* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTURO MENDEZ-HOLGUIN, Defendant-Appellant. No. 02-3377 (D.C. No. 02-20010-01-CM)

(D.Kan.)

ORDER AND JUDGMENT *

Before EBEL , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and MURPHY , Circuit Judge.

Arturo Mendez-Holguin (the “Defendant”) was chargedin a one count indictment filed on February 6, 2002, in the United States District Court for the District of Kansas with illegal re-entry by a deported alien previously convicted, in a district court in Wyandotte County, Kansas, of attempted possession of cocaine with an intent to sell, in violation of 8 U .S.C. § 1326 (a) and (b)(2). On July 15, 2002, the district court, after hearing, a ccepted a change of plea to guilty2

of the charge. At the change of plea hearing, Defe ndant was represented by Michael Harris, an assistant federal public defende r. At the outset of the hearing, counsel stated that though the Defendant “does spea k English, I have found with some of the legal concepts it is helpful to have an interpreter just so there isn’t any miscommunication.” Accordingly, an interpreterwas also present and, after being sworn, he participated in the proceeding. A revised presentence report was filed with the cou rt on September 18, 2002. In that report, the Defendant’s adjusted off ense level was set at 13, which, coupled with the Defendant’s criminal history categ ory of IV, set his guideline range at 24 to 30 months imprisonment. The report stated that the “probation officers have no information . . . which would warr ant a departure from the prescribed sentencing guidelines.” No objection to the report was filed by the United States or by the Defendant or his counsel. On September 20, 2002, the Defendant filed, pro se, a two page, single spaced, typewritten “Motion for Downward Departure Due to Family Ties and Hardship in the Alternative Reduction of Sentence.” In that motion (typed in English), Defendant stated, inter alia , that he re-entered the United States after his deportation so he could attend a custody hearin g to be held in Kansas concerning his three-year-old daughter. In that sa me motion, on a different matter, Defendant also stated as follows:3

Through the advice of court-appointed counsel, Mich ael Harris, defendant plead guilty to illegal re-entry 1326(a) but did not explain to this defendant that an additional charge of bein g an aggravated felony 1326(b)(2). With the additional charge the guideline range was put past the term’s this defendant understood a s being the plea bargain. The understanding of this defendant was t hat the time of incarceration would not exceed 30 months. (Emphasis added). The government, on September 29, 2002, filed a resp onse to that motion. The government conceded that, under the Sentencing Guidelines, “family circumstances and responsibilities are a permissibl e but discouraged departure factor.” U.S.S.G. §5H1.6. The government’s positi on was that the motion be denied because “the Defendant has simply failed to meet his burden of showing that a departure was warranted.” A sentencing hearing was held on November 7, 2002, at which time Defendant and his attorney, Michael Harris, and an interpreter, were present. At the outset of the hearing, Harris again indicated t o the court that since the Defendant did not speak or understand much English, it would be “helpful to have an interpreter for the more complicated legal matte rs.” The interpreter was thereafter sworn. Also, at the outset of the sente ncing hearing, the district court stated that it had received a letter dated August 2 1, 2002 from the Defendant “requesting a new attorney.” The Defendant indicat ed to the court at that time that he wanted a hearing on his request for a new attorney on the ground that his attorney was “ineffective” and had not “properly re presented” him. The court4

then swore the Defendant and questioned him, throug h an interpreter, on that matter. Based on the ensuing colloquy between the court and the Defendant, it would appear that Defendant’s request for new couns el was based on his claim that Harris had not informed him, prior to his chan ge of plea, that because his deportation was after he had been convicted of an a ggravated felony, his base offense level of 8 would be raised by 8 levels unde r the guidelines. Harris, at that point, orally moved the court to permit him to with draw as counsel for the Defendant. In so doing, Harris agreed that if he had failed to tell the Defendant about the fact that Defendant’s base offense level would, under the guidelines, be raised by 8 levels because of his prior conviction, he would have been “ineffective.” He added, however, that there “migh t be some disagreement that I would have with the statement that Mr. Mendez has g iven the court under oath,” stating that the “attorney client privilege would p reclude me from being more candid with respect to that.” The district court thereafter stated that he had ju st reviewed the transcript of the hearing at which Defendant asked to change h is plea to one of guilty, and that he would deny Defendant’s request for a “new attorney” because, in effect, the Defendant “knew the consequences” of the charge he desired to plead guilty to. The court stated that it intended to proceed w ith the sentencing hearing. As concerns the presentence report, in response to the court’s inquiry,5

Harris then spoke as follows: No, Judge. We received the original draft of the p resentence report back in July. Copy of that was provided to Mr. Men dez. He and I met on two occasions to go over the report. Second time specifically was to go over criminal record history calculations under the report and the effect of the Wyandotte County conviction a nd the revocation of supervised release federally which occurred in f ront of Judge VanBebber, and how those computed under the guideli nes. I made copies for Mr. Mendez of the appropriate guideline sections dealing with criminal record history, and found the report to be factually correct. At this juncture, the district court then spoke as follows: At this time, the court would find that for purpose s of sentencing, the total offense level should be a total offense level 13 [the Defendant’s offense level was reduced by 3 levels for acceptanc e of responsibility] and a criminal history category of 4. At this time – at this state of our sentencing hearing, are there any objections to the total offense level or the criminal history category? Mr. Patton? MR. PATTON: No, your honor. THE COURT: Mr. Harris? MR. HARRIS: No, Judge, there are not. The government indicated that it had no objection t o the court’s calculation of Defendant’s offense level, as did Harris. The court then proceeded to consider Defendant’s pr o se request for a downward departure. In connection therewith, the g overnment stated that it opposed any downward departure on the basis of “fam ily circumstances and responsibilities.” Harris responded by stating that he, and the Defendant, knew that the reason for returning to the United States did not expiate the crime of unlawfully returning to the United States, but thathis reason for returning was6

based on “rather unique family circumstances.” The district court then denied Defendant’s pro se m otion for downward departure, and in connection therewith spoke as fol lows: In your case, the court is sympathetic to your plig ht of your hardships and for your reasons for re-entering the United States. The court cannot conclude, though, that your circumstances pl ace you outside the heartland of cases as contemplated by the guide lines. There simply exists no extraordinary circumstances upon w hich the court can justify a departure. Your motion for downward departure is denied. The district court then proceeded to impose sentenc e. After noting the statutory penalty was up to 20 years, and that the guideline range was 24 to 30 months, the district court imposed a sentence of 24 months. We note that Defendant had informed the court in this regard in his motion for downward departure that counsel had advised him that his “in carceration would not exceed 30 months,” and it did not! On appeal, counsel, who was appointed by this courtto represent the Defendant, first argues that the district court err ed in denying Defendant’s pro se letter request for downward departure. As mentione d, in that letter the Defendant stated that his reason for returning was his desire to attend and participate in a custody hearing concerning his daughter in a state court of Kansas. (His reason for returning was also mentioned at the hearing whe n he changed his plea to guilty). The district court apparently was of the view that it could make a7

downward departure based on “family responsibilitie s” but did not choose to do so under the circumstances. In this regard, U.S.S. G. § 5H1.6 provides as follows: Family Ties and Responsibilities, and Community Tie s (Policy Statement) Family ties and responsibilities are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine. This court generally does not have jurisdiction to review a sentencing court’s refusal to make a downward departure exceptin the rare cases where the sentencing court states that it does not have the a uthority to do so. United States v. Browning , 252 F.3d 1153, 1160-61 (10th Cir. 2001); United States v. Castillo , 140 F.3d 874 (10th Cir. 1998). That is not our cas e. And counsel does not contend in this court that the district court erred in denying a downward departure based on so-called “family responsibilities.” Rath er, counsel argues that the district court erred in not considering whether, fo r the reasons the Defendant gave in his pro se motion for downward departure, explai ning why he returned, he might be entitled to a downward departure under the “lesser harm” guideline, i.e., U.S.S.G. § 5K2.11, which provides as follows: Lesser Harms (Policy Statement) Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduc ed sentence may be appropriate, provided that the circumstances sig nificantly8

diminish society’s interest in punishing the conduc t, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the def endant believed that the government’s policies were misdirected. In other instances, conduct may not cause or threat en the harm or evil sought to be prevented by the law proscribing the o ffense at issue. For example, where a war veteran possessed a machin e gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted. The lesser harm issue was not raised, as such, in t he district court, but counsel suggests that it was error for the districtcourt not to do so, sua sponte

. We do not agree with that suggestion. Since the is sue was not raised in the district court, we are not inclined to consider it for the first time on appeal. Walker v. Mather, 959 F.2d 894, 896 (10th Cir. 1992). On the basis o f the Defendant’s motion for downward departure, the dist rict court did not have the burden to search the record, as well as the guideli nes, for all possible bases for a downward departure. Counsel on appeal also argues that the district cou rt erred “when it did not inquire into a conflict brought to its attention orappoint substitute counsel.” The district court didmake inquiry. The district court, which, just pri or to sentencing, had reviewed the transcript of the change of plea h earing, heard the testimony of the Defendant through the aid of an interpreter, an d the statement of his counsel,1 On the merits, we would note that defendant’s reque st for new counsel was

apparently based on his belief that his appointed attorney had not advised him before his change of plea that his base offense lev el could be raised 8 levels because of his prior conviction of aggravated felony, and his “understanding that the time of incarceration would not exceed 30 month s.” (The latter was set forth in defendant’s motion for downward departure). As has already been mentioned, with the 8 level increase in his base offense level because of his prior conviction, the guideline range was 24 to 30 months (i.e. it did not “exceed 30 months”), and he was sentenced to 24 months. 9 and based on such inquiry, the court denied Defenda nt’s request for new counsel. A district court’s denial of a motion to substitute counsel is reviewed for abuse of discretion. United States v. Anderson , 189 F.3d 1201, 1210 (10th Cir. 1999). The district court did not abuse its discretion. 1

Judgment affirmed.

Entered for the Court

Robert H. McWilliams Senior Circuit Judge