                                                                           FILED
                           NOT FOR PUBLICATION                             APR 14 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50396

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00322-R-1

  v.
                                                 MEMORANDUM*
DASHON LAVAR RICHARDSON, AKA
Capone, AKA J, AKA Jay,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                             Submitted April 9, 2014**
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Dashon Richardson appeals the district court’s order denying his motion for

appointment of counsel in connection with his motion for a reduction of his

sentence pursuant to 18 U.S.C. § 3582(c)(2). We affirm the district court’s ruling.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      “[T]he Supreme Court has held . . . that the constitutional right to counsel

extends only through the defendant’s first appeal. After that, the decision whether

to appoint counsel rests in the discretion of the district court.” United States v.

Townsend, 98 F.3d 510, 513 (9th Cir. 1996) (quoting United States v. Whitebird,

55 F.3d 1007, 1011 (5th Cir. 1995)). Accordingly, Richardson is not entitled to

counsel under the Sixth Amendment. Id. at 512–13.

      Nor is Richardson entitled to counsel under the Due Process Clause. The

right to counsel in post-conviction proceedings, even those which touch on a

significant liberty interest, is considered on a “case-by-case” basis, taking into

consideration “the peculiarities of particular cases.” Gagnon v. Scarpelli, 411 U.S.

778, 788–89 (1973). Richardson’s particular circumstances, however, “presented

no specially troublesome points of law, either procedural or substantive.” Lassiter

v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 32 (1981).

      All of the arguments Richardson claims he could have presented with the

benefit of counsel have either been squarely rejected or severely undermined. See

United States v. Davis, 739 F.3d 1222, 1225–26 (9th Cir. 2014) (Separation of

Powers argument); Peugh v. United States, 133 S. Ct. 2072 (2013) and United

States v. Johns, 5 F.3d 1267 (9th Cir. 1993) (Ex Post Facto Clause argument);

United States v. Pleasant, 704 F.3d 808, 811 (9th Cir. 2013), cert denied, 134 S.


                                           2
Ct. 824 (2013) (interpreting Freeman v. United States, 131 S. Ct. 2685 (2011));

United States v. Tercero, 734 F.3d 979, 981–84 (9th Cir. 2013) (rejecting argument

that U.S.S.G. § 1B1.10 conflicts with the Fair Sentencing Act and holding that

Administrative Procedure Act’s arbitrary and capricious standard did not apply to

promulgation of § 1B1.10). Accordingly, the district court’s decision not to

appoint counsel for Richardson did not violate his Due Process rights.

      Richardson also contends that the district court was unaware that it had the

discretion to appoint counsel, and he asks us to remand his case for further

consideration. Absent a contrary indication, we “assume that the district court

knows and applies the law correctly” when it has the power to make discretionary

rulings. See, e.g., United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.

1991). The district court’s order, which noted that Richardson was not “entitled to

appointed counsel,” does not indicate that the district court failed to appreciate its

power to appoint counsel.

      AFFIRMED.




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