Appeal from the United States District Court for the Southern District of California. Larry A. Burns, District Judge, Presiding. D.C. No. 3:08-CR-03679-LAB-1.
The opinion of the court was delivered by: Paez, Circuit Judge
Argued and Submitted May 4, 2010 -- Pasadena, California.
Before: Betty B. Fletcher and Richard A. Paez, Circuit Judges, and Donald E. Walter, District Judge.*fn1
Defendant-appellant Jorge Farias appeals his conviction of one count of attempted entry after deportation, in violation of 8 U.S.C. § 1326. Farias argues that he was wrongly denied his Sixth Amendment right to self-representation when, after he timely invoked his right to proceed pro se and during the Faretta colloquy, the district court informed him that the trial would not be continued. Farias also argues that his sentence was substantively unreasonable because it exceeded the maximum parsimonious sentence permitted by 18 U.S.C. § 3553(a). Because we conclude that Farias was denied his Sixth Amendment right to self-representation, we reverse Farias's conviction. In light of that holding, Farias's sentencing challenge is moot.
After numerous state and federal criminal convictions, Farias was found deportable by clear and convincing evidence at an in absentia hearing in 2008 and was ordered removed to Mexico. Later that year, he was arrested and charged with attempting to enter the United States after having been previously deported, in violation of 8 U.S.C. § 1326. His trial was scheduled for January 13, 2009. On January 12, during a pre-trial hearing, Farias expressed dissatisfaction with his attorney, who he claimed had failed to file a collateral challenge to his prior removal order. Farias then stated: "Now, if you'd give me the opportunity, then, I would like to go pro se. I'm asking you respectfully." In response, the district court replied, "You have a right to do that. . . . The Constitution's been interpreted by the Supreme Court to say if you want to do that, you've got a right to do that. But it's never good advice to do that." The district court then attempted to dissuade Farias from proceeding pro se, inquired as to why Farias was displeased with his attorney, and imparted his own favorable opinion of Farias's attorney's legal acumen. During this colloquy, the district court stated:
Mr. Farias, you have a right to represent yourself. I'm not going to tell you you don't. I'd have to go through some more discussion with you about that if that's what you choose to do. But your case is going to go to trial tomorrow. We're calling a jury in to try the case tomorrow. And I don't know if you're ready to try the case tomorrow. That's when it's set.
Shortly thereafter, the district court reiterated the warning:
Now, again, I'm trying to talk you out of it, but I want to emphasize to you you have a right to do it if that's what you want to do. But it's not going to forestall your trial. Your trial is going to go forward tomorrow.
I mean, if you feel like you're ready to stand in [your counsel's] shoes and try your own case, then that's your decision to make. I have a little bit more I want to talk to you about that and tell you what the maximum penalty is and some other things, but I would encourage [you] not to do it. I'm presuming at this point that you're not guilty of this charge, and your lawyers are ready to fight for you in front of the jury and say, "Look, he's not guilty of this. He didn't do this. Don't convict him of this."
. . . You seem pretty passionate about this yourself, but I just don't know that you're ready to step into his shoes and do this.
Farias then responded: "You have a point. What's that other type of trial that you may have?" The district court then moved on to discussing whether Farias wanted a jury trial or a bench trial, and the issue of ...