           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Saldivar-Trujillo           No. 03-1728
        ELECTRONIC CITATION: 2004 FED App. 0281P (6th Cir.)
                    File Name: 04a0281p.06                                 Appellant. Daniel Y. Mekaru, ASSISTANT UNITED
                                                                           STATES ATTORNEY, Grand Rapids, Michigan, for
                                                                           Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC
UNITED STATES COURT OF APPEALS                                             DEFENDERS OFFICE, Grand Rapids, Michigan, for
                                                                           Appellant. Daniel Y. Mekaru, ASSISTANT UNITED
                  FOR THE SIXTH CIRCUIT                                    STATES ATTORNEY, Grand Rapids, Michigan, for
                    _________________                                      Appellee.

 UNITED STATES OF AMERICA , X                                                                  _________________
            Plaintiff-Appellee, -
                                  -                                                                OPINION
                                  -   No. 03-1728                                              _________________
           v.                     -
                                   >                                         RONALD LEE GILMAN, Circuit Judge. Martin Saldivar-
                                  ,                                        Trujillo, a convicted felon who had previously been deported
 MARTIN SALDIVAR-TRUJILLO, -
          Defendant-Appellant. -                                           as an illegal alien, pled guilty to one count of again being
                                                                           present in the United States without authorization. His
                                 N                                         renewed presence violated 8 U.S.C. § 1326(a) and (b)(2). The
       Appeal from the United States District Court                        prior aggravated felony occurred in Wisconsin, where
  for the Western District of Michigan at Grand Rapids.                    Saldivar-Trujillo was convicted of possessing marijuana with
    No. 02-00213—Richard A. Enslen, District Judge.                        the intent to deliver. After he pled guilty, but before the
                                                                           sentencing hearing, Saldivar-Trujillo sent four letters to the
                       Argued: July 8, 2004                                district court expressing his unhappiness with his court-
                                                                           appointed attorney and requesting that the court appoint new
             Decided and Filed: August 26, 2004                            counsel.

   Before: KRUPANSKY and GILMAN, Circuit Judges;                              At the sentencing hearing, the district court denied
               MAYS, District Judge.*                                      Saldivar-Trujillo’s request for substitute counsel after hearing
                                                                           from both Saldivar-Trujillo and his defense counsel about the
                       _________________                                   issue. The district court subsequently granted Saldivar-
                                                                           Trujillo a three-level sentence reduction for acceptance of
                            COUNSEL                                        responsibility and sentenced him to 96 months in prison
                                                                           followed by three years of supervised release. On appeal,
ARGUED:   Paul L. Nelson, FEDERAL PUBLIC                                   Saldivar-Trujillo contends that the district court abused its
DEFENDERS OFFICE, Grand Rapids, Michigan, for                              discretion by denying his request for substitute counsel. For
                                                                           the reasons set forth below, we AFFIRM the judgment of the
                                                                           district court.
    *
     The Honorable Samuel H. Mays, Jr., United States District Judge for
the Western District of Tennessee, sitting by designation.

                                   1
No. 03-1728            United States v. Saldivar-Trujillo       3    4    United States v. Saldivar-Trujillo           No. 03-1728

                     I. BACKGROUND                                   counsel had failed to attend a meeting with Saldivar-Trujillo
                                                                     and the investigator to discuss the objections and had failed
   Saldivar-Trujillo pled guilty on March 18, 2003. Between          to respond to the objections in any way. Saldivar-Trujillo
that date and the date of his sentencing hearing on June 4,          further contended in the letter that he had told defense counsel
2003, he sent the district court four letters regarding the          several times that he was not happy with counsel’s
performance of his court-appointed attorney. The record does         performance and wanted a substitute attorney to represent
not contain copies of the letters, but during the sentencing         him.
hearing the district court provided an oral summary of their
contents. In his first letter to the district court, sent on April     The district court inquired into Saldivar-Trujillo’s
3, 2003, Saldivar-Trujillo stated that “his counsel did not keep     complaints at the sentencing hearing. First the court heard
him informed regarding his case and forced him to plead              from Saldivar-Trujillo, who contested the 16-level sentence
guilty despite his lack of understanding of what he is guilty        increase based on his prior aggravated felony conviction. The
of . . . .” Saldivar-Trujillo sent the court another letter on       court then heard from defense counsel, who explained that he
May 5, 2003, in which he stated that “he told his lawyer and         had walked out of the meeting with Saldivar-Trujillo and the
the probation officer that he was not happy with his                 investigator after he was informed that Saldivar-Trujillo
representation and would like alternative representation”            planned to hire a private defense attorney. Counsel said that
because defense counsel had walked out of a meeting with             he subsequently called the investigator several times to ask
Saldivar-Trujillo and the presentence investigator.                  whether she had heard from the private attorney (who was
                                                                     never in fact hired).
  Five days later, on May 10, 2003, Saldivar-Trujillo sent the
court a third letter stating that                                      Saldivar-Trujillo’s attorney also explained to the district
                                                                     court that he had met with his client in order to discuss the
  he attempted to tell his lawyer he wanted to object to the         Presentence Report. After discussing a majority of the Report
  16 point increase in the offense level which is indicated          with Saldivar-Trujillo, defense counsel terminated the
  in Paragraph 23 of the report. Paragraph 23 provides a             meeting because it “did not go well.” Saldivar-Trujillo
  16 level enhancement on the grounds that under                     thereafter filed his own objections to the Report. Defense
  guidelines 2L1.2(b)(1)(A)(i), the offense level has to be          counsel did not respond to these objections, however, because
  increased by 16 levels because he was convicted of                 he did not agree with them.
  possession with intent to deliver a controlled substance
  in Wisconsin[,] which is an aggravated felony, and he                Defense counsel refused to provide additional information
  was deported after that in 1998.                                   regarding his problems with Saldivar-Trujillo to the district
                                                                     court on the ground that their private conversations were
  Saldivar-Trujillo sent a fourth letter to the court on June 4,     protected by the attorney-client privilege. The district court
2003, the day of the sentencing hearing. In his letter,              then asked for comments by the prosecutor, who argued that
Saldivar-Trujillo claimed that defense counsel had not               Saldivar-Trujillo was not entitled to the appointment of
explained the indictment to him and had tricked him into             substitute counsel.
pleading guilty. The letter also alleged that Saldivar-Trujillo
had prepared his own written objections to the Presentence             After hearing from Saldivar-Trujillo and the attorneys for
Report and sent them to the investigator, but that defense           both sides, the district court denied Saldivar-Trujillo’s
No. 03-1728           United States v. Saldivar-Trujillo          5   6      United States v. Saldivar-Trujillo          No. 03-1728

request. The court first explained that cases from the Sixth                 There is nothing in the record to indicate that the
Circuit required it to consider “the timeliness of the                    defense counsel has not been an effective advocate on
defendant’s motion, whether the conflict between the attorney             behalf of the defendant. Additionally[,] I happen to
and client was so great it resulted in a total lack of                    know defense counsel to be far more than competent as
communication thereby preventing an adequate defense, and                 a lawyer for a person charged with a crime, and I also
whether the accused’s right to counsel of his choice                      know he is a committed advocate if ever an advocate I’ve
outweighs the public interest in the prompt and efficient                 seen.
administration of justice.” Applying these factors, the district
court reasoned as follows:                                                   Finally[,] I have to consider whether the balance
                                                                          weighs in favor of the accused’s right to counsel of his
  The Court was first made aware of defendant’s desire to                 choice or the public’s interest in the prompt and efficient
  substitute his lawyer . . . on April 3rd, two months before             administration of justice. At this stage, the stage of
  his sentencing. That factor weighs in favor of the                      sentencing, [a] guilty plea has been entered, sentencing
  defendant’s request. With respect to the adequacy of the                is under way, the public’s interest in prompt
  communication between defendant and his counsel, it is                  administration of justice is great. Defendant should not
  clear to me from defendant’s letters, if nothing else, and              be permitted to disrupt the judicial system by filing
  what he said today, that there was not a total lack of                  motions for substitution of counsel without good cause.
  communication, in his letter he references attempts to                  In this case, the defendant is represented by more than
  obtain information from his lawyer, he expresses                        adequate counsel. He previously appeared before me [at
  dissatisfaction with the responses he got from his lawyer,              the guilty plea hearing] and affirmed his satisfaction with
  not with the [lack of] opportunity or his [in]ability to talk           counsel, and that is apparent in the transcript[,] and
  to his lawyer or contact his lawyer.                                    willingly entered a plea. I am concerned that his motion
                                                                          is an attempt to delay his sentence and not a legitimate
     Furthermore, I find that he willingly and knowingly                  motion for substitute counsel. In any event, he has failed
  entered a plea on the charges he now claims not to                      to show good cause for me to substitute counsel, and I
  understand, that’s clear from the transcript and from his               find the public interest[] in the prompt and efficient
  letter to me. . . .                                                     administration of justice outweighs his right to counsel
                                                                          of his choice. Therefore, his letter motions and his oral
    [He] argued that his lawyer’s failure to object to                    motion to substitute counsel is denied.
  certain items in the [Presentence Report] make[s] his
  counsel inadequate, specifically he is concerned about                In addition to discussing his representation of Saldivar-
  the 16 level increase in the offense level as a result of           Trujillo, defense counsel argued at the sentencing hearing that
  having been deported after a criminal conviction for an             the district court should reduce his client’s sentence for
  aggravated felony. As a matter of law I find defense                acceptance of responsibility. The prosecutor agreed that a
  counsel has absolutely no basis to object to that increase,         three-level reduction was appropriate, and the court
  and such an objection would be frivolous. According to              accordingly reduced Saldivar-Trujillo’s offense level by that
  Guidelines 2L1.2(b)(1)(A)(i), his base offense level is             amount.
  properly increased 16 levels.
No. 03-1728           United States v. Saldivar-Trujillo       7   8      United States v. Saldivar-Trujillo          No. 03-1728

                       II. ANALYSIS                                   Granting Saldivar-Trujillo’s request for substitute counsel,
                                                                   moreover, would actually have impeded the efficient
A. Standard of review                                              administration of justice because his complaints about his
                                                                   attorney’s performance were frivolous. Saldivar-Trujillo’s
   “An indigent defendant has no right to have a particular        essential grievance was that his attorney would not object to
attorney represent him and therefore must demonstrate ‘good        the 16-level enhancement based upon his prior aggravated
cause’ to warrant substitution of counsel.” United States v.       felony conviction. As the government points out in its brief,
Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). We will reverse a       however,
district court’s decision regarding an indigent defendant’s
motion for substitute counsel only if the district court has           Defendant’s complaint stemmed from an apparent
abused its discretion. Id. at 1130 n.8. In order to decide             misunderstanding of the law.           The Defendant
whether a district court has abused its discretion, we must            misconstrued the legal significance of his prior drug
consider                                                               conviction and removal. The district court properly held
                                                                       that it was not necessary for the conviction to state
  the timeliness of the motion; the adequacy of the court’s            “aggravated” and it was not necessary for the removal to
  inquiry into the defendant’s complaint; and whether the              be as a result of his conviction.
  conflict between the attorney and client was so great that
  it resulted in a total lack of communication preventing an          Any objection by defense counsel to this 16-level increase
  adequate defense. . . . Further, [c]onsideration of such         would therefore have been frivolous, and the district court
  motions requires a balancing of the accused’s right to           properly refused Saldivar-Trujillo’s request to appoint
  counsel of his choice and the public’s interest in the           substitute counsel who would make such an argument. As for
  prompt and efficient administration of justice.                  Saldivar-Trujillo’s allegation that defense counsel had not
                                                                   explained the indictment to him and had tricked him into
Id. (citations and quotation marks omitted).                       pleading guilty, the district court correctly concluded that the
                                                                   transcript of the guilty plea hearing demonstrated that
B. The district court did not abuse its discretion by              Saldivar-Trujillo fully understood the elements of the offense.
   denying Saldivar-Trujillo’s motion for substitute
   counsel                                                           The only potential harm to Saldivar-Trujillo’s interests
                                                                   occurred when defense counsel walked out of the meeting
  Saldivar-Trujillo’s request for substitute counsel was timely    with the presentence investigator. Because the attorney left,
because he wrote his first letter to the judge a full two months   the investigator was unable to determine whether Saldivar-
before the sentencing hearing. But all of the other Iles factors   Trujillo had accepted responsibility for his actions, thereby
weigh against the granting of his request. The district court      entitling him to a sentence reduction. But defense counsel
properly concluded “that there was not a total lack of             remedied this potential harm to Saldivar-Trujillo by
communication” because “in his letter he references attempts       successfully arguing at the sentencing hearing for the three-
to obtain information from his lawyer, he expresses                level reduction. Defense counsel’s actions at the meeting
dissatisfaction with the responses he got from his lawyer, not     therefore did not constitute good cause for the district court to
with the [lack of] opportunity or his [in]ability to talk to his   grant Saldivar-Trujillo substitute counsel.
lawyer or contact his lawyer.”
No. 03-1728           United States v. Saldivar-Trujillo       9    10   United States v. Saldivar-Trujillo         No. 03-1728

  The only Iles factor that the district court did not consider,    based solely upon the facts admitted by Saldivar-Trujillo as
because it was not in a position to do so, is “the adequacy of      part of his guilty plea. Blakely therefore does not affect the
the court’s inquiry into the defendant’s complaint . . . .” 906     validity of his sentence. See United States v. Lucca, No.
F.2d at 1130 n.8. This is for us to decide. Our review of the       03-2859, 2004 WL 1698784, at *6 (8th Cir. July 30, 2004)
sentencing hearing shows that the district court summarized         (holding that Blakely was not implicated where the defendant
the contents of Saldivar-Trujillo’s letters and allowed             was sentenced based solely upon the facts admitted as part of
Saldivar-Trujillo, his defense counsel, and the prosecutor the      his guilty plea).
opportunity to address the complaint at issue. We conclude
that this inquiry was adequate because it allowed all of the                           III. CONCLUSION
interested parties to present their respective evidence and
arguments.                                                            For all of the reasons set forth above, we AFFIRM the
                                                                    judgment of the district court.
   The district court correctly determined “that there was not
a total lack of communication” between Saldivar-Trujillo and
his attorney, that Saldivar-Trujillo was not prejudiced in any
way by his attorney’s performance, and that Saldivar-
Trujillo’s right to the counsel of his choice was outweighed
by the public interest in the prompt and efficient
administration of justice. Because Saldivar-Trujillo did not
demonstrate good cause to warrant the substitution of
counsel, the district court’s denial of his request was not an
abuse of discretion.
C. Legality of the sentence under Blakely v. Washington
   Saldivar-Trujillo’s final contention is that his sentence
should be vacated pursuant to Blakely v. Washington, __ U.S.
__, 124 S. Ct. 2351 (2004), where the Supreme Court struck
down a Washington-state sentencing proceeding in which the
judge imposed punishment that the jury’s verdict alone did
not allow. But even if we were to assume for the sake of
argument that Blakely applies to cases involving the United
States Sentencing Guidelines (an issue very much in dispute
at the present time), the Supreme Court’s decision would not
require us to vacate Saldivar-Trujillo’s sentence. The Blakely
Court explained that a sentence may be imposed by a judge if
it is based solely on the “facts reflected in the jury verdict or
admitted by the defendant.” __ U.S. at __, 124 S.Ct. at 2537
(emphasis in original). The sentence in the present case was
