                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 08 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50087

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00289-ODW-1
 v.

SHERVIN NEMAN, AKA Shervin                       MEMORANDUM*
Davatgarzadeh,

              Defendant-Appellant.


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

                          Submitted December 6, 2016**
                              Pasadena, California

Before: D.W. NELSON and OWENS, Circuit Judges, and KORMAN,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      Shervin Neman (“Neman”) appeals his conviction and 135-month sentence

for wire fraud, 18 U.S.C. § 1343, and mail fraud, 18 U.S.C. § 1341. Neman argues

that the district court: (1) abused its discretion and violated his right to counsel by

denying his requests for continuances and substitute counsel; and (2) erred in

imposing a two-level vulnerable victim enhancement under the Sentencing

Guidelines. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM

Neman’s conviction and sentence.

                                           I.

      First, the district court did not abuse its discretion or violate Neman’s right

to counsel in denying his three separate requests for continuances on April 8, April

25, and May 12, 2014.

      The denial of a continuance is reviewed for an abuse of discretion. United

States v. Nguyen, 262 F.3d 998, 1002–04 (9th Cir. 2001). “When a decision to

grant or deny a continuance implicates a defendant’s Sixth Amendment right to

counsel, a court must balance several factors to determine if the denial was fair and

reasonable.” United States v. Thompson, 587 F.3d 1165, 1174 (9th Cir. 2009)

(internal quotation marks and citation omitted). “At a minimum, however, in order

to succeed the appellant must show some prejudice resulting from the court’s

denial.” Armant v. Marquez, 772 F.2d 552, 556–57 (9th Cir. 1985). “When


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denying a continuance, especially one that arguably implicates the defendant’s

right to counsel, the district court should summarize in the record its reasons for

the denial.” United States v. Garrett, 179 F.3d 1143, 1147 (9th Cir. 1999).

      Here, the district court adequately summarized on the record its reasons for

denying Neman’s requests for continuances. Furthermore, the Thompson factors

do not suggest that the court acted unfairly or unreasonably, and Neman was not

prejudiced by the court’s denials. Accordingly, the district court did not abuse its

discretion or violate Neman’s right to counsel by denying his requests for

continuances.

                                          II.

      Second, the district court did not err in denying Neman’s two separate

requests for (1) new appointed counsel on April 25, 2014, and (2) substitute

retained counsel on May 12, 2014.

      We review the denial of a motion for substitution of counsel for abuse of

discretion. Nguyen, 262 F.3d at 1004. When a defendant “requests new

court-appointed counsel in place of an existing appointed attorney . . . we consider

(1) the timeliness of the substitution motion and the extent of resulting

inconvenience or delay; (2) the adequacy of the district court’s inquiry into the

defendant’s complaint; and (3) whether the conflict between the defendant and his


                                           3
attorney was so great that it prevented an adequate defense.” United States v.

Rivera Corona, 618 F.3d 976, 978 (9th Cir. 2010). However, a different test

applies when a defendant who can afford to hire his own attorney requests

substitute retained counsel. In such a case, the defendant “may have the counsel of

his choice unless a contrary result is compelled by purposes inherent in the fair,

efficient and orderly administration of justice.” Id. at 979 (internal quotation

marks and citation omitted).

      Here, after adequately inquiring into Neman’s initial request for new

appointed counsel on April 25, the district court reasonably found that the alleged

conflict between Neman and his attorney would not prevent an adequate defense,

and that substituting counsel would unnecessarily delay trial.

      Additionally, the court’s denial of Neman’s final request for substitute

retained counsel on the day before trial – which would have required over 30

witnesses to rearrange their schedules and would have potentially jeopardized the

ability of one key elderly witness to participate at all – was fully supported “by

purposes inherent in the fair, efficient and orderly administration of justice.”

Rivera Corona, 618 F.3d at 979 (internal citations omitted). Accordingly, the

district court did not abuse its discretion or deprive Neman of his right to counsel

by denying his two requests for new counsel.


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                                         III.

      Last, the district court did not clearly err by concluding that Robert Turner

was a vulnerable victim and that a two-level sentencing enhancement was

warranted.

      Because the application of the vulnerable victim enhancement is a factual

finding, we review the district court’s determination for clear error. United States

v. Randall, 162 F.3d 557, 560 (9th Cir. 1998). Under the Sentencing Guidelines,

“[a] two-level enhancement ‘applies to offenses involving an unusually vulnerable

victim in which the defendant knows or should have known of the victim’s unusual

vulnerability.’” United States v. Lloyd, 807 F.3d 1128, 1172 (9th Cir. 2015)

(quoting U.S.S.G. § 3A1.1(b)(1), cmt. n. 2). “A vulnerable victim is a person . . .

who is unusually vulnerable due to age, physical or mental condition, or who is

otherwise particularly susceptible to the criminal conduct.” Id. (internal quotation

marks and citation omitted). As we have consistently held, “when, as here, a

defendant ‘reloads’ victims by soliciting more money from those who have already

proven susceptible to an investment fraud . . . the vulnerable-victim enhancement

is appropriate.” Id. at 1172–73.

      At the sentencing hearing, the district court found that Neman reloaded

Turner in furtherance of his investment fraud scheme. Indeed, the court explained


                                          5
that for “a period of about 18 months [Turner] had been making investments with

[Neman],” and “whether or not [Turner] was . . . getting any returns . . . [Neman]

[was] able to go back to [Turner] repeatedly and get him to continue to make

investments with [Neman].” Based on these facts, the district court did not clearly

err in finding that Turner was a vulnerable victim and that a sentencing

enhancement was therefore warranted.

                                        IV.

      Accordingly, we affirm Neman’s conviction and 135-month sentence for

wire fraud and mail fraud.

      AFFIRMED.




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