United States v. Don White ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10539
Plaintiff-Appellee, D.C. No.
2:15-cr-00144-KJD-PAL-1
v.
DON EUGENE WHITE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted July 11, 2018
San Francisco, California
Before: TASHIMA, GRABER, and HURWITZ, Circuit Judges.
Don Eugene White appeals his conviction and sentence for possession of a
firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
We affirm the conviction but vacate the sentence and remand for resentencing.
1. The district court did not err in denying White’s suppression motion.
“[T]he Fourth Amendment requires only reasonable suspicion in the context of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
investigative traffic stops.” United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th
Cir. 2000). Police officers had reasonable suspicion to detain White’s vehicle
because a record check performed before the stop revealed a parole or probation
violation warrant associated with the car.
2. The warrantless search of the vehicle was also reasonable. “If a car is
readily mobile and probable cause exists to believe it contains contraband, the Fourth
Amendment . . . permits police to search the vehicle without more.” Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996) (per curiam). The smell of marijuana emanating
from the vehicle provided probable cause. See United States v. Kerr, 876 F.2d 1440,
1445 (9th Cir. 1989) (“[T]he presence of the odor of contraband may itself be
sufficient to establish probable cause.”); see also United States v. Guzman-Padilla,
573 F.3d 865, 886 n.5 (9th Cir. 2009) (“It is undisputed that probable cause to
conduct a full-scale search arose at the latest when the agents encountered the smell
of unburned marijuana emanating from the vehicle.”); United States v. Garcia-
Rodriguez, 558 F.2d 956, 964 (9th Cir. 1977) (“The detection of marijuana odor
emanating from a vehicle has been held sufficient in such situations to give rise to
probable cause to search.”). White argues that there was no probable cause because
Nevada had legalized medical marijuana at the time of the search, see Nev. Rev.
Stat. § 453A.200, and he had a medical marijuana card. But, White never explained
this to the investigating officers, and possession of nonmedical marijuana was then
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still a state crime.
3. The district court did not abuse its discretion in denying White’s repeated
motions to substitute counsel for a second time and second counsel’s motions to
withdraw. See United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2005) (noting
standard of review). To evaluate whether a district court abused its discretion in
denying a motion to substitute counsel, “we consider three factors: (1) the adequacy
of the district court’s inquiry; (2) the extent of the conflict between the defendant
and counsel; and (3) the timeliness of defendant’s motion.” United States v. Reyes-
Bosque, 596 F.3d 1017, 1033 (9th Cir. 2010).
The district court held multiple hearings and questioned both White and his
counsel extensively about their purported disagreements. See Daniels v. Woodford,
428 F.3d 1181, 1200 (9th Cir. 2005). The court did not abuse its discretion in
denying the motions, as the record does not compel the conclusion that there was “a
significant breakdown in communication that substantially interfered with the
attorney-client relationship.” United States v. Adelzo-Gonzalez, 268 F.3d 772, 779
(9th Cir. 2001). Indeed, many of White’s initial complaints about second counsel
were resolved by the court. And, White’s final requests for substitution were made
less than a month before trial, after the court had already granted several trial
continuances. “It is within the trial judge’s discretion to deny a motion to substitute
made during or on the eve of trial if the substitution would require a continuance.”
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United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).
4. The district court applied a sentencing enhancement under U.S.S.G.
§ 2K2.1(a)(2), determining that White had two prior convictions for “crimes of
violence” because he had been convicted of: (1) conspiracy to commit robbery, Nev.
Rev. Stat. §§ 199.480 & 200.380; (2) robbery with a deadly weapon, id. §§ 193.165
& 200.380; and (3) assault with a deadly weapon, id. § 200.471. Subsequent to
White’s sentencing, we held that robbery under Nev. Rev. Stat. § 200.380 is not a
crime of violence under § 2K2.1(a)(2). United States v. Edling, No. 16-10457, 2018
WL 3387366, at *3–5 (9th Cir. July 12, 2018), as amended. We therefore vacate
White’s sentence and remand for resentencing in light of Edling. See, e.g., United
States v. Cooper, No. 16-10413, 2018 WL 3322239, at *1–2 (9th Cir. July 6, 2018)
(unpublished) (holding that robbery with a deadly weapon in violation of Nev. Rev.
Stat. §§ 193.165 and 200.380 does not qualify as a “violent felony” under the Armed
Career Criminal Act); United States v. Bell, No. 16-10416, 2018 WL 3195673, at *1
(9th Cir. June 29, 2018) (unpublished) (vacating and remanding in light of Edling
when the district court had found that Bell’s conviction for robbery with a deadly
weapon in violation of Nev. Rev. Stat. §§ 193.165 and 200.380 qualified as a “crime
of violence” under the Guidelines).
CONVICTION AFFIRMED, SENTENCE VACATED, and
REMANDED.
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