Unpublished Disposition, 930 F.2d 31 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 31 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Pablo VALDOVINOS, Defendant-Appellant.

No. 90-50023.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 8, 1991.* Decided March 27, 1991.

Before JAMES R. BROWNING, D.W. NELSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

Pablo Valdovinos appeals the district court's denials of his motions to withdraw his guilty plea and to substitute counsel. We affirm.

The district court did not abuse its discretion in denying defendant's motion to substitute counsel. The motion was untimely. It was made the day of the sentencing hearing and would have required a continuance. See United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). Moreover, the court adequately inquired into the conflict between defendant and his attorney. Valdovinos' concerns related solely to the possibility of an unexpectedly harsh sentence. After the judge stated his intention to impose the sentence Valdovinos thought he had bargained for, Valdovinos' attorney admitted the conflict had disappeared. This type of brief disagreement with counsel does not constitute the necessary "total lack of communication preventing an adequate defense." Id.

The district court adequately determined that Valdovinos' guilty plea was voluntarily, knowingly and intelligently made. Valdovinos solemnly declared his guilt in open court, and the one questionable exchange he cites does not vitiate his clearly expressed admission. In addition, the district court adequately established the factual basis of the plea under Fed. R. Crim. P. 11(f). Valdovinos' own admissions establish that he retrieved a loaded gun from his car and had it on his person during the drug transaction at issue. It was thus quickly and easily available for use. See United States v. Guy, 903 F.2d 1240, 1243 (9th Cir. 1990).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3