United States v. Quintero-Acosta , 355 F. App'x 685 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4752
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE ARMANDO QUINTERO-ACOSTA, a/k/a Jose Manuel Ibarra-
Reyes,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00345-RLW-1)
Argued: October 28, 2009 Decided: December 3, 2009
Before KING, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
ARGUED: Carolyn Virginia Grady, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, for Appellant.
Dana J. Boente, Acting United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Jose Quintero-Acosta pled guilty to one count of unlawfully
reentering the United States after having been removed following
an aggravated felony conviction, in violation of 8 U.S.C.
§ 1326, and the district court sentenced him to a 24-month term
of imprisonment. He now appeals his conviction and sentence,
arguing that the court erred by (1) failing to allow him to
substitute counsel and (2) failing to provide an adequate
statement of reasons for his sentence. For the following
reasons, we affirm the conviction but vacate the sentence and
remand for resentencing.
I
In September 2007, while he was serving a seven-year
sentence in state custody, Quintero-Acosta was indicted on the
§ 1326 illegal reentry charge. At that time, the district court
appointed Carolyn V. Grady of the Federal Public Defender’s
office to represent him. Through counsel, Quintero-Acosta
unsuccessfully moved to dismiss the indictment, and his trial
date was eventually set for April 9, 2008.
In late March, ten days before the scheduled trial date,
Ms. Grady moved to withdraw and have new counsel appointed,
stating that her relationship with Quintero-Acosta had
deteriorated “to a degree that effective assistance of counsel
3
cannot be rendered.” J.A. 53. Simultaneously, Quintero-Acosta
moved pro se for Ms. Grady’s removal and for appointment of new
counsel. In his motion, he explained:
To date, I do not feel that counsel has represented me
to the best of her ability nor do I feel she will be
able to in the forseable [sic] future. I do not feel
that she has been honest and forthcoming with
information. I also feel that she may not have the
experience and or knoledge [sic] in dealing with an
“Illegal Re-Entry” charge that I am currently facing.
I feel that I would be better represented by counsel
that is experienced in Imigration [sic] law, or at
least familiar with a re-entry charge.
J.A. 84.
Several days later, during a hearing on these motions, Ms.
Grady informed the district court that she was unable to
communicate “sufficiently or productively” with Quintero-Acosta.
J.A. 58. In response, the court indicated that it viewed the
effort to substitute counsel as a delaying ploy, and it noted
that Ms. Grady was qualified to handle the case and that
Quintero-Acosta was “lucky” to have her as counsel. J.A. 58-59.
Ms. Grady responded that she did not think the motions were a
delaying ploy. Further, she stated:
We have been trying to communicate and going back and
forth. I think I resurrected our relationship to a
degree a number of times, but . . . with court
approaching so quickly and us breaking down
completely, I thought that it was in his best interest
for me to do this.
J.A. 59. The court replied that Quintero-Acosta could either
cooperate with Ms. Grady or defend himself pro se.
4
Quintero-Acosta was then permitted to address the court.
Although he told the court that he did not feel that Ms. Grady
was representing him to the best of her ability, he also stated:
The problem is not that I don’t want her to represent
me. I would like for her to represent me. But she
can’t give me answers when I ask her questions. It is
either “I don’t know, I don’t think,” and that is not
an answer. I need facts, proof. When I ask a
question, I would like to have proof of the answer,
and she can’t give me that. . . . I am – only the
answers I am looking for is based on the law. It’s
not based on her opinion.
J.A. 62. The court reiterated that Ms. Grady was qualified to
handle the case.
Thereafter, for reasons unrelated to the motions, counsel
for the government requested that the trial be moved to April
16. After some discussion, and with the parties’ consent, the
court rescheduled the trial for May 1. In concluding the
hearing, the court instructed Ms. Grady to inquire within her
office to ascertain if another attorney could substitute for
her, and it noted that such attorney would be permitted to
substitute without a further hearing.
It does not appear from the record that Quintero-Acosta
pursued his motion to substitute counsel after the hearing.
Instead, on April 28 he appeared before the district court with
Ms. Grady as his counsel to plead guilty. In a written
statement that was filed with the court, the parties stipulated
to the operative facts establishing Quintero-Acosta’s guilt.
5
Quintero-Acosta signed the statement and noted that he had
consulted with Ms. Grady beforehand. Likewise, Ms. Grady signed
the statement and noted that she had reviewed it with Quintero-
Acosta and that she believed he was making “an informed and
voluntary decision.” J.A. 83.
Although the issue was not specifically addressed, the plea
colloquy suggests that Ms. Grady did not have any significant
problem communicating with Quintero-Acosta after the motions
hearing. For example, Quintero-Acosta averred that he had met
with Ms. Grady, she had advised him it was in his best interest
to plead guilty, and he was following her advice. J.A. 71-72.
Moreover, Ms. Grady told the court that she had discussed the
plea with Quintero-Acosta and that, in her opinion, he was
knowingly and voluntarily pleading guilty. J.A. 77.
The district court sentenced Quintero-Acosta in mid-July.
In a pre-sentencing memorandum, Quintero-Acosta (with Ms. Grady
as counsel) stated that he did not object to the suggested
guideline range of 24-30 months, and he requested that the court
sentence him “at or below the low end” of the range. J.A. 85,
86, 90. The gist of his argument for such a sentence was that
he had been in state custody since 2003 serving a sentence for
drug possession, during that time he had rehabilitated himself,
and he was facing removal upon the completion of his federal
sentence. Ms. Grady reiterated this request during the
6
sentencing hearing. 1 After Quintero-Acosta spoke briefly to the
court, counsel for the government stated that he should be
sentenced within the guideline range and that there was no basis
for a sentence below the range. The court then imposed the 24-
month sentence. The court’s only explanation for the sentence
was that it “is fair and reasonable and is within the advisory
guideline range, which in the exercise of judicial discretion
was found to be consistent with the requirements of 18 U.S.C.
section 3553(a).” J.A. 112.
Quintero-Acosta timely appealed. As noted, he contends
that the district court erred by denying his attempt to
substitute counsel and by failing to provide an adequate
statement of reasons for the sentence.
II
We first address the district court’s denial of Quintero-
Acosta’s motions to substitute counsel. “An indigent defendant
[such as Quintero-Acosta] . . . has no right to have a
particular lawyer represent him and can demand a different
appointed lawyer only with good cause.” United States v.
Gallop, 838 F.2d 105, 108 (4th Cir. 1988). We review the denial
of a motion to substitute counsel for abuse of discretion.
1
Indeed, at the sentencing hearing, Ms. Grady argued
(albeit briefly) for a sentence of “time served.” J.A. 108.
7
United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004). In
assessing this issue, we typically consider (1) the timeliness
of the motion, (2) the adequacy of the district court’s inquiry
into the defendant’s complaint about counsel; and (3) whether
the defendant and counsel experienced a total lack of
communication preventing an adequate defense; and we weigh these
factors against the district court’s interest in the orderly
administration of justice. Id. at 156-57. Applying this
analysis, we conclude that the district court did not abuse its
discretion.
Coming ten days before the scheduled April 9 trial date,
Quintero-Acosta’s attempt to substitute counsel has at least the
appearance of being untimely, and the district court apparently
believed that to be the case inasmuch as it viewed the effort as
a last-minute ploy. See generally Gallop, 838 F.2d at 108 (in
finding a motion for substitution made 5 days before trial to be
untimely, we stated that a “request for change in counsel cannot
be considered justifiable if it proceeds from a transparent plot
to bring about delay”). 2 Moreover, although the court was rather
brief with some of its observations, it did allow Ms. Grady and
2
We recognize that Ms. Grady explained that her effort to
maintain an effective relationship with Quintero-Acosta perhaps
prolonged the filing of the motions, and we have no basis to
question her veracity on this point.
8
Quintero-Acosta to speak regarding their relationship during the
motions hearing.
While these factors are, of course, important to our
analysis, we are ultimately persuaded to conclude that the
district court did not abuse its discretion by the fact that
Quintero-Acosta’s specific comments (written and oral) simply do
not establish that there was a total lack of communication
preventing an adequate defense. For example, although he was
not consistent on this point, Quintero-Acosta told the court
during the hearing that he wanted Ms. Grady to remain as his
attorney. Moreover, it is apparent from his comments that
Quintero-Acosta was dissatisfied with Ms. Grady primarily
because he believed that she lacked the requisite experience in
criminal immigration cases and, consequently, he did not like
her advice. This evidence is insufficient to establish
entitlement to appointment of new counsel. See generally United
States v. Anderson, 570 F.3d 1025, 1031 (8th Cir. 2009) (noting
that a defendant cannot obtain new counsel merely by showing
that he was frustrated with counsel’s performance or that he
disagreed with counsel’s tactical decisions).
We further note that although the district court denied the
motions, it nonetheless told Quintero-Acosta and Ms. Grady that
it would permit substitute counsel from the public defender’s
office to replace her without a further hearing. This was, in
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essence, a conditional grant of the motions. Additionally,
after the conclusion of the motions hearing, there is nothing in
the record to suggest that Quintero-Acosta experienced any
difficulty communicating with Ms. Grady; indeed, the record
strongly suggests the contrary. See generally United States v.
DeTemple, 162 F.3d 279, 288-89 (4th Cir. 1998) (in affirming the
denial of a pretrial motion for substitution of counsel, we
stated that “[a] total lack of communication simply does not
exist where the attorney and the client communicate
significantly during trial”).
In short, we find no abuse of discretion in the denial of
the motions relating to substitution of counsel. Because that
is the only basis on which Quintero-Acosta challenges his
conviction, we affirm the conviction. 3
III
We now turn to Quintero-Acosta’s argument that the district
court failed to adequately explain the basis for his sentence.
3
Quintero-Acosta arguably waived his right to pursue this
claim on appeal because he unconditionally pled guilty, and he
does not argue that the plea was involuntary or unknowingly
made. See United States v. Foreman, 329 F.3d 1037 1039 (9th
Cir. 2003) (“We conclude that the right to appeal a pre-plea
motion for substitution is waived by an unconditional guilty
plea, unless the plea itself is challenged.”). However, because
we conclude that the district court did not abuse its
discretion, we need not decide whether the claim is waived.
10
We review a criminal sentence for abuse of discretion, and our
initial task is to ensure that the district court committed no
significant procedural error. United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009). A district court’s failure to
adequately explain a chosen sentence – even one within the
guideline range - constitutes procedural error. Id. at 328,
330. 4 When a party presents nonfrivolous reasons for imposing a
sentence outside of the guideline range, “a district judge
should address the party’s arguments and ‘explain why he has
rejected those arguments.’” Id. at 328 (quoting Rita v. United
States, 551 U.S. 338, 127 S. Ct. 2456, 2468 (2007)).
Quintero-Acosta’s sentencing guideline range was 24-30
months, he requested a sentence “at or below” the low end of the
range and presented a nonfrivolous argument for such a sentence,
and the court sentenced him to 24 months. In doing so, the
court stated only that the sentence “is fair and reasonable and
is within the advisory guideline range, which in the exercise of
judicial discretion was found to be consistent with the
requirements of 18 U.S.C. section 3553(a).” J.A. 112. The
4
In Carter, we stated that “[r]egardless of whether the
district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an ‘individualized
assessment’ based on the particular facts of the case before
it.” 564 F.3d at 330.
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court did not explain or even address Quintero-Acosta’s request
for a sentence below the guideline range.
On this record, we conclude that the district court
committed procedural error by failing to adequately explain the
basis for Quintero-Acosta’s sentence. Accordingly, we vacate
the sentence and remand for further proceedings. 5
IV
Based on the foregoing, we affirm Quintero-Acosta’s
conviction, vacate his sentence, and remand for further
proceedings.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
5
At oral argument, the issue of mootness arose regarding
Quintero-Acosta’s appeal of his sentence because the record
provides some indication that he may have already served his 24-
month sentence. We directed the parties to file supplemental
briefs on this issue, and we now agree with them that Quintero-
Acosta’s appeal of his sentence is not moot.
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