                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                           No. 12-50608
                 Plaintiff-Appellee,
                                                       D.C. No.
                      v.                             2:11-CR-217-
                                                        ODW-1
 STEVEN BOYLE YAMASHIRO,
              Defendant-Appellant.                     OPINION


         Appeal from the United States District Court
             for the Central District of California
         Otis D. Wright, II, District Judge, Presiding

                  Argued and Submitted
           December 9, 2014—Pasadena, California

                        Filed June 12, 2015

Before: Barry G. Silverman, Carlos T. Bea, Circuit Judges,
         and Robert Holmes Bell, District Judge.*

                   Opinion by Judge Bell;
    Partial Concurrence and Partial Dissent by Judge Bea




 *
   The Honorable Robert Holmes Bell, District Judge for the U.S. District
Court for the Western District of Michigan, sitting by designation.
2                UNITED STATES V. YAMASHIRO

                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction for wire fraud and money
laundering, vacated the sentence, and remanded for
resentencing before a different judge.

    The panel held that the defendant’s Sixth Amendment
right to counsel was violated by the district court’s decision
to proceed with victim allocution in the absence of trial
counsel during a portion of the defendant’s critical sentencing
stage. The panel held that the denial of counsel was structural
error, that the error was complete when the right to counsel
was denied, and that no additional showing of prejudice was
required.

    The panel held that the district court did not abuse its
discretion in denying the defendant’s motion to withdraw his
guilty plea.

    The panel concluded that reassignment to a different
judge for resentencing is advisable to preserve the appearance
of justice because the trial court committed structural error by
proceeding with victim allocution while defense counsel was
not present, and because the victim’s statements were highly
significant in the judge’s sentencing consideration.

    Concurring in part and dissenting in part, Judge Bea
agreed with the majority that the denial of the defendant’s

  **
     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. YAMASHIRO                   3

motion to withdraw his guilty plea should be affirmed, but
disagreed that the district court committed plain error when
it permitted one victim to allocute without the defendant’s
preferred counsel present.


                        COUNSEL

Sean K. Kennedy, Federal Public Defender, and Gail Ivens,
Deputy Federal Public Defender, Los Angeles, California, for
Defendant-Appellant.

André Birotte, Jr., United States Attorney, Robert E. Dugdale
and Jamie A. Lang, Assistant United States Attorneys, Los
Angeles, California, for Plaintiff-Appellee.


                        OPINION

BELL, District Judge:

    Steven Yamashiro appeals his conviction and sentence for
wire fraud and money laundering. We affirm his conviction,
but vacate his sentence as a result of structural error and
remand for resentencing before a different judge.

                 I. Factual Background

    From December 2005 to December 2007, Steven
Yamashiro, a registered investment advisor and securities
agent, engaged in a scheme to defraud his clients. The
scheme involved more than ten victims and more than $3.5
million. Yamashiro was charged with eight counts of wire
fraud in violation of 18 U.S.C. § 1343, two counts of money
4              UNITED STATES V. YAMASHIRO

laundering in violation of 18 U.S.C. § 1957, and two asset
forfeiture claims pursuant to 18 U.S.C. §§ 981(a)(1)(C) and
982. On December 27, 2011, Yamashiro pleaded guilty to
two counts of wire fraud (Counts 1 & 6) and one count of
money laundering (Count 10). Yamashiro waived any right
to appeal his convictions, except a claim based on an
involuntary plea. He also waived his right to appeal a
sentence of 78 months or less.

   The Probation Office calculated a total offense level of 26
and a criminal history category of I, resulting in a Sentencing
Guidelines range of 63–78 months of imprisonment. The
Probation Office recommended a low-end sentence of 63
months.

    On September 17, 2012, the day scheduled for sentencing,
Yamashiro requested a substitution of counsel. The district
court granted the motion, set a new date for sentencing, and
released Yamashiro’s original counsel from further
representation. Although Yamashiro’s newly substituted
counsel had not yet arrived in court, the court agreed to listen
to allocution from the victim witnesses who were in
attendance so that their travel to court would not be in vain.
The court requested Yamashiro’s original counsel who had
just been released to stay for the victim allocution until
Yamashiro’s newly substituted counsel arrived, but advised
him that he did not have to do anything.

    Glenn Hale, the first victim witness, described his
relationship of trust with Yamashiro, and the devastating
consequences the fraud had on his life. He requested that the
court impose the maximum penalty. After Hale completed
his allocution, Yamashiro’s new counsel arrived in court and
               UNITED STATES V. YAMASHIRO                     5

was present during the allocution of the next five victim
witnesses.

     Three months later, at the start of the second phase of the
sentencing hearing, the district court denied defense counsel’s
letter request for withdrawal of the plea. The court heard
additional allocution from victim witnesses, and then
sentenced Yamashiro to 63 months on each of the three
counts, to run consecutively, for a total sentence of 189
months in prison and restitution of $3,911,457.

                       II. Jurisdiction

   This Court has jurisdiction under 28 U.S.C. § 1291.

                       III. Discussion

A. Denial of Counsel

    Yamashiro contends that the district court committed
plain error when it allowed victim allocution to proceed
without counsel present. Yamashiro did not object to this
alleged error before the trial court. Accordingly, we review
for plain error. Fed. R. Crim. P. 52(b).

    In United States v. Olano, 507 U.S. 725, (1993), the
United States Supreme Court identified four steps or prongs
to plain-error review under Rule 52(b). Id. at 732–36. We
have summarized the Olano test as follows:

       (1) there must be an error or defect . . . that
       has not been . . . affirmatively waived by the
       appellant (2) the legal error must be clear or
       obvious, rather than subject to reasonable
6              UNITED STATES V. YAMASHIRO

       dispute; (3) the error must have affected the
       appellant’s substantial rights; and (4) if the
       above three prongs are satisfied, the court of
       appeals has the discretion to remedy the error
       . . . if the error seriously affects the fairness,
       integrity or public reputation of judicial
       proceedings.

United States v. Mageno, 762 F.3d 933, 940 (9th Cir. 2014)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks omitted)).

    The alleged error in this case concerns the denial of the
right to counsel. The Sixth Amendment right to counsel
attaches at all critical stages of a criminal prosecution. Hovey
v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006) (citing United
States v. Wade, 388 U.S. 218, 224 (1967)). “A critical stage
is any ‘stage of a criminal proceeding where substantial rights
of a criminal accused may be affected.’” Id. (quoting Mempa
v. Rhay, 389 U.S. 128, 134 (1967)). It has long been
understood that sentencing is a “critical stage” at which a
defendant is entitled to counsel. United States v. Leonti,
326 F.3d 1111, 1117 (9th Cir. 2003) (citing Gardner v.
Florida, 430 U.S. 349, 358 (1977)); see also Mempa,
389 U.S. at 136-37 (holding that a deferred sentencing
hearing is a critical stage despite the limited discretion
afforded the sentencing judge).

    While conceding that sentencing is a critical phase and
that victim Hale’s allocution occurred during a sentencing
hearing, the government nevertheless contends that victim
allocution is not a critical stage because crime victims have
a nearly unfettered right to be heard at sentencing under the
Crime Victims’ Rights Act (“CVRA”), 18 U.S.C.
               UNITED STATES V. YAMASHIRO                     7

§ 3771(a)(4), and are not subject to cross-examination or
other “trial-like confrontations.”

    “[T]he essence of a ‘critical stage’ is not its formal
resemblance to a trial, but the adversary nature of the
proceeding, combined with the possibility that a defendant
will be prejudiced in some significant way by the absence of
counsel.” Leonti, 326 F.3d at 1117. The CVRA provides
victims the right to be heard at sentencings. 18 U.S.C.
§ 3771(a)(4). Among the purposes of the CVRA is to make
victims “full participants” in the sentencing process and to
“ensure that the district court doesn’t discount the impact of
the crime on the victims.” Kenna v. U.S. Dist. Court,
435 F.3d 1011, 1016 (9th Cir. 2006). Victim allocution
provides the court with information it may use in sentencing
the defendant. Because the victim statements may influence
the resulting sentence, substantial rights of the defendant may
be affected. Victim allocution is thus part of the adversarial
sentencing procedure.

    There is also a possibility of significant prejudice if
counsel is not present to hear what was said, how it was said,
and how it was received by the court. This case provides a
particularly clear illustration of the critical nature of victim
allocution. Hale’s testimony was compelling, and the trial
court readily acknowledged that he was influenced by the
victims’ allocution because it increased his understanding of
the human impact of Yamashiro’s conduct.

    Yamashiro’s Sixth Amendment right to counsel was
violated by the court’s decision to proceed with victim
allocution in the absence of trial counsel during a portion of
Yamashiro’s critical sentencing stage. The denial of counsel
is error that is not subject to reasonable dispute, and
8              UNITED STATES V. YAMASHIRO

Yamashiro did not affirmatively waive his right to counsel at
this critical stage. Accordingly, this clear and obvious error
satisfies the first two prongs of the Olano plain-error test.

    The government argues that even if the proceeding
violated Yamashiro’s right to counsel, any violation was
trivial, and amounts to harmless error in light of the fact that
only one victim spoke, his allocution was not subject to cross-
examination, his statement was recorded, and he appeared
again at the continuation of Yamashiro’s sentencing.

    Most trial errors are subject to harmless-error analysis.
However, certain errors fall within the class of “structural
defects in the constitution of the trial mechanism” that “defy
analysis by ‘harmless-error’ standards.”               Arizona v.
Fulminante, 499 U.S. 279, 309 (1991). “[T]he Sixth
Amendment right to counsel is among those ‘constitutional
rights so basic to a fair trial that their infraction can never be
treated as harmless error.’” United States v. Hamilton,
391 F.3d 1066, 1070 (9th Cir. 2004) (quoting Chapman v.
California, 386 U.S. 18, 23 & n.5 (1967)). “[T]he absence of
counsel during a critical stage of a criminal proceeding is
precisely the type of ‘structural defect’ to which no
harmless-error analysis can be applied.” 391 F.3d at 1070
(citation omitted).

    Yamashiro was not represented by anyone when the
allocution phase of his sentencing proceeding began. His
counsel had been dismissed, and his new counsel had not yet
arrived. We have held that the denial of the right to counsel
at sentencing is structural error. Robinson v. Ignacio,
360 F.3d 1044, 1061 (9th Cir. 2004) (“Because of the
fundamental importance of the right to counsel [at
                 UNITED STATES V. YAMASHIRO                             9

sentencing], Robinson need not prove prejudice and a
harmless error analysis is not required.”).1

    We conclude that the denial of counsel during a portion
of the allocution phase of the sentencing proceeding was
structural error, that the error was complete when the right to
counsel was denied, and that no additional showing of
prejudice was required.

    In most cases, the requirement of the plain error test that
an error “affect substantial rights” means that the error must
have been prejudicial, i.e., that it must have affected the
outcome of the district court proceedings. United States v.
Gadson, 763 F.3d 1189, 1231 (9th Cir. 2014). The
requirement is different, however, in cases where there has
been a finding of structural error because “a finding of
structural error satisfies the third prong of the Olano plain-
error test.” United States v. Recio, 371 F.3d 1093, 1101 (9th
Cir. 2004). We accordingly conclude that the error affected
Yamashiro’s substantial rights. We are also satisfied that the
denial of counsel seriously affected the fairness, integrity or
public reputation of the judicial proceedings. Accordingly,
Yamashiro’s sentence will be vacated and the case will be
remanded for resentencing. Because we are vacating
Yamashiro’s sentence for structural error, we do not reach the
question of whether the sentence was procedurally and/or
substantively unreasonable.



 1
   In United States v. Walters, 309 F.3d 589, 593 (9th Cir. 2002), we held
denial of counsel of choice at sentencing was not structural error and was
subject to harmless error analysis. 309 F.3d at 592–93. Walters is
distinguishable because it involved denial of counsel “of choice,” rather
than denial of counsel altogether.
10            UNITED STATES V. YAMASHIRO

B. Motion to Withdraw Guilty Plea

    Yamashiro contends that the district court abused its
discretion by failing to rule on his motion to withdraw his
guilty plea. He accordingly requests that his conviction be
reversed and remanded for consideration of the motion.

    Contrary to Yamashiro’s argument, the district court did
deny his motion to withdraw his guilty plea. Denial of that
motion was not error. “The decision whether to permit the
withdrawal of a plea ‘is solely within the discretion of the
district court.’” United States v. Showalter, 569 F.3d 1150,
1154 (9th Cir. 2009) (quoting United States v. Nostratis,
321 F.3d 1206, 1208 (9th Cir. 2003)). Accordingly, we
review a district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion. United States v.
Ensminger, 567 F.3d 587, 590 (9th Cir. 2009). Under this
standard, we review the district court’s findings of fact for
clear error. United States v. McTiernan, 546 F.3d 1160, 1166
(9th Cir. 2008).

     A defendant may withdraw a plea of guilty before
sentencing if “the defendant can show a fair and just reason
for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
Although the defendant has the burden of demonstrating a
fair and just reason, United States v. Davis, 428 F.3d 802, 805
(9th Cir. 2005), the “fair and just” standard is applied
liberally. United States v. Bonilla, 637 F.3d 980, 983 (9th
Cir. 2011). “Fair and just” reasons for withdrawal include
inadequate Rule 11 plea colloquies, newly discovered
evidence, intervening circumstances, or any other reason for
withdrawing the plea that did not exist when the defendant
entered his plea. McTiernan, 546 F.3d at 1167 (citing Davis,
428 F.3d at 805). Erroneous or inadequate legal advice may
               UNITED STATES V. YAMASHIRO                    11

also constitute a fair and just reason for withdrawal of a plea.
Bonilla, 637 F.3d at 983 (citing McTiernan, 546 F.3d at
1167). A defendant who moves to withdraw a guilty plea “is
not required to show that he would not have pled, but only
that the proper legal advice of which he was deprived ‘could
have at least plausibly motivated a reasonable person in [the
defendant’s] position not to have pled guilty.’” Bonilla,
637 F.3d at 983 (quoting United States v. Garcia, 401 F.3d
1008, 1011–12 (9th Cir. 2005)).

    The district court did not abuse its discretion in denying
Yamashiro’s motion to withdraw his guilty plea.
Yamashiro’s testimony during the plea hearing directly
contradicted his contention that he did not enter his plea
voluntarily and knowingly. “Statements made by a defendant
during a guilty plea hearing carry a strong presumption of
veracity in subsequent proceedings attacking the plea.”
United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008).
Yamashiro has not presented evidence to rebut the
presumption that his statements at his plea were voluntary,
nor has he presented evidence to suggest that it was plausible
that he would have chosen to go to trial had he been given
proper legal advice. Moreover, Yamashiro did not raise the
issue of the voluntariness of his plea until almost a year after
his plea, on the eve of sentencing. Yamashiro did not meet
his burden of demonstrating a fair and just reason for
withdrawing his plea. Accordingly, the district court did not
abuse its discretion in denying Yamashiro’s motion to
withdraw his guilty plea.

C. Reassignment

    Yamashiro requests that on remand his case be reassigned
to a different district judge for resentencing.
12             UNITED STATES V. YAMASHIRO

    “‘Although we generally remand for resentencing to the
original district judge, we remand to a different judge if there
are unusual circumstances.’” United States v. Rivera,
682 F.3d 1223, 1237 (9th Cir. 2012) (quoting United States
v. Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)). To
determine whether there are unusual circumstances that
would warrant reassignment, we consider the following three
factors:

       (1) whether the original judge would
       reasonably be expected upon remand to have
       substantial difficulty in putting out of his or
       her mind previously expressed views or
       findings determined to be erroneous or based
       on evidence that must be rejected, (2) whether
       reassignment is advisable to preserve the
       appearance of justice, and (3) whether
       reassignment would entail waste and
       duplication out of proportion to any gain in
       preserving appearance of fairness.

Id. (quoting Quach, 302 F.3d at 1103). “The first two of
these factors are of equal importance, and a finding of one of
them would support a remand to a different judge.” Id.
(citation and internal quotation marks omitted). The “unusual
circumstances” standard “does not require a showing of
‘actual bias on the part of the judge who first heard the
case.’” Krechman v. Cnty. of Riverside, 723 F.3d 1104, 1111
(9th Cir. 2013) (quoting Mendez v. Cnty. of San Bernardino,
540 F.3d 1109, 1133 (9th Cir. 2008)).

    Because the trial court committed structural error by
proceeding with victim allocution while defense counsel was
not present, and because the victim’s statements were highly
              UNITED STATES V. YAMASHIRO                   13

significant in the judge’s sentencing consideration,
reassignment is advisable to preserve the appearance of
justice. See United States v. Noushfar, 78 F.3d 1442, 1448
(9th Cir. 1996) (remanding with instructions to reassign the
case where reversal was based on structural error). In United
States v. Mikaelian, 168 F.3d 380 (9th Cir. 1999), we held
that reassignment to a different judge on remand for
sentencing was advisable where the original judge reviewed
in camera documents which could be relevant to sentencing
arguments. Id. at 388. Here, as in Mikaelian, the district
judge may have a difficult time putting out of his mind victim
allocution that came in when defense counsel was not present.
Second, the appearance of justice would be served by having
another judge, who has not heard the victim allocution that
came in while defendant was not represented, conduct the
resentencing. Third, although reassignment will entail some
duplication of effort, this case did not go to trial and
accordingly does not present a new judge with a voluminous
trial record to review. See id.

    Because of the unusual circumstances in this case, we will
remand with instructions that this case be reassigned to a
different judge for resentencing.

                      IV. Conclusion

    We affirm Yamashiro’s conviction, vacate his sentence
for structural error, and remand with instructions that this
case be reassigned to a different judge for resentencing.

   CONVICTION AFFIRMED, SENTENCE VACATED
and REMANDED.
14             UNITED STATES V. YAMASHIRO

BEA, Circuit Judge, concurring in part and dissenting in part:

    I agree with the majority that we should affirm the district
court’s decision to deny Steven Yamashiro’s motion to
withdraw his guilty plea. But I disagree that the district court
committed “plain error” when it permitted one victim to
allocute without Yamashiro’s preferred counsel present.

    The standard of review matters. We must apply plain-
error review when, as here, there was no objection lodged in
the district court to the claimed error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). The Supreme Court has
explained the plain-error standard is a “limitation on appellate
authority” that permits reversal in a small set of
circumstances where the defendant forfeits his right to contest
the district court’s decision but that forfeiture is excused on
appeal. See United States v. Olano, 507 U.S. 725, 732–33
(1993). The rule is meant to correct “only ‘particularly
egregious errors’ . . . solely in those circumstances in which
a miscarriage of justice would otherwise result.” United
States v. Young, 470 U.S. 1, 15 (1985) (citations omitted).
For the life of me, I cannot see how the absence of counsel
for a single victim’s allocution rises to that level, especially
when counsel had three months either to review a transcript
of the allocution or to move to strike the allocution prior to
sentencing.

                               I.

    We “cannot properly evaluate a case [under plain-error
review] except by viewing such a claim against the entire
record.” Young, 470 U.S. at 16. In that regard, we are not
supposed “to extract from episodes in isolation abstract
questions of evidence and procedure. To turn a criminal trial
               UNITED STATES V. YAMASHIRO                       15

into a quest for error no more promotes the ends of justice
than to acquiesce in low standards of criminal prosecution.”
Id. (quoting Johnson v. United States, 318 U.S. 189, 202
(1943) (Frankfurter, J., concurring)). For those reasons, a full
recitation of the facts is necessary.

    Yamashiro pleaded guilty in December 2011 to two
counts of wire fraud and one count of money laundering
arising out of his sham investment scheme. At the
commencement of the sentencing hearing on September 17,
2012, Yamashiro’s counsel, Mark Hathaway, for the first
time notified the court that Yamashiro no longer wanted
Hathaway to represent him.1 Hathaway presented the court
with a proposed consent order to substitute Jack Conway as
Yamashiro’s defense counsel. The district court expressed
frustration with the lateness of the request to substitute
counsel, it coming nine months after Yamashiro pleaded
guilty and on the day of sentencing; further, the Court noted
that several victims had travelled to the sentencing hearing
specifically to allocute. The district judge found Yamashiro’s
request was a “delaying tactic” that was “solely for the
purpose of creating a continuance and causing inconvenience
to the parties, to the victims, and to the court.” Hathaway
notified the district judge that Conway was absent because he
was at a hearing at another courthouse. The district judge
stated he would continue the hearing for 30 days.

    Before court adjourned, the prosecutor asked if the
victims could allocute. The district judge agreed: “I do not
want this to be a wasted trip for any of the victims. Let’s do
this. I would like to hear from as many as wish to speak.”

  1
    Notwithstanding Yamashiro and his new counsel, Jack Conway, had
consented to the substitution a week earlier.
16               UNITED STATES V. YAMASHIRO

The district judge then excused Hathaway. After the
government noted it may be improper to permit the victims to
allocute without counsel present, the district court decided in
an “exercise of caution” to have Hathaway remain with
Yamashiro during the allocutions. The district judge told
Hathaway, “You don’t have to do anything. I just want to
have a full house here while we listen to the victims.” The
first victim, Glenn Hale, took the stand and explained how
Yamashiro duped him and his wife into investing with
Yamashiro, the effect the lost investments had on his life and
marriage, and his wish that Yamashiro be imprisoned.
Conway arrived after Hale’s allocution. The district court
then excused Hathaway, who conferred with Conway off the
record before exiting the courtroom. Conway did not seek a
recess for purposes of conferring with his client, Yamashiro,
with respect to Hale’s allocution. Conway did not ask for a
read-back of Hale’s allocution. The remaining victims
allocuted with Conway present. However, instead of
sentencing Yamashiro, the district court continued the
sentencing hearing to give Conway the opportunity to get up
to speed on the case.

    The continued sentencing hearing was ultimately held
three months later. During that time, Conway could have
ordered and reviewed a transcript of Hale’s allocution, though
apparently he did not do so.2 At the sentencing hearing, Hale
allocuted again, though his allocution was shorter, and he
repeated his wish that Yamashiro be imprisoned for his
crimes. At the end of the hearing, the district judge sentenced
Yamashiro to 189 months imprisonment.



  2
    During oral argument, Yamashiro’s appellate counsel stated Conway
could have obtained a transcript of Hale’s allocution but did not do so.
                 UNITED STATES V. YAMASHIRO                            17

                                    II.

    Neither Hathaway nor Conway ever filed a motion to
strike Hale’s first allocution or otherwise objected to that
allocution. We therefore review for plain error. Puckett,
556 U.S. at 135. That review has four prongs. “First, there
must be an error or defect.” Id. “Second, the legal error must
be clear or obvious, rather than subject to reasonable
dispute.” Id. “Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case
means he must demonstrate that it ‘affected the outcome of
the district court proceedings.’” Id. (citation omitted).3
“Fourth and finally, if the above three prongs are satisfied, the
court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only if the
error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Id. (emphasis in
original) (citation omitted).

    The majority flatly states that Yamashiro satisfies the
fourth element in a single line: “We are also satisfied that the
denial of counsel seriously affected the fairness, integrity or
public reputation of the judicial proceedings.” I cannot agree
for several reasons. To start, it is not even clear the district
court denied Yamashiro his right to counsel during Hale’s
allocution because Hathaway remained with Yamashiro
during that allocution. To that end, the district court found


 3
   We have held the third prong is similar to the harmless-error analysis
and is satisfied when, as here, the alleged error is structural. See United
States v. Collins, 684 F.3d 873, 881 (9th Cir. 2012) (“[I]f the plain error
was a structural one, the existence of prejudice is generally presumed.”);
Robinson v. Ignacio, 360 F.3d 1044, 1061 (9th Cir. 2004) (explaining the
deprivation of counsel at sentencing is structural error).
18             UNITED STATES V. YAMASHIRO

Yamashiro’s request to change counsel from Hathaway to
Conway was a “delaying tactic” that was “solely for the
purpose of creating a continuance and causing an
inconvenience to the parties, to the victims and to the court.”
Because of that finding, it is likely the district court would
not have erred if it denied Yamashiro’s request for new
counsel and proceeded immediately to sentencing with
Hathaway as counsel. “The Sixth Amendment grants
criminal defendants a qualified constitutional right to hire
counsel of their choice but the right is qualified in that it may
be abridged to serve some ‘compelling purpose.’” United
States v. Walters, 309 F.3d 589, 592 (9th Cir. 2002)
(emphasis added). A defendant’s exercise of the right cannot
“unduly hinder the fair, efficient and orderly administration
of justice.” Id.; see also United States v. Maness, 566 F.3d
894, 896 (9th Cir. 2009) (exercising the Sixth Amendment
right to counsel cannot have the “purpose of delay.”). Had
the district court denied Yamashiro’s request, he simply
would have prevented Yamashiro from “unduly hinder[ing]
the fair, efficient and orderly administration of justice,”
which is a valid reason for denying such a request. Walters,
309 F.3d at 592; see also United States v. D’Amore, 56 F.3d
1202, 1204 (9th Cir. 1995) (“[A] compelling purpose may be
found when granting the motion would lead to a delay in the
proceedings and the Government’s interest in the prompt and
efficient administration of justice outweighs the defendant’s
need for new counsel to adequately defend himself.”),
overruled on other grounds by United States v. Garrett,
179 F.3d 1143 (9th Cir. 1999) (en banc).

    Unfortunately, the record is unclear on whether the
district court granted Yamashiro’s motion immediately, and
relieved Hathaway permanently, or waited to grant the
motion and to relieve Hathaway until Conway arrived. The
                 UNITED STATES V. YAMASHIRO                            19

district judge stated, “I have the substitution, and I will sign
it. I am going to relieve [Hathaway] as counsel of record.”
The district judge then relieved Hathaway. But in his next
breath the judge asked Hathaway to remain so there was a
“full house here while we listen to the victims.” And
Hathaway stayed with Yamashiro during Hale’s allocution.
The district court excused Hathaway only after Conway
arrived. At that point, the district judge reiterated that he
wanted counsel with Yamashiro during each allocution: “I
have already relieved Mr. Hathaway, but we are hearing from
the various victims of your new client’s numerous schemes.
And I wanted in an exercise of an abundance of caution, I
wanted counsel to be seated with him.” Conway responded,
“Yes, of course,” after which the judge told Hathaway he
could leave. The better course would have been for the
district court either to deny or grant Yamashiro’s motion or
otherwise make clear whether Hathaway was acting as
Yamashiro’s counsel until Conway arrived. The district
judge’s statements instead (unintentionally) obfuscated the
issue. In any event, it is undisputed that Hathaway was
present and able to observe Hale’s allocution, which
undercuts the argument that the error “seriously affects the
fairness, integrity or public reputation of judicial
proceedings.”4 Puckett, 556 U.S. at 135 (citation omitted).

   Further, there is nothing Conway could have done to alter
Hale’s allocution had he been present because defense


 4
   The district judge did tell Hathaway, “You don’t have to do anything.”
But the court’s statement was likely a recognition that defense counsel has
no meaningful role to play while a victim allocutes, as I explain below,
rather than a formal statement that Hathaway was not to continue serving
as Yamashiro’s counsel. Indeed, when Conway arrived, the district court
likewise instructed him to “sit and listen.”
20            UNITED STATES V. YAMASHIRO

counsel has virtually no role to play during victim
allocutions. The Crimes’ Victim Rights Act (“CVRA”) gives
victims the “right to be reasonably heard at any public
proceeding in the district court involving . . . sentencing.”
Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d 1011, 1016
(9th Cir. 2006) (quoting 18 U.S.C. § 3771(a)(4)). A “district
court must hear from the victims, if they choose to speak”
because the “CVRA gives victims the right to confront every
defendant who has wronged them.” Id. at 1016–17 (emphasis
added). The CVRA does not limit the substance of victims’
allocutions, and even grants victims the right to file a
mandamus action against the district court to enforce their
right to be heard. See id.; 18 U.S.C. § 3771(d)(3). The
Federal Rules of Criminal Procedure likewise require that any
victim who wishes to allocute be given the opportunity to do
so. Fed. R. Crim. P. 32(i)(4)(B) (“Before imposing sentence,
the court must address any victim of the crime who is present
at sentencing and must permit the victim to be reasonably
heard.”). And all information is relevant to sentencing: “No
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of
an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate
sentence.” 18 U.S.C. § 3661. For these reasons, Hale’s
allocution proceeded in exactly the same way as it would
have had Conway been present.

    Finally, though Conway missed Hale’s allocution, he had
plenty of time to learn the substance of that allocution prior
to sentencing. After the remaining victims allocuted in
Conway’s presence, the district court continued the
sentencing, which ultimately occurred three months later.
During that delay, Conway could have ordered and reviewed
a transcript of Hale’s allocution and incorporated its
                  UNITED STATES V. YAMASHIRO                             21

substance into his sentencing argument. True, Conway lost
the opportunity to be present for Hale’s allocution; he could
not consult with Yamashiro during the allocution or observe
the effect, if any, Hale’s allocution may have had on the
district judge. But that is no different than when a victim
chooses to submit victim-impact letters instead of appearing
in person. See United States v. Burkholder, 590 F.3d 1071,
1075 (9th Cir. 2010) (explaining a victim can be heard by
“submitting a written impact statement describing the effects
of a defendant’s crime.”). Conway’s absence during Hale’s
first allocution is similar to counsel’s absence when the judge
reads letters from victims in chambers. And, in any event,
Conway could have learned of Hale’s demeanor and the
district judge’s reaction to Hale’s allocution by speaking with
Hathaway. If Conway could not reach Hathaway, Conway,
of course, could have moved to strike Hale’s allocution
entirely; he never did.5


  5
    I note that in similar circumstances we have found there was no error
at all. See United States v. Rice, 776 F.3d 1021 (9th Cir. 2015). In Rice,
the district court appointed the defendant, Shawn Rice, counsel at his
arraignment, but Rice requested to represent himself, as was his right
under the Sixth Amendment. Id. at 1023. The district court refused to
conduct a Faretta hearing that day, and did not conduct the Faretta
hearing and grant Rice’s motion to proceed pro se until four months later.
Id. at 1023–24. In the interim, Rice filed several pro se motions the
district court struck because of a local rule that prohibits pro se filings
from represented parties. Id. at 1024. After the district court granted
Rice’s request to proceed pro se, the district court permitted Rice to refile
his previously stricken motions and Rice represented himself through trial.
Id. On appeal, the panel explained “the district court should have taken
up the self-representation request more expeditiously.” Id. at 1025. But
the panel found “no Sixth Amendment violation in this record as a whole”
because the “district court reset the game clock [at the Faretta hearing],
placing Rice in the same situation as would have obtained had the [] judge
granted the Faretta motion at the . . . arraignment.” Id.
22                UNITED STATES V. YAMASHIRO

                                    III.

    In view of the facts of this case, I cannot see how the
alleged error “‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Puckett, 556 U.S.
at 135 (citation omitted). Yamashiro attempted to delay
proceedings, had an attorney with him during the allocution,
and his new attorney had the opportunity to review that
allocution prior to sentencing. The error, to the extent there
was one, does not meet the standard for reversal under plain-
error review. At the very least, this is not a case where we
should exercise our discretion to remedy the error below. Id.

    I do not mean to imply the deprivation of counsel is a
minor violation; it isn’t minor. But we should correct errors
on plain-error review “solely in those circumstances in which
a miscarriage of justice would otherwise result.” Young,
470 U.S. at 15 (citations omitted). This is no such case.

     I respectfully dissent.




     Though not directly on point, the rule in Rice is relevant here.
Yamashiro contends his right to counsel was violated at the first hearing
because Hale allocuted without Conway present. But the district judge
continued the hearing, which permitted Conway to review Hale’s
allocution before the judge sentenced Yamashiro. Then, Hale allocuted
a second time, this time before Conway. Conway was therefore able to
incorporate Hale’s first allocution into his sentencing argument just as if
he were present at that allocution. In effect, the “district court reset the
game clock”; Yamashiro was placed “in the same situation as would have
obtained had” the court waited for Conway to arrive prior to Hale’s first
allocution. Rice, 776 F.3d at 1026.
