United States v. Ervin Osorio , 587 F. App'x 388 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30266
Plaintiff - Appellee, D.C. No. 6:13-cr-00007-SEH-1
v.
MEMORANDUM*
ERVIN SALGADO OSORIO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted October 9, 2014
Portland, Oregon
Before: FISHER, CHRISTEN, and NGUYEN, Circuit Judges.
Ervin Osorio appeals his conviction for conspiracy to distribute and
distribution of 50 grams or more of methamphetamine in violation of 21 U.S.C. §§
846 and 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court abused its discretion by denying Osorio’s motion for a 45-
day continuance so that he could retain and proceed to trial with his counsel of
choice. See United States v. Nguyen, 262 F.3d 998, 1003 (9th Cir. 2001) (“[A]n
‘unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the assistance of counsel.’”
(quoting Morris v. Slappy, 461 U.S. 1, 11–12 (1983)) (internal quotation marks
omitted)). Although the motion was filed after the motions deadline, it was not
untimely under the circumstances of this case. It was filed almost immediately
after Osorio learned that his co-defendants had changed their pleas and would be
testifying against him. Additionally, Osorio had made his initial appearance less
than two months prior to the date of the motion, and he had not previously
requested any continuances.
Osorio’s appointed attorney informed the district court that Osorio’s family
had the funds to retain attorney Roger Peven. Osorio’s attorney also told the court
he had spoken with Mr. Peven, and Mr. Peven had indicated he was willing to take
the case but would need a continuance of the trial date.
The government did not argue that the requested continuance would
inconvenience its attorneys or witnesses. And the district court did not find that
there would be any inconvenience to prospective jurors, nor did it explain how the
2
continuance would inconvenience the court. “We have previously criticized a trial
judge who seemed ‘above all to be determined not to disturb [the court’s] trial
schedule.’” Nguyen, 262 F.3d at 1003 (alteration in original) (quoting United
States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998)). Although we are sensitive
to the need of district judges to manage their workloads, under the circumstances
of this case we conclude that the district court’s insistence upon expeditiousness
wrongfully infringed Osorio’s Sixth Amendment right to counsel of choice. We
therefore reverse Osorio’s conviction and remand for a new trial. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 150–51 (2006) (explaining erroneous
deprivation of right to counsel of choice is structural error).1
REVERSED AND REMANDED.
1
Because we conclude reversal is warranted based on the district
court’s denial of Osorio’s motion to continue, we do not reach Osorio’s arguments
concerning Agent Poteet’s testimony or the reasonableness of his sentence.
3