United States of America v. Martin Saldivar-Trujillo

*The Honorable Samuel H. Mays, Jr., United States District Judge for
the Western District of Tennessee, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0281P (6th Cir.)
File Name: 04a0281p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTIN SALDIVAR-TRUJILLO,
Defendant-Appellant.
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No. 03-1728
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00213—Richard A. Enslen, District Judge.
Argued: July 8, 2004
Decided and Filed: August 26, 2004
Before: KRUPANSKY and GILMAN, Circuit Judges;
MAYS, District Judge.*
_________________
COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
2 United States v. Saldivar-Trujillo No. 03-1728
Appellant. Daniel Y. Mekaru, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
Appellant. Daniel Y. Mekaru, ASSISTANT UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Martin Saldivar-
Trujillo, a convicted felon who had previously been deported
as an illegal alien, pled guilty to one count of again being
present in the United States without authorization. His
renewed presence violated 8 U.S.C. § 1326(a) and (b)(2). The
prior aggravated felony occurred in Wisconsin, where
Saldivar-Trujillo was convicted of possessing marijuana with
the intent to deliver. After he pled guilty, but before the
sentencing hearing, Saldivar-Trujillo sent four letters to the
district court expressing his unhappiness with his court-
appointed attorney and requesting that the court appoint new
counsel.
At the sentencing hearing, the district court denied
Saldivar-Trujillo’s request for substitute counsel after hearing
from both Saldivar-Trujillo and his defense counsel about the
issue. The district court subsequently granted Saldivar-
Trujillo a three-level sentence reduction for acceptance of
responsibility and sentenced him to 96 months in prison
followed by three years of supervised release. On appeal,
Saldivar-Trujillo contends that the district court abused its
discretion by denying his request for substitute counsel. For
the reasons set forth below, we AFFIRM the judgment of the
district court.

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No. 03-1728 United States v. Saldivar-Trujillo 3
I. BACKGROUND
Saldivar-Trujillo pled guilty on March 18, 2003. Between
that date and the date of his sentencing hearing on June 4,
2003, he sent the district court four letters regarding the
performance of his court-appointed attorney. The record does
not contain copies of the letters, but during the sentencing
hearing the district court provided an oral summary of their
contents. In his first letter to the district court, sent on April
3, 2003, Saldivar-Trujillo stated that “his counsel did not keep
him informed regarding his case and forced him to plead
guilty despite his lack of understanding of what he is guilty
of . . . .” Saldivar-Trujillo sent the court another letter on
May 5, 2003, in which he stated that “he told his lawyer and
the probation officer that he was not happy with his
representation and would like alternative representation”
because defense counsel had walked out of a meeting with
Saldivar-Trujillo and the presentence investigator.
Five days later, on May 10, 2003, Saldivar-Trujillo sent the
court a third letter stating that
he attempted to tell his lawyer he wanted to object to the
16 point increase in the offense level which is indicated
in Paragraph 23 of the report. Paragraph 23 provides a
16 level enhancement on the grounds that under
guidelines 2L1.2(b)(1)(A)(i), the offense level has to be
increased by 16 levels because he was convicted of
possession with intent to deliver a controlled substance
in Wisconsin[,] which is an aggravated felony, and he
was deported after that in 1998.
Saldivar-Trujillo sent a fourth letter to the court on June 4,
2003, the day of the sentencing hearing. In his letter,
Saldivar-Trujillo claimed that defense counsel had not
explained the indictment to him and had tricked him into
pleading guilty. The letter also alleged that Saldivar-Trujillo
had prepared his own written objections to the Presentence
Report and sent them to the investigator, but that defense
4 United States v. Saldivar-Trujillo No. 03-1728
counsel had failed to attend a meeting with Saldivar-Trujillo
and the investigator to discuss the objections and had failed
to respond to the objections in any way. Saldivar-Trujillo
further contended in the letter that he had told defense counsel
several times that he was not happy with counsel’s
performance and wanted a substitute attorney to represent
him.
The district court inquired into Saldivar-Trujillo’s
complaints at the sentencing hearing. First the court heard
from Saldivar-Trujillo, who contested the 16-level sentence
increase based on his prior aggravated felony conviction. The
court then heard from defense counsel, who explained that he
had walked out of the meeting with Saldivar-Trujillo and the
investigator after he was informed that Saldivar-Trujillo
planned to hire a private defense attorney. Counsel said that
he subsequently called the investigator several times to ask
whether she had heard from the private attorney (who was
never in fact hired).
Saldivar-Trujillo’s attorney also explained to the district
court that he had met with his client in order to discuss the
Presentence Report. After discussing a majority of the Report
with Saldivar-Trujillo, defense counsel terminated the
meeting because it “did not go well.” Saldivar-Trujillo
thereafter filed his own objections to the Report. Defense
counsel did not respond to these objections, however, because
he did not agree with them.
Defense counsel refused to provide additional information
regarding his problems with Saldivar-Trujillo to the district
court on the ground that their private conversations were
protected by the attorney-client privilege. The district court
then asked for comments by the prosecutor, who argued that
Saldivar-Trujillo was not entitled to the appointment of
substitute counsel.
After hearing from Saldivar-Trujillo and the attorneys for
both sides, the district court denied Saldivar-Trujillo’s

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No. 03-1728 United States v. Saldivar-Trujillo 5
request. The court first explained that cases from the Sixth
Circuit required it to consider “the timeliness of the
defendant’s motion, whether the conflict between the attorney
and client was so great it resulted in a total lack of
communication thereby preventing an adequate defense, and
whether the accused’s right to counsel of his choice
outweighs the public interest in the prompt and efficient
administration of justice.” Applying these factors, the district
court reasoned as follows:
The Court was first made aware of defendant’s desire to
substitute his lawyer . . . on April 3rd, two months before
his sentencing. That factor weighs in favor of the
defendant’s request. With respect to the adequacy of the
communication between defendant and his counsel, it is
clear to me from defendant’s letters, if nothing else, and
what he said today, that there was not a total lack of
communication, in his letter he references attempts to
obtain information from his lawyer, he expresses
dissatisfaction with the responses he got from his lawyer,
not with the [lack of] opportunity or his [in]ability to talk
to his lawyer or contact his lawyer.
Furthermore, I find that he willingly and knowingly
entered a plea on the charges he now claims not to
understand, that’s clear from the transcript and from his
letter to me. . . .
[He] argued that his lawyer’s failure to object to
certain items in the [Presentence Report] make[s] his
counsel inadequate, specifically he is concerned about
the 16 level increase in the offense level as a result of
having been deported after a criminal conviction for an
aggravated felony. As a matter of law I find defense
counsel has absolutely no basis to object to that increase,
and such an objection would be frivolous. According to
Guidelines 2L1.2(b)(1)(A)(i), his base offense level is
properly increased 16 levels.
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There is nothing in the record to indicate that the
defense counsel has not been an effective advocate on
behalf of the defendant. Additionally[,] I happen to
know defense counsel to be far more than competent as
a lawyer for a person charged with a crime, and I also
know he is a committed advocate if ever an advocate I’ve
seen.
Finally[,] I have to consider whether the balance
weighs in favor of the accused’s right to counsel of his
choice or the public’s interest in the prompt and efficient
administration of justice. At this stage, the stage of
sentencing, [a] guilty plea has been entered, sentencing
is under way, the public’s interest in prompt
administration of justice is great. Defendant should not
be permitted to disrupt the judicial system by filing
motions for substitution of counsel without good cause.
In this case, the defendant is represented by more than
adequate counsel. He previously appeared before me [at
the guilty plea hearing] and affirmed his satisfaction with
counsel, and that is apparent in the transcript[,] and
willingly entered a plea. I am concerned that his motion
is an attempt to delay his sentence and not a legitimate
motion for substitute counsel. In any event, he has failed
to show good cause for me to substitute counsel, and I
find the public interest[] in the prompt and efficient
administration of justice outweighs his right to counsel
of his choice. Therefore, his letter motions and his oral
motion to substitute counsel is denied.
In addition to discussing his representation of Saldivar-
Trujillo, defense counsel argued at the sentencing hearing that
the district court should reduce his client’s sentence for
acceptance of responsibility. The prosecutor agreed that a
three-level reduction was appropriate, and the court
accordingly reduced Saldivar-Trujillo’s offense level by that
amount.

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No. 03-1728 United States v. Saldivar-Trujillo 7
II. ANALYSIS
A. Standard of review
“An indigent defendant has no right to have a particular
attorney represent him and therefore must demonstrate ‘good
cause’ to warrant substitution of counsel.” United States v.
Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). We will reverse a
district court’s decision regarding an indigent defendant’s
motion for substitute counsel only if the district court has
abused its discretion. Id. at 1130 n.8. In order to decide
whether a district court has abused its discretion, we must
consider
the timeliness of the motion; the adequacy of the court’s
inquiry into the defendant’s complaint; and whether the
conflict between the attorney and client was so great that
it resulted in a total lack of communication preventing an
adequate defense. . . . Further, [c]onsideration of such
motions requires a balancing of the accused’s right to
counsel of his choice and the public’s interest in the
prompt and efficient administration of justice.
Id. (citations and quotation marks omitted).
B. The district court did not abuse its discretion by
denying Saldivar-Trujillo’s motion for substitute
counsel
Saldivar-Trujillo’s request for substitute counsel was timely
because he wrote his first letter to the judge a full two months
before the sentencing hearing. But all of the other Iles factors
weigh against the granting of his request. The district court
properly concluded “that there was not a total lack of
communication” because “in his letter he references attempts
to obtain information from his lawyer, he expresses
dissatisfaction with the responses he got from his lawyer, not
with the [lack of] opportunity or his [in]ability to talk to his
lawyer or contact his lawyer.”
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Granting Saldivar-Trujillo’s request for substitute counsel,
moreover, would actually have impeded the efficient
administration of justice because his complaints about his
attorney’s performance were frivolous. Saldivar-Trujillo’s
essential grievance was that his attorney would not object to
the 16-level enhancement based upon his prior aggravated
felony conviction. As the government points out in its brief,
however,
Defendant’s complaint stemmed from an apparent
misunderstanding of the law. The Defendant
misconstrued the legal significance of his prior drug
conviction and removal. The district court properly held
that it was not necessary for the conviction to state
“aggravated” and it was not necessary for the removal to
be as a result of his conviction.
Any objection by defense counsel to this 16-level increase
would therefore have been frivolous, and the district court
properly refused Saldivar-Trujillo’s request to appoint
substitute counsel who would make such an argument. As for
Saldivar-Trujillo’s allegation that defense counsel had not
explained the indictment to him and had tricked him into
pleading guilty, the district court correctly concluded that the
transcript of the guilty plea hearing demonstrated that
Saldivar-Trujillo fully understood the elements of the offense.
The only potential harm to Saldivar-Trujillo’s interests
occurred when defense counsel walked out of the meeting
with the presentence investigator. Because the attorney left,
the investigator was unable to determine whether Saldivar-
Trujillo had accepted responsibility for his actions, thereby
entitling him to a sentence reduction. But defense counsel
remedied this potential harm to Saldivar-Trujillo by
successfully arguing at the sentencing hearing for the three-
level reduction. Defense counsel’s actions at the meeting
therefore did not constitute good cause for the district court to
grant Saldivar-Trujillo substitute counsel.

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No. 03-1728 United States v. Saldivar-Trujillo 9
The only Iles factor that the district court did not consider,
because it was not in a position to do so, is “the adequacy of
the court’s inquiry into the defendant’s complaint . . . .” 906
F.2d at 1130 n.8. This is for us to decide. Our review of the
sentencing hearing shows that the district court summarized
the contents of Saldivar-Trujillo’s letters and allowed
Saldivar-Trujillo, his defense counsel, and the prosecutor the
opportunity to address the complaint at issue. We conclude
that this inquiry was adequate because it allowed all of the
interested parties to present their respective evidence and
arguments.
The district court correctly determined “that there was not
a total lack of communication” between Saldivar-Trujillo and
his attorney, that Saldivar-Trujillo was not prejudiced in any
way by his attorney’s performance, and that Saldivar-
Trujillo’s right to the counsel of his choice was outweighed
by the public interest in the prompt and efficient
administration of justice. Because Saldivar-Trujillo did not
demonstrate good cause to warrant the substitution of
counsel, the district court’s denial of his request was not an
abuse of discretion.
C. Legality of the sentence under Blakely v. Washington
Saldivar-Trujillo’s final contention is that his sentence
should be vacated pursuant to Blakely v. Washington, __ U.S.
__, 124 S. Ct. 2351 (2004), where the Supreme Court struck
down a Washington-state sentencing proceeding in which the
judge imposed punishment that the jury’s verdict alone did
not allow. But even if we were to assume for the sake of
argument that Blakely applies to cases involving the United
States Sentencing Guidelines (an issue very much in dispute
at the present time), the Supreme Court’s decision would not
require us to vacate Saldivar-Trujillo’s sentence. The Blakely
Court explained that a sentence may be imposed by a judge if
it is based solely on the “facts reflected in the jury verdict or
admitted by the defendant.” __ U.S. at __, 124 S.Ct. at 2537
(emphasis in original). The sentence in the present case was
10 United States v. Saldivar-Trujillo No. 03-1728
based solely upon the facts admitted by Saldivar-Trujillo as
part of his guilty plea. Blakely therefore does not affect the
validity of his sentence. See United States v. Lucca, No.
03-2859, 2004 WL 1698784, at *6 (8th Cir. July 30, 2004)
(holding that Blakely was not implicated where the defendant
was sentenced based solely upon the facts admitted as part of
his guilty plea).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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