US v. Yamashiro, No. 12-50608 (6-12-15)(Bell, D.J., with Silverman; partial concurrence and dissent by Bea). Structural error occurs when a victim allocutes at sentencing, the defendant is present, but he is without counsel. This constitutional infirmity is not subject to harmless error because at this crucial phase, counsel was not present.

The defendant here plead guilty to wire fraud and money laundering. At sentencing, he asked for a substitution of counsel. The court granted the request, released original counsel, and set a new sentencing date. Although new counsel had not yet appeared, the court did not want the victims to feel they had appeared in vain. The court proceeded with the first victim's allocution. The court asked the relieve counsel to stay, but assured him he did not have to do anything. The first victim testified about the impact of the fraud on him. Then, the new lawyer appeared and the other five witnesses testified. Subsequently, at the new hearing, defendant requested to withdraw from his plea. the court denied the request.

The 9th held that the defendant was without counsel at this crucial stage. Yes, it was only one victim-witness, but the court stated it affected the sentence. In Robinson v. Ignacio, the 9th had previously held that the denial of counsel at sentencing was structural error. 360 F.3d 1044, 1061 (9th Cir. 2004). Structural error does not require prejudice. The error is plain.

The 9th vacated the sentence and remanded to a different judge for resentencing. The 9th also affirmed the denial of the motion to withdraw from the plea.

Bea concurs in the affirmance of the denial of the motion to withdraw. He dissents however from the finding of structural error. There was only one witness, counsel could listen tot the recording and sentencing was reset.