                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             OCT 27 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   15-50380

              Plaintiff-Appellee,                 D.C. No.
                                                  2:12-cr-00527-GW-12
 v.

ZAID ABDUL WAKIL, AKA Alvin                       MEMORANDUM*
Boatright,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                       Argued and Submitted October 4, 2017
                               Pasadena, California

Before: KLEINFELD, GRABER, and CHRISTEN, Circuit Judges.

      Zaid Wakil appeals his jury conviction for conspiracy to possess with intent

to distribute cocaine in violation of 21 U.S.C. § 846, and three counts of possession

with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Wakil did not knowingly and intelligently waive his right to counsel

because the district court failed to ensure that he understood the possible penalties

he faced. See United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004)

(setting forth the conditions that need to be met in order for a Faretta waiver to be

deemed valid).

      2. Contrary to the government's suggestion, remand is inappropriate. In

limited circumstances, we may remand if “the record suggests that there is

additional evidence available about the adequacy of a waiver.” United States v.

Kimmel, 672 F.2d 720, 722 (9th Cir. 1982). But remand is the exception, not the

rule, and it is not appropriate here because nothing in the record suggests that there

are undiscovered facts showing that Wakil was aware of the possible penalties at

the time of his waiver. We therefore reverse the district court’s judgment and

remand for a new trial.

      3. It is unnecessary to reach Wakil’s remaining claims in light of the

disposition of this case.


      REVERSED and REMANDED.




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