US v. Jose Quintero-Acosta

Filing 920091203

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4752

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOSE ARMANDO Reyes, QUINTERO-ACOSTA, a/k/a Jose Manuel Ibarra-

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Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 statement counsel of and (2) failing to provide For an the adequate following

reasons

for

his

sentence.

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. appointed office to Carolyn V. Grady him. of At that time, the district court the Federal Public Defender's

represent

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 that to her withdraw and have with new counsel appointed, had

stating

relationship

Quintero-Acosta

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. court After some discussion, and with the parties' consent, the 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 5 Quintero-Acosta's guilt.

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 QuinteroAcosta 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 hearing. communicating with Quintero-Acosta after the motions

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. 86, 90. J.A. 85,

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 6 this request during the

sentencing hearing. 1 court, counsel for

After Quintero-Acosta spoke briefly to the the government stated that he should be

sentenced within the guideline range and that there was no basis for a sentence below the range. month sentence. The court then imposed the 24-

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. timely court and by appealed. erred by As noted, his he contends to

Quintero-Acosta that the district counsel

denying to

attempt an

substitute

failing

provide

adequate

statement of reasons for the sentence.

II We first address the district court's denial of QuinteroAcosta's motions to substitute counsel. [such as Quintero-Acosta] lawyer lawyer represent only with . . him good . has "An indigent defendant no right demand to a have a

particular appointed

and

can

different States v.

cause."

United

Gallop, 838 F.2d 105, 108 (4th Cir. 1988). of a
1

We review the denial abuse of discretion.

motion

to

substitute

counsel

for

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

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

2

Quintero-Acosta to speak regarding their relationship during the motions hearing. While analysis, these we are factors are, of course, to important conclude to that our the

ultimately

persuaded

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, was it is apparent from Ms. his comments that

Quintero-Acosta

dissatisfied

with

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. 9 This was, in

essence,

a

conditional

grant

of

the

motions.

Additionally,

after the conclusion of the motions hearing, there is nothing in the record to suggest that with Quintero-Acosta Ms. Grady; experienced the any

difficulty

communicating

indeed,

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. is the only basis on which Quintero-Acosta Because that his

challenges

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. 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.
3

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. 325, 328 (4th Cir. a 2009). chosen United States v. Carter, 564 F.3d A district ­ court's even one failure within to the

adequately

explain

sentence

guideline range - constitutes procedural error. 330. 4

Id. at 328,

When a party presents nonfrivolous reasons for imposing a outside of the guideline range, "a district judge

sentence

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 The

requirements of 18 U.S.C. section 3553(a)."

J.A. 112.

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. 11

4

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 conviction, proceedings. AFFIRMED IN PART; VACATED AND REMANDED IN PART on the foregoing, his we affirm and Quintero-Acosta's for further

vacate

sentence,

remand

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 24month sentence. We directed the parties to file supplemental briefs on this issue, and we now agree with them that QuinteroAcosta's appeal of his sentence is not moot. 12

5