sentencing error at the very least but it also means an error occurred during the prior deportation the court should remain for the judge to apply the correct standard second the government's concession of rule seven zero four error also demands reversal since it fails to show the evidence was anything but close in a case hinting ultimately on dueling experts the simplest matter is the sentencing err where the court applied a plus eight for an aggravated felony send it back are we sentencing that's correct or are the courts should at least apply the correct guidelines calculation plus for didn't judge burns decide this one of the alternative well he said that he would go as you know he's not offhand is it he says this is a guy who has this degree of past dangerousness and why i believe that even if i took the alternative that the guidelines were this which are now the right guidelines according to you i would give this sentence i mean isn't it i mean with the i've seen lots of cases words in big us that this is pretty straightforward belt and suspenders as well your honor the very most that george burns said at the time that he was in each when he made that comment was he said well he came back within six months well we see people coming back a lot quicker than six months and i don't know that coming back in six months would give you the justification under carty and under gall for a twenty month upward variance that's a very large upward variance for simply coming back six months actually could be enough that's not the only thing that he says that the facts about the robberies are troublesome and what happened under troublesome and that's before that he says alternatively let me assume and i would fine given the three robberies elements of attacking his family's i am convinced he's a dangerous guy and he keeps talking so he's not relying just on his coming back well your honor i would disagree that those are valid reasons for an upward variance from the guideline range that with the plus for because after all his criminal history is already taken into account  saying the judges committed errors there's no reason to go back for sensing because he's the only thing to do is is sense him on the plus four when he says if this goes back and we just say take another look at this judge brinn is going to come back and say actually what he just said i give him the plus eight all your honor i'm not quite so confident what i mean because we understand that if you as the supreme court said i'm alina martinez it's very important to not only calculate the guidelines as the initial but as the lone star i would like to go back and have the opportunity for judge burns to consider seriously that it is indeed a plus for a not a plus eight and that he has to consider and justify under carty carty says you must justify an upward variance that he says more and makes a better record for why a twenty month that's a sixty seven percent upward there sorry fifty percent upward variance from the low end and that's a very large upward variance for him to say simply things that he was also using for why he gave the high end at fifty seven months i mean some of his reasoning goes to both of those and i would point out that this is something that we saw among us cameron and one of the reasons why the court there thought it had to go back where you can't simply appeal prove something by saying well no matter what i did whatever guidelines there i commit i would still give this particular sentence we have to have it go back so that he can apply the perec guidelines under molino martina's under under carty under gall and honor i would like to get also take some time to talk about the the same the same error valdivia under your floors indicates that there was an error at the prior deportation but the court applied the wrong standards for the prejudice and prong of the motion to dismiss because it cumulated the factors from two different forms of relief only one of them being relevant to this case so that is a mistake at the very first stage of pink's and usually it was an instruction can you help me with the step before that because i think you're talking about the possibility of of his attending the relief he wanted right yes  just can't get past video mendoza so maybe help me see why you're able to surmount that and i think there's a very simple answer to that is simply because the supreme court has said over and over and over again that de camp and mathis change nothing all they're doing is clarifying the proper way of that as the court said and you can't the way we've always done it that's not not the way we had done it that's for sure right we had done things in our circuit quite differently and that's what we were somewhat scolded for is concerned the currents there which supposed to indicate that if even at the time the ninth circuit recognized but of course we're not concerned with what the ninth circuit well i'm sorry but i mean my problem is that there is no way any rational i j in two thousand and six was this couldn't possibly have predicted fell devean florida's i think they'll do the a floor is crazy today right so the thought that somehow an i j was supposed to anticipate that that's today and twenty eighteen the supreme court says so we have to take what the supreme court says what i have to take from that is there was no case law saying whether that accomplice washington accomplice was categoric or not in two thousand and six if the immigration thousand and six there's no way i look at this and say this doesn't count as an aggravated felony and i don't think you can say that any i j could have been expected to anticipate where we have ended up today where we got up to where we are today is insane ok that just makes no and mathis and judge byrne said well that's something that happened long after two thousand and six but that's not correct in both de camp and mathis the supreme court's stress as they said we have a stressed over organ that  against them because of the possibility that there was accomplice liability your honor i don't think that we can sit here and assume that the immigration judge in two thousand and six if he had applied the categorical analysis correctly as we understand as it was always understood be if he had applied the categorical analysis correctly in two thousand and six we have to assume he would come to the same result as well give you a floor is there is there is there anything in this record that suggests that that mr prosecution and that's why it applies here because do you think you have to do you have to have a jeff to have at least two people involved in a crime in order to get in are not as far as i understand washington all of washington was clear that you don't have to be charges accomplice you can be charged is a princip is a little different doesn't have to be evidence that there were at least two people involved to even to even have this have this error count i can't say that i'm not quite sure that it's true your honor because i mean the cases that i've looked at it happens in any case it doesn't matter here because if we look at the record with that kind of a tiny peek at the record here we can see that in both of these cases here there was a codefendant but that's just the point is that it's inherent in every prosecution and therefore that this case whatever is true whatever the course says about other cases or whether it applies to every criminal we don't know there's all sorts of strange things i take the california joyriding statute for instance now we know that's not categor al because it has and usually it has accessory built into the definition now that's clearly unusual california law doesn't do that anywhere who i don't know why the legislature decided to do that so i can't say i'm not an expert on washington law but it could be that there are plenty of washington statutes where valdivia floors doesn't apply but there's no reason here to say it doesn't apply to the robbery because if it is inherent in every robbery prostitution and it's indivisible as  clear that washington robbery was a theft offense aggravated felony this court had never held that the aiding and abetting statute in washington rendered it overbroad and moreover this court had made it clear that the court could resort to a modified categorical analysis even in cases like this that have now been determined to be indivisible at the time of the defendant's deportation the immigration judge had before  the conviction documents from the washington robbery i submitted them to the court for judicial notice and those documents indicate that that defendant was charged only by himself and that in a written plea agreement the defendant admitted that i wrongfully took property by force from another i was armed with a knife so there is that there was no suggestion at any point that aiding and abetting our accomplice liability was ever an issue in this defendant's washington state conviction so at the time of his his deportation there would have been no reason for the immigration judge to even go down this road yes ok just much time you have i'd  this court has made it clear that a defendant is not entitled to a new appointed attorney simply because he has a lack of trust or there's been some breakdown in communication and has to be a complete breakdown in communication such that there's an irreconcilable conflict between the defendant and the attorney and what what do we make of the statement that that first hearing before judge burns were his then current lawyers said that we think we've reached that point where we don't think we can adequately represent him given the lack of trust and a lack of communication we currently have but i think the court at that point properly turned to the defendant himself to explore the issue and ask a number of open ended questions repeatedly asking the defendant tell me what it is that's what's the problem here what is the communication as you and what the defendant kept coming back to in this case was he had his previous attorney in washington state and then specific discussions about the advice that he was getting from his attorneys about the sentence he was facing let's focus on the first part which is the problems he had with his prior attorney the problems as i understand it is that he had developed a lack of trust for public defenders in general based on his very bad experience in that earlier case and that's what his lawyer communicated to judge byrnes yes so judge burns as i read the transcript basically tried to talk him out of switching to a panel attorney because the penalties wouldn't be nearly as competent and experienced in this kind of case as the lawyers he had from the federal defenders and that probably was sound advice right but but the defendant wasn't persuaded by that and as we know from the you know developments later in the trial that he never did overcome the lack of trust he had with with his current counsel so i guess i'm what bothers me about this is that judge burton seemed to to have intention were certainly good and he was trying to give the defendant good advice in terms of this is why you should stick with your current lawyers but that's not really a call for judge burns to make right if the if the defendant can't develop a level of trust with his current lawyers such that he would even tell them that he's going to testify it just  real problem and it's not overcome by judge burns attempts to have to persuade the guy to change his mind your honor i would agree if all judge burns had done is come in and told this defense and only tried to convince this defendant why he was wrong but the judge words did that and he also repeatedly inquired of the defendant tell me the details of what it is that you're having problems with your attorney tell me what the communications issues are for two reasons one to see whether there was a complete breakdown of communication and i think the defendant's responses in this case indicated that there was not as well as the defendant's interactions in court with his attorney and the court pointed out was here to be cordial it appeared to be communicating even in court and second even if the defendant had a complete breakdown in communication the court was asking questions to determine whether the defendant himself was the cause of that breakdown whether it was his and that is what i mean this wasn't a situation where the defendant was trying to game the system and to lay the trial he was a genuine and his lawyer again his lawyer i think is the best advocate he had because he wasn't always fully coherent his lawyer said we are not at a point where we can communicate with one another such that we can adequately represent him and she assured me that the court that this is nothing to do with delay he's not trying to put off the trial this is a genuine deep seated mistrust he has for public defenders we done our best but we can't change the fact that we're public defenders and if i obviously if you were to appoint a panel attorney that whole issue goes away and for whatever reason judge burns could not successfully persuade this guy that he should get over his distrust of public defenders and we know that that actually caused it it's not like he was making up right given what happened a trial well i'm not sure that we know that his lack of trust cause and effect on the trial caused him to testify if you've ever seen a case in which the defendant just pops up at trial and out as i'm going to testify and his lawyers had no clue that he was going to take the stand had no opportunity to prepare him for that i've never heard of a criminal case and that's what happened at least not where there's any semblance of a real relationship between the attorney and the client that's a major major breakdown in the relationship i don't know how we can say that the trial here was fair if the level of distrust and and lack of communication was at that level i don't i mean you can sure you've seen any trials i can't remember a single one where that said i'm not sure i have not seen that specific instance but i would just go back to saying that over the course of three separate the hearings the court inquired directly of the defendant multiple times as to what it was that his problems were with his attorney and the defendant made it clear that this was not and complete breakdown it was specific issues that he had with the advice that he was getting from his attorneys and a certain lack of trust that he had in his attorneys and this case law court case was clear that that lack of trust or a bad relationship with the attorneys in this context when you've been a point of counsel it's simply not enough insolvable conflict and at the very least the this is an abuse of discretion on behalf of judge burns and certainly if you read the record there are a lot of the time judge burns appear to be convincing attempting to convince  request i definitely understand if it's the second third fourth we have plenty of cases saying the judge has a lot of leeway there but this is at the very beginning of the case at the very first hearing where the guy is appearing before judge burns what's the problem much just giving him another lawyer i don't understand that  wouldn't have been a problem and that probably would have been the easiest thing to deal with this point but i think on abuse of discretion and review we can't say that it was illogical but we can't because there was no good reason not to give him a new lawyer it wasn't again i get it if he's defense a week before trial i get evidence that this is the third request but there's no gamesmanship each just saying i have a genuine problem with this lawyer i can't get over it thanks for trying to persuade me i'm not persuaded and the lawyer tells him we don't even think we can adequately represent the guy given th public defenders because we can have different views on it but i agree with judge what that seems to be a at least a major part of not the sole part you know we usually say people are entitled to counsel but not counsel of their choice is there any case one way or the other in what is in effect a negative choice i refuse to be a point represented by public defenders because i don't trust them generically i'm not aware of a subset of the way specific case on that point all i would say is that that would seem to fall into the  a subsequent hearing and then it's not raised to get us that is that is that where we are unless i don't think i don't think obviously ordered made a made a subsequent request of that to represent himself that's correct it was sort of at the end of a long discussion about  getting the attorney that he wanted he then said represent myself the court actually put on calendar for later that afternoon initially and then decided at the defense counsel's request to put it the following monday i believe and then it never went forward  he never renewed that request or they never got to that hearing and not the records not entirely clear why that was but essentially that other than that sort of brief request from the court set a second hearing on the defendant never again at any point requested that he represent himself i think that there was i think one sort of oblique references to it again in the middle of sort of a twenty pages of discussion with the court where he said he was going to do his own legal research and file a motion from the law library but these were sort of there was never a fully formed request to represent himself and the court when there was that initial request put it up and set it for a forever hearing but but it never occurred and so quick points on the sixth amendment issues as pointed out counsel stated an unequivocal terms that we can constitutionally represent him in the state of our relationship is right now the judge should have just then that was enough for it better for the judge to something but what the judge said was well then he has to behave himself so he just simply wasn't open to it this was not only counsel statement but it was confirmed by very concrete objective evidence judge walker pointed out the stealth decision to testify completely unprecedented but i would also point to the fact that counseling good faith also called for a competency hearing that is about as clear an indication that well if he wasn't mentally incompetent and unable to cooperate he was still it shows that the level of cooperation was that is rock bottom if counsel asks for a competency hearing that means he gets a new counsel i think that's at least can be taken as evidence that in good faith counsel believe that the that the relationship has so broken down that it's either because he's unable to cooperate but it certainly indicates the predicate is that he is not cooperating whatsoever and i think that's that's confirmed by the stealth decision to testify and by the existence he put up to the jury waiver  i would also point out that in the forever case that was simply undecided so that's an abuse of discretion right there this court has to decide whether it's abuse of discretion or do novo under if you it's an abuse of discretion because the judge failed to exercise discretion but it also didn't know i think all the facts under the earth can factors that i say in my brief are right here i don't the record he knew what the charge was he clearly knew the defenses because he was talking about different offenses he knew what the penalty was because the judge advised him about the penalties and he knew the dangers of self representation because that's all the judge burns we talked to him about was all the dangers of why he shouldn't change counsel so on this record it's clear that every one of their skin factors is present he should have been given his right to represent himself and the fact of the court said i'm not going to go through all that right now all that is simply a regular knowing and intelligent decision like it was a plea he doesn't have to show any skills or experience he simply has to show that this is his knowing and intelligent decision