NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-30247

Plaintiff-Appellee, D.C. No.

1:15-cr-00130-EJL-1 v. MARCELO OMAR SANCHEZ- MEMORANDUM* ESPINOSA, AKA Omar,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted December 9, 2019

Seattle, Washington Before: GRABER, BERZON, and HIGGINSON,** Circuit Judges.

Marcelo Sanchez-Espinosa appeals the sentence imposed following his guilty plea to conspiracy to possess with intent to distribute methamphetamine in

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. violation of 21 U.S.C § 841(a)(1) and (b)(1)(A). We vacate the sentence and remand for resentencing.

The district court’s denial of Mendoza’s initial motion to withdraw relied on an incorrect legal standard and violated Sanchez-Espinosa’s Sixth Amendment right to counsel of choice.1 Because Sanchez-Espinosa hired Mendoza, Sanchez- Espinosa had a qualified constitutional right to discharge him “for any reason or no reason.” United States v. Rivera-Corona, 618 F.3d 976, 980 (9th Cir. 2010); accord United States v. Brown, 785 F.3d 1337, 1340 (9th Cir. 2015). It was apparent that Sanchez-Espinosa “instigated the withdrawal motion,” Brown, 785 F.3d at 1347, as Mendoza made the initial motion to withdraw “at my client’s behest.” The district court understood the motion to be Sanchez-Espinosa’s request to substitute counsel.

When it ruled on the motion to withdraw, the district court did not recognize that Mendoza was retained. The court’s written order misidentified Sanchez- Espinosa as “an indigent defendant request[ing] new court-appointed counsel in place of an existing appointed attorney.” The court then incorrectly applied “extent-of-conflict” review, the standard used when a defendant seeks to substitute appointed counsel for appointed counsel. Rivera-Corona, 618 F.3d at 979; see

1. We review for abuse of discretion because Sanchez-Espinosa does not raise the issue of substitution of counsel for the first time on appeal.

2 Brown, 785 F.3d at 1343. As a result of these errors, the district court violated Sanchez-Espinosa’s Sixth Amendment right to counsel of choice. See Rivera- Corona, 618 F.3d at 979; Brown, 785 F.3d at 1344.

We vacate and remand for resentencing only. Our disposition does not disturb Sanchez-Espinosa’s conviction, as the district court received and ruled on his request to substitute counsel more than one month after his guilty plea was accepted as final.

VACATED and REMANDED.

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