NOT FOR PUBLICATION                           FILED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, 

, 980 (9th Cir. 2010);

accord United States v. Brown, 

, 1340 (9th Cir. 2015). It was

apparent that Sanchez-Espinosa “instigated the withdrawal motion,” 

, 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. 

; 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


. As a result of these errors, the district court violated

Sanchez-Espinosa’s Sixth Amendment right to counsel of choice. See Rivera-

; 

.

      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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