United States of America v. Billy Joe Palomo

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY JOE PALOMO,
Defendant - Appellant.
No. 09-10510
D.C. No. 1:08-cr-00055-FMTG-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Argued and Submitted October 11, 2011
Honolulu, Hawaii
Before: O’SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.
Billy Joe Palomo appeals the district court’s order entering judgment on his
guilty plea, the district court’s denial of his motion for substitution of counsel, and
FILED
OCT 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Because the parties are familiar with the facts, we repeat them here only as
necessary to explain our decision.
2
his ten year sentence under 21 U.S.C. § 841(b)(viii) (2006). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.1
Palomo pled guilty to conspiracy to possess with intent to distribute over 50
grams of methamphetamine. 21 U.S.C. § 841(b)(viii) (2006). The district court
did not err in accepting and entering judgment on the plea as knowing and
voluntary.
The magistrate judge adequately satisfied Rule 11 by informing the
defendant of and determining that the defendant understood “any mandatory
minimum penalty.” Fed. R. Crim. P. 11(b)(1)(I). During Palomo’s plea colloquy,
the magistrate judge announced the mandatory minimum ten year sentence in open
court while directly addressing Palomo, who had the identical language before him
in a written plea agreement in which he had acknowledged the same penalty by his
signature. There was no error.
There was also a sufficient factual basis for the plea. Fed. R. Crim. P.
11(b)(3). The district court properly considered the facts recited in the plea
agreement and contained within the presentence report to which Palomo made no

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objection. See United States v. Reyna-Tapia, 328 F.3d 1114, 1120 n.5 (9th Cir.
2003).
The district court also did not abuse its discretion in denying Palomo’s
motion for substitution of counsel. The court conducted an adequate inquiry on the
record and properly concluded that Palomo’s purported conflict with his counsel
was too narrow to justify substitution, finding that there had been no irreconcilable
breakdown in attorney-client communications. See United States v. Nguyen, 262
F.3d 998, 1004 (9th Cir. 2001).
Finally, Palomo’s sentence did not implicate Apprendi v. New Jersey, 530
U.S. 466 (2000). Apprendi requires the government to prove beyond a reasonable
doubt any fact, other than a prior conviction, that exposes the defendant to a greater
punishment than that authorized by the guilty verdict or plea. Id. at 489. Palomo
pled guilty to all elements of the crime charged, including the specific quantity of
methamphetamine: “more than 50 grams.” See United States v. Banuelos, 322
F.3d 700, 705 (9th Cir. 2003). Because Palomo expressly admitted the
methamphetamine quantity as charged in the indictment beyond a reasonable doubt
through his plea, the court was not required to make any further evidentiary
determination at sentencing that could have triggered Apprendi.
AFFIRMED.

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