United States v. Emilio Hernandez-Valenzuela

Appellant appeals his conviction for smuggling marijuana over the Mexican border in violation of 21 U.S.C. §§ 952 , 960, and 841(a)(1), and he appeals the calculation of his sentence under the guidelines. He argues that the trial court erred in denying him a continuance when he substituted new counsel before trial, in denying his motion to exclude the in-court identification by a customs inspector, and in enhancing his offense level for obstruction of justice.

I

Appellant sought to substitute new counsel on the first day of trial because he claimed he had developed an irreconcilable conflict with his appointed counsel the day before trial. The district court examined appellant and his appointed counsel and found no irreconcilable conflict. Nonetheless, after appellant’s new attorney represented that he could be ready for trial in two days, the court allowed the substitution of counsel and continued the trial for two days. No motion for a further continuance was made. Appellant cannot now claim that the district court abused its discretion in failing to grant a continuance that was never requested.

II

Appellant’s second contention is that the district court should have granted…