morning everyone before we began our oral argument docket judge person and i would like to welcome to take a listen from the th circuit thank you very much for helping us with their busy darker we appreciate  it also two cases are submitted on the briefs at this time those are united states or swann and cardona sanchez versus barr and with that we'll begin oral arguments in the order of the may please the court thank you your honor if i could reserve two minutes of my time for but all you have to keep track of your own talk to try to honor that sounds good thank you your honor this is a criminal appeal from the district of idaho in which mr sanchez espinosa was sentenced to two hundred and forty months upon his guilty plea conviction to conspiracy to distribute methamphetamine the issue before the court is whether the district court deprived mr sanchez of his right to counsel of choice when it twice denied his attorney's motion to withdraw and i think based on the briefing that the court has before it the line of dispute is pretty clear between the parties there was never a motion to withdraw it was is language in an affidavit correct correct it was i would i would characterize it is a request to withdraw within an affidavit at least as to the st the st requests there were two requests in this case your honor and the district or certainly treated those as requests by counsel to withdraw from the case the real dispute is the government is arguing that these are not attributable to mr sanchez these were garden variety motions to withdraw filed by his attorney and of course we disagree with that for the reasons we stayed in our briefing you know i'll address that a little more detail in the sony affidavit to the extent that the appropriate document says that my client's just so yeah absolutely i mean i think that's it's a little ambiguous whether that deals with everything after that phrase but it certainly could in as to either alleged request for an ever say it orally and did the district court also at some point say oh if you want to terminate counsel put it in writing and then there was never a writing request as to the as to your nd question i believe the district court was arose after counsel had requested that the court have a comp and see evaluation for his client the court ordered that and then quickly after that this is when the affidavit was filed your honor in which the the attorney highlighted how he and his client disagreed on this course course of conduct he didn't want to have his comments evaluation and at the end of that affidavit that's when the attorney says if you're not going to change the venue of the evaluation from i think sea tac to the local county jail then at my client's behest i want to be out of this case because we have a breakdown in communication the sort sort of fed that went to the district courts  you can make a formal request and your honor i'm not saying it right i'm taxing might my memory on this night that may have been when they actually had the hearing which would have been after the nd request which was after the competency sentencing then was there a motion there was not a motion after that your honor but there had been a previous request to withdraw or there was only one in the end rather than no there were two there was a guilty formal break after the nd one because you can follow up again if you want to end and no follow up occurred that point it just looks to me like as often counsel and clients frequently have a disagreement over competency does a defendant really want to be declared incompetent so they have this sort of fractiousness and then there's this request this conditional request about i want it done at the local jail by the time they actually get in front of the judge it looks like the defendant saying i just want to go to sentencing and the judge says ok if you have a problem with your coun it and he doesn't so my question to you is it's a really thin and difficult record to squeeze out a six the member request to terminate retained counsel the judge would have to have looked through quite a bit to have gotten it i agree in the end he intones or she the incorrect standard so what's your what's your thought on that are we going to announce a rule that it's pretty did district judges have to dig deep deep down into motions for competency to see language that's line but that's because the language that the defense attorney gave them was because the relationship will have broken down so the defense attorney fed the district court the language that pertains to an appointed counsel correct but you know my position would be  to know what the law is in that circumstance but the other problem is that everybody here forgot that he was retained counsel from the for and  and we know that both from the fact that the wrong standard it was that lawyer was reciting the wrong standard to he wasn't just not reciting the right standard he was reciting the wrong standard he was saying that the question was whether there was breakdown in communications and so on and moreover the district court noted the difference and nobody stood up at that point and said i'll weigh it way this is actually retained counsel well i  round is invited or no i don't think so because what would retain counsel said when he said there's a break down he's just telling the court what's what's happened well it could be one of two things besides that one is but the other is that the motion itself is conditioned upon the court's finding that there's actually been sufficient breakdown in other words it was already conditioned on please have the competency at the  county jail and then oh by the way also it's conditioned you know this breakdown in communications so i guess that's my difficulty with it whether it's so conditional that it doesn't get you all the way there i don't think it was conditional on the break down part of that and i'll just read what he wrote he said if the court is an able or unwilling to do this and what he meant by that was change the venue right then at my client's behest i move to have the competency hearing process delayed so that new counsel can assess the situation and to withdraw as counsel because the attorney client relationship will have broken down so the way i construe that your honour's if you're going to deny the request to change the venue and i need a case seems coercive why would we ever reward a defendant for telling it just you judge if you don't give me what i want then you have honor the standard we're operating under this defendant could just say i want to fire my attorney but he doesn't so he doesn't even have to give a reason for did he never he himself never said anything correct as to this affidavit he didn't have an opportunity because the judge ruled within a matter of days in writing it never held a hearing it didn't bring in the defendants say it didn't clarify that the record so i know the government is sort of  the court to look at this as again this is not an appointed counsel for pointed counsel this defendant didn't need any reason at all to discharge this jury and the case law is clear we'd ask you to vacate remand thank you good morning may it please the court my name is bryce ellsworth representing the united states at the district court did not plainly air in this case when it denied the defendant's counsel's motions to withdraw the defendant in this case consistently made it clear that his wishes were to proceed to sentencing ok seems so sort of simple to me a defense attorney on behalf of client says at my client's bequest withdrawal district court on for eleven says i denied that motion to withdraw using the improper legal standard why isn't it just fairly obvious we would just reverse because improper legal standard i don't see that it's not preserved it's right there in the motion is i want michael i want to withdraw my client's request you go your honor the government's position is that it wasn't preserved because the defendant never asked to have his attorney terminated immediately it was a condition based off of whether or not the court would st cancel the defendant speak through their attorneys what case do you have that you have to perfect the th amendment by sort of interrupting your attorney and saying i want that too if the lawyer says it's at his behest that's always i understand what case you have that that's it isn't preserve the air you're out of the concern is that the case i do not thanks so if it's not plainer what is our standard of review it's abusive discretion or something you know or don't know because it's a legal issue and if there is it's an abuse of discretion correct yes your honor but i don't believe that applies in this case because the court does hear the st it gets the st requests the conditional requests for withdraw from defense counsel at the same time in which it's supposed to consider whether or not the defendant needs a competency evaluation the court orders a competency evaluation because it believes it's appropriate and kind of kicks this down the road as far as having what you can down the road  he said no that's your weakest argument and i understand that your honor but under these circumstances the defendant's making clear that he wants the comp and see valuation not to occur and he wants to proceed to sentencing even at that time but you're boring two things  the discord and a written rule later the guy says i want to go to sensing but that's because he's words motion why would he say anything other than that he's not going to convince the just court to change his mind keppler the two together and say he wants to go to sentencing when he had the he originally said i want to terminate counsel but i don't the record doesn't actually for flecked that he said i want to terminate can will his lawyer say that my client's behest i want to withdraw i mean there were words in between that about you know him what circumstance he wants to withdraw but what is i'm clear about that my client's past i asked to withdraw the unclear portion is the conditional portion of that that the court court understood what he was asking for and said no correct yes ok and i think the conditions in which it was requested was the court has a limited amount of time to get him transported for this competency evaluation the defendant doesn't want to lay and yet there's these conditions that those events inserting into his request that i think the court can't comply with both but he definitely applied the wrong standard is that not l no that's very clear you're on i said what for difference if it was in a hurry or if was condition or anything else that the difference is that the court follows up later when the motion is renewed and at that point it's very clear that this isn't a motion where the defendant's requesting that behest i moved to withdraw to give another lawyer a chance to look at this issue without making it conditional he had an absolute right to have that granted did he not yes at that point so the only question is whe this you know if you don't do x then this request ripens into a present request so why would that change the outcome you know because it wasn't a direct request to the court  but the court understood it to be a direct request by ruling on it but even under it if the court had ruled on this case under the correct standard the court could have or should have denied it at that point because of the time and let it wait wait wait i thought you said i thought you agreed that he had an absolute right to have his counsel withdraw our since it was retained counsel you know if this would have been a direct motion to withdraw not a motion that was to reconsider their request for a competency evaluation with a condition so you're really relying on the title of the document that it's an affidavit and not style the separate motion  and sounds like to me it's the conditional nature of the requests that the government's relying on in this case so why does that matter when the condition was fulfilled because here they're asking that the defendant revoke the prior order for a competency evaluation and only if the court's not willing to do that or to change the venue are they then asking that at that time yes but that so that the law if they if the defendant got not personally himself and said i don't want to do this competency hearing and if you're going to make me do it i want to have another lawyer i'm going to fire my lawyer then what i think at that point the defendant's making a direct into the courtroom right but it's just just conditional so at which we're relying on the condition or the or the end or the fact it was through counsel you know i think it's different when it in this situation because it's not just one condition there's two different conditions involved it's after the defendant's already made the request for the competency evaluation and the court had time constraints in which it's trying to get and transported to the right location and tell me what the relevance of the time constraints the standard in regards to counsel of choice is not limited limitless that the one thing that long standard it doesn't matter if he had applied to write standards and you know that time is really short and i'm just can't do it now that would be different but he didn't do that you know but the standard that he's looking at  and i agree with the court the court had the court should have applied the right standard i ask you something suppose we thought that they were and he was an improper denial of the right to fire retained counsel what would happen here and then and  if it happened at the the nd one it seems to me it's much more ambiguous because it does it seems to me not clear that a motion that their district court seems to have said well they his senses again isn't happening yet if you want to actually make a motion to withdraw you can make one and i gather one was made so there is an argument of the nd one never was actually denied but the sept st one was clearly denied and under the wrong standard so then what what what what are we talking only about the sentencing yes he'd already pled guilty at this point tell you to have to redo the sentencing basically that's correct you're over there which i guess i've felt all along this is relevant to the issues before us but it seems hard that everybody is fighting so hard to get sentencing which is likely to come out exactly the same way as the st time regardless of who the counsel is a greater i mean there are the yes if he was denied the right to counsel of his choice we don't look at prejudice but i do find it difficult to see where the prejudice was i know that's not necessarily relevant but and it's the government's government's position in this case that he never actually made a direct request from the court  to have his counsel withdraw the only real ques we get is a conditional request that doesn't matter that what all the prejudice doesn't apply life moved on of them after this when they could the condition was if you're unable or unwilling to have the evaluation ada county jail but as it turned out there wasn't and that was the reason given for wanting a new lawyer and it didn't happen and now it's over and although what we would  would be dealing now was not was really doing where in the competency hearing is going to be held but the sentencing which was really not part of the request correct your honor in the defendant at no time stated that he wanted to turn in for purposes of sentencing when there was an actual hearing held after the competency that you hear us all struggling with relief and i looked his principal brief requests vacating sentence but the reply brief says vacate wieman judgment wouldn't it be true if in fact vacated the sentence that they'd be back in the position where he could seek he could move to withdraw his guilty plea and i could your honor so that maybe what he's after that could be i'm not sure your honor i do see that my time of his has yes it has thank you very much thank you  he wouldn't he had the lawyer he wanted correct and i would be clear i'm not linking that to the issue before the court today maybe some other issue that he believes that his plea was not voluntary or something along those lines i'm just not forgotten because of the council i'm just saying if you want to make a formal motion go ahead and make a formal motion yeah there was never actually tonight but i would say without prejudice to reconsider i mean he said i know he didn't he never even make some formal motion if you want to any never does there was no it was hinted at the fact it was conditional doesn't particularly bother me except that it was conditional on something that then went ahead and happened so even though there's no the ordinarily no pressure has questioned this was linked up together so what is the point at this point of reversing the sentencing when he was when he could have made a request on the sentencing itself and didn't when you know life's moved on with regard to the request from counsel he says we're having this problem he doesn't when i was calm sea of iowa did at the very least have at that in a county jail if you're not going to do that i need to withdraw because our relationship is broken down so i would suggest i coun has said today there was a time issue that the train was leaving the tracks and the judge needed to have an order but what the judge should have done because a judge has a duty if he has a bona fide doubt to competency himself he has to order it regardless of i think we understand your position the case just argued is submitted and we appreciate the helpful arguments from both coun