009, initial appearance
and arraignment on the conspiracy and money laundering
charges, which proceeded precisely as if the defendant were
representing himself with the assistance of standby counsel.

   The panel wrote that even assuming that some delay in
addressing the defendant’s March 6 self-representation

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. RICE                      3

request can be attributed to the defendant’s failure to appear
for a pretrial conference, the district court, which did not
conduct a Faretta hearing until July 28, 2009, and in the
interim struck a dozen pretrial motions because they were not
filed by counsel, should have taken up the self-representation
request more expeditiously.

    The panel held that the district court’s actions during the
July 28 initial appearance and arraignment on the failure-to-
appear charges ensured that there was no constitutional
violation. The panel explained that the district court, when
granting the defendant’s request to proceed pro se, placed the
defendant in the same situation on July 28 as would have
obtained had his Faretta motion been granted on March 6 by
inviting him to refile all motions, extending the time to file
motions to a date to which the defendant stipulated, and
giving him more time to prepare for trial than he would have
had otherwise.

    The panel found no violation of the defendant’s statutory
right to a speedy trial.

    In light of the government’s concession that the district
court improperly based the sentence, restitution, and
forfeiture on a loss amount that included money laundered
before the defendant joined the conspiracy, the panel
remanded for resentencing and recalculation.
4                 UNITED STATES V. RICE

                         COUNSEL

William H. Gamage, Gamage & Gamage, Las Vegas,
Nevada, for Defendant-Appellant.

Daniel G. Bogden, United States Attorney, Elizabeth O.
White, Appellate Chief, Adam Flake, Assistant United States
Attorney, Las Vegas, Nevada, for Plaintiff-Appellee.


                         OPINION

HURWITZ, Circuit Judge:

    The central question in this appeal is whether the district
court denied Shawn Rice his Sixth Amendment right to self-
representation. Although the district court should have acted
more promptly in granting Rice’s request to appear pro se, we
find no constitutional violation. We also reject Rice’s
argument that the district court failed to comply with the
Speedy Trial Act. We therefore affirm Rice’s convictions.
However, because the government concedes error in
sentencing and in calculating restitution and forfeiture, we
vacate Rice’s sentence and remand for further proceedings.

                              I.

     On March 3, 2009, Shawn Rice was indicted in the
District of Nevada for conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h) and money
laundering in violation of 18 U.S.C. § 1956(a)(3)(A). Rice’s
initial appearance and arraignment were on March 6, 2009.
During that proceeding, Rice and the magistrate judge
engaged in the following colloquy:
           UNITED STATES V. RICE                      5

THE COURT: All right. All right, now, with
regard to Mr. Rice. Mr. Rice, do you have
money for a lawyer?

DEFENDANT RICE: Your Honor, I’m a
full-time rabbi, so no I don’t have money for
a lawyer, nor will I be hiring one.

THE COURT: Nor will you be hiring one?

DEFENDANT RICE: That’s correct. If Mr.
Kimbrell [the federal public defender assigned
to the initial appearance] wants to assist
today, he seems like a great guy and doing a
great job here, but other than that, after this, if
he wants to – if you want to assign him as
standby counsel, that’s fine with me, but other
than that I’ll be –

THE COURT: All right. Well, that –

DEFENDANT RICE: – representing myself.

THE COURT: – that determination will also
be made at another time. We don’t have time
today to go into all of that.

Did you sign this financial affidavit today?

DEFENDANT RICE: I can’t read it from
here, but I assume that –

THE COURT: All right. This is the affidavit
that Mr. Kimbrell –
6             UNITED STATES V. RICE

    MR. KIMBRELL: Yes, Your Honor.

    THE COURT: – was using and wrote on this
    form when he asked you a number of
    questions about your financial circumstances.

    MR. KIMBRELL: Yes, I just informed him,
    I recognize the form as the one that I did
    provide him. I can –

    THE COURT: All right. So when you
    answered Mr. Kimbrell’s questions about your
    financial situation, did you answer him
    truthfully and completely?

    DEFENDANT RICE: Yes.

    THE COURT: Very well.

    Now based on the affidavit that I have here, it
    appears that you do not have the financial
    wherewithal to retain an attorney.

    Now I recognize you indicated that you would
    like to represent yourself and that
    determination as I say will be made at another
    time.

    But based on this affidavit, the Court will
    appoint Michael Kimbrell to represent you at
    this time, at least for today’s purposes, and
    until such time as the Court makes a
    determination as to whether or not you should
    be allowed to represent yourself.
                  UNITED STATES V. RICE                      7

Rice then pleaded not guilty and addressed the court at length
regarding pre-trial release. Kimbrell also made a presentation
regarding Rice’s bail status, and the magistrate judge released
Rice on his own recognizance pending trial on May 14, 2009.

    On June 22, 2009, the court issued a bench warrant for
Rice’s arrest because he failed to appear for a pretrial status
conference. On July 28, 2009, during Rice’s initial
appearance on the bench warrant, the magistrate judge
conducted a hearing and granted Rice’s request for self-
representation. Before then, Rice had filed 12 pretrial
motions pro se. The district court had stricken these motions,
citing District of Nevada Local Rule IA 10-6, which prohibits
pro se filings by represented parties. After granting Rice’s
request to represent himself, the court invited Rice to refile
the motions, and the parties stipulated to extend the deadline
to do so. Rice represented himself throughout the balance of
the proceedings in the district court and refiled several, but
not all, of his previous motions.

   After Rice once again failed to appear for a pretrial
hearing, calendar call, and trial, he was indicted on four
counts of failure to appear. He was arrested and returned to
Nevada, and the charges then pending—one conspiracy
charge, 13 money laundering charges, and four failure to
appear charges—were consolidated for trial.

   Rice represented himself at a two-day bench trial. The
court found him guilty on all counts and sentenced him to 98
months incarceration. The court also ordered restitution of
$95,782 and forfeiture of $1,290,000. This appeal followed.
8                  UNITED STATES V. RICE

                               II.

    The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” In Faretta v.
California, the Supreme Court held that the Sixth
Amendment right to counsel encompasses the right to self-
representation. 422 U.S. 806, 819–20 (1975). Rice argues
that he was denied the right to self-representation between
March 6, 2009, the date of his initial appearance and
arraignment, and July 28, 2009, when the court granted his
Faretta motion.

     We start from the premise that the right to counsel applies
at all critical stages of prosecution. See Marshall v. Rodgers,
133 S. Ct. 1446, 1449 (2013); Iowa v. Tovar, 541 U.S. 77,
80–81 (2004). And, we assume that the right to self-
representation applies to all proceedings to which the right to
counsel applies. See United States v. Gerritsen, 571 F.3d
1001, 1007 (9th Cir. 2009) (“A defendant therefore has two
correlative and mutually exclusive Sixth Amendment rights:
the right to have counsel, on one hand, and the right to refuse
counsel and represent himself, on the other.”); see also Tovar,
541 U.S. at 87–88 (applying Faretta analysis to a defendant’s
uncounseled guilty plea because a “plea hearing qualifies as
a ‘critical stage’”). We also recognize that “the right to
counsel guaranteed by the Sixth Amendment applies at the
first appearance before a judicial officer at which a defendant
is told of the formal accusation against him and restrictions
are imposed on his liberty.” Rothgery v. Gillespie Cnty.,
554 U.S. 191, 194 (2008).

  But, we nonetheless conclude that Rice’s Sixth
Amendment rights were not violated at the March 6, 2009
                    UNITED STATES V. RICE                          9

initial appearance and arraignment. Although the magistrate
judge deferred ruling on Rice’s self-representation request,
the initial appearance and arraignment proceeded precisely as
if Rice were representing himself with the assistance of
standby counsel. Rice entered his own plea of not guilty and
expressly consented to the participation of “standby counsel.”
 The magistrate judge allowed Rice to argue at length about
release terms, and counsel simply added a few points of
support. Rice was therefore not deprived of “control over his
own defense.” McKaskle v. Wiggins, 465 U.S. 168, 182
(1984) (“Participation by counsel with a pro se defendant’s
express approval is . . . constitutionally unobjectionable.”).1

    What occurred thereafter was more problematic. “Once
a defendant makes an unequivocal request to proceed pro se,
the court must hold a hearing—commonly known as a
Faretta hearing—to determine whether the defendant is
knowingly and intelligently forgoing his right to appointed
counsel.” United States v. Farias, 618 F.3d 1049, 1051–52
(9th Cir. 2010). Although Rice clearly requested to represent
himself on March 6, the district court did not conduct the
Faretta hearing until July 28, and in the interim struck a
dozen pretrial motions because they were not filed by
counsel. Even assuming that some delay in addressing the
issue can be attributed to Rice’s failure to appear for the
pretrial conference, the district court should have taken up the
self-representation request more expeditiously.             See
Raulerson v. Wainwright, 469 U.S. 966, 970 (1984)
(Marshall, J., dissenting from the denial of certiorari)
(“[O]nce a defendant affirmatively states his desire to
proceed pro se, a court should cease other business and make

  1
    Moreover, the magistrate judge did precisely what Rice personally
requested—he released him on his own recognizance.
10                 UNITED STATES V. RICE

the required inquiry. . . . Delay in holding a hearing after the
right is unequivocally asserted undermines that right by
forcing the accused to proceed with counsel in whom he has
no confidence and whom he may distrust.”); Buhl v. Cooksey,
233 F.3d 783, 794 (3d Cir. 2000) (“Once Buhl properly
asserted his right to proceed pro se the trial court was
obligated to undertake an appropriate inquiry under Faretta
. . . .”); Brown v. Wainwright, 665 F.2d 607, 612 (5th Cir.
1982) (en banc) (stating that a trial court may not “unduly
defer a ruling on a firm request by defendant to represent
himself”); see also McKaskle, 465 U.S. at 174 (noting that
a defendant’s right to self-representation “plainly
encompasses” the right “to make motions”).

    Rice contends that the delay in taking up his self-
representation request and the striking of his motions violated
the Sixth Amendment and resulted in structural error. The
Supreme Court has found denial of the right of self-
representation to be structural error because it deprives a
defendant “a fair chance to present his case in his own way,”
McKaskle, 465 U.S. at 177 & n.8, thus undermining “the
fairness of a criminal proceeding as a whole,” United States
v. Davila, 133 S. Ct. 2139, 2149 (2013).

     But, we find no Sixth Amendment violation in this record
as a whole. The district court’s actions during the July 28
initial appearance and arraignment on the failure-to-appear
charges ensured that there was no constitutional violation.
When the court granted Rice’s request to proceed pro se, it
invited him to refile all motions and extended the time to file
motions to a date to which Rice stipulated, some three months
away. And, trial was set for February 22, 2010; Rice thus had
more time to prepare for trial than if his motion had been
                   UNITED STATES V. RICE                       11

granted at the original March 6 initial appearance and
arraignment.

     In short, the district court reset the game clock on July 28,
placing Rice in the same situation as would have obtained had
the magistrate judge granted the Faretta motion at the March
6 appearance and arraignment. Rice thus received precisely
what the Sixth Amendment guarantees, “a fair chance to
present his case in his own way.” McKaskle, 465 U.S. at 177.
Because there was no Sixth Amendment violation, there was
no structural error. See Carroll v. Daugherty, 764 F.3d 786,
789–90 (7th Cir. 2014) (finding no structural error when the
alleged error “has already been corrected” by the trial court);
United States v. Lee, 760 F.3d 692, 695 (7th Cir. 2014)
(holding that denial of a defendant’s right to represent himself
at a pre-trial suppression hearing was cured by remanding for
a “re-do” of the hearing).

                               III.

     We also find no violation of Rice’s statutory right to a
speedy trial. The Speedy Trial Act requires trial to
“commence within seventy days from the filing date . . . of
the information or indictment.” 18 U.S.C. § 3161(c)(1). If a
defendant is absent on the trial date and a “subsequent
appearance before the court on a bench warrant or other
process . . . occurs more than 21 days after the day set for
trial,” the 70-day clock begins to run anew at the subsequent
appearance. Id. § 3161(k)(1).

    Rice failed to appear for his original trial date. His next
appearance before the district court was on January 19, 2012.
See id. Rice’s trial began 186 days later on July 23, 2012. Of
that period, 132 days were excluded because Rice stipulated
12                 UNITED STATES V. RICE

to continue the trial from March 13 to July 23, 2012. Thus,
Rice’s trial began 54 non-excludable days after his January
19, 2012 appearance, well within the 70-day statutory limit.

                               IV.

    “[I]n the case of a jointly undertaken criminal activity . . .
acts and omissions . . . that were part of the same course of
conduct or common scheme or plan as the offense of
conviction” are included in the calculation of a defendant’s
base offense level. U.S.S.G. § 1B1.3(a)(1)(B)–(2). However,
“[a] defendant’s relevant conduct does not include the
conduct of members of a conspiracy prior to the defendant
joining the conspiracy, even if the defendant knows of that
conduct.” Id. § 1B1.3, cmt. 2. The government concedes that
the sentence, restitution, and forfeiture imposed by the district
court were based on a loss amount that included money
laundered before Rice joined the conspiracy. In light of this
concession, we remand for resentencing and recalculation of
restitution and forfeiture.

                               V.

    For the reasons above, we AFFIRM Rice’s conviction,
but VACATE his sentence, and REMAND to the district
court for resentencing and recalculation of restitution and
forfeiture.
