                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                      MAY 13 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No.   15-50184

              Plaintiff - Appellee,                D.C. No. 3:14-cr-02054-H-1

    v.
                                                   MEMORANDUM*
 GLORIA GAIL GILMORE,

              Defendant - Appellant.

                     Appeal from the United States District Court
                       for the Southern District of California
                      Marilyn L. Huff, District Judge, Presiding

                          Argued and Submitted May 5, 2016
                                Pasadena, California

Before: FISHER, M. SMITH, and NGUYEN, Circuit Judges.

         Gloria Gilmore appeals her convictions for importation of methamphetamine

and conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952, 960,

and 963. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

         Gilmore argues that the district court violated her Sixth Amendment right to

counsel of choice by denying a second attorney, who she contends would have

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
appeared pro bono, from acting as co-counsel alongside her appointed attorney in

her one-day bench trial. Generally, we consider only the district court record on

appeal. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). As

Gilmore’s counsel conceded at oral argument, she bears the burden of showing that

her second counsel would have appeared pro bono. She has not met that burden

here.

        At a court hearing two days before trial, Gilmore’s appointed counsel

attempted to introduce his law partner as co-counsel. In so doing he mentioned

only that his partner was also a member of the Criminal Justice Act (CJA) panel;

he made no mention that his partner desired to assist pro bono, and the record does

not reflect that the district court understood the request as such. In denying the

request, the district court stated to Gilmore’s appointed attorney, “I’ve appointed

you, and it’s just a single [appointment],” and also specifically noted, “It’s not a

capital case. It doesn’t warrant two lawyers. You’re the one that’s appointed.”

These references to CJA requirements suggest the district court assumed both

attorneys would be seeking payment and ruled that, because Gilmore’s was not a

capital case, the CJA did not entitle Gilmore to two attorneys. See

18 U.S.C. § 3005; see also United States v. Waggoner, 339 F.3d 915, 919 (9th Cir.

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2003).

      Critically, following the district court’s initial ruling, Gilmore made no

effort, either during the hearing or in a follow-up submission to the court, to clarify

this issue. Because the pro bono status of Gilmore’s presumptive co-counsel is

simply not established in this record, we need not reach the issue of whether

Gilmore, as an indigent defendant, has the right to pro bono counsel of choice

under the Sixth Amendment.1

         AFFIRMED.




1
  Gilmore also argues that United States v. Ramos-Atondo, 732 F.3d 1113 (9th Cir.
2013), and United States v. Nicholson, 677 F.2d 706 (9th Cir. 1982), were wrongly
decided. She correctly acknowledges that they are binding precedent and simply
raises the issue to preserve it for review.

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