United States v. Otero-Soto, 042908 FED09, 07-10165

Docket Nº:07-10165
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERASMO OTERO-SOTO, Defendant - Appellant.
Judge Panel:Before: KOZINSKI, Chief Judge, GOULD and N.R. SMITH, Circuit Judges.
Case Date:April 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

ERASMO OTERO-SOTO, Defendant - Appellant.

No. 07-10165

United States Court of Appeals, Ninth Circuit

April 29, 2008

NOT FOR PUBLICATION

Argued and Submitted April 15, 2008 San Francisco, California

Appeal from the United States District Court for the District of Arizona D.C. No. CR-06-00133-SRB Susan R. Bolton, District Judge, Presiding

Before: KOZINSKI, Chief Judge, GOULD and N.R. SMITH, Circuit Judges.

MEMORANDUM[*]

Erasmo Otero-Soto (“Otero-Soto”) appeals both his jury conviction and sentencing for possession with intent to distribute methamphetamine, cocaine, cocaine base, and marijuana; for conspiracy to possess each of these drugs with intent to distribute; and for use of a firearm during and in relation to the individual drug trafficking offenses. We have jurisdiction under 28 U.S.C. § 1291, and we affirm .1

Otero-Soto argues that his convictions should be reversed because, on the eve of trial, the district court did not investigate a continuing conflict between Otero-Soto and his first appointed attorney. We review the denial of a request for new appointed counsel for abuse of discretion. See United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir. 2000). The district court did not abuse its discretion because (1) it had already held a hearing addressing Otero-Soto’s concerns with his attorney; (2) Otero-Soto did not request a new attorney at the beginning of trial; and (3) the attorney’s remark did not raise any new issues that the court had not already addressed.

Otero-Soto also argues that his conviction for the firearm charge must be overturned because of an infirm jury instruction on that count. Because Otero-Soto did not object to the jury instruction at trial, we review for plain error. See United States v. Lopez, 477 F.3d 1110, 1113 (9th Cir. 2007). We may exercise our discretion to grant relief if (1) there was error; (2) the error was plain; (3) the error affected substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Perez, 116 F.3d 840, 846 (9th Cir. 1997) (en banc). Even if there was error and it was plain, it did not affect substantial rights and did not seriously affect the fairness, integrity or public reputation of judicial proceedings. Otero-Soto was convicted of each...

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