US v. Victor Bautista-Hernandez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to withdraw [999426114-2] Originating case number: 1:13-cr-00353-WO-1. Copies to all parties and the district court. [999642306]. [14-4326]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4326

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR
MANUEL
BAUTISTA-HERNANDEZ,
a/k/a
Victor
Bautista, a/k/a Victor Manuel Hernandez, a/k/a
Bautista-Carbajal, a/k/a Rotilo Bautista-Hernandez,

Manuel
Rutilo

Defenant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00353-WO-1)

Submitted:

July 27, 2015

Before WYNN and
Circuit Judge.

DIAZ,

Decided:

Circuit

Judges,

and

August 18, 2015

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Robert Ratliff, Mobile, Alabama, for Appellant.
Graham Tod
Green, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Victor Manuel Bautista-Hernandez pled guilty, pursuant to a
plea agreement, to illegal reentry by an aggravated felon, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2012).

The district

court sentenced Bautista-Hernandez to 48 months’ imprisonment,
within his advisory Sentencing Guidelines range.

Counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for appeal
but questioning whether the district court violated BautistaHernandez’s

Sixth

Amendment

right

motions to substitute counsel.

to

counsel

by

denying

his

Bautista-Hernandez has filed a

pro se supplemental brief, raising the same issue as counsel and
a

myriad

sentence.
We

of

additional

challenges

to

his

conviction

and

We affirm.
review

a

district

court’s

denial

substitute counsel for abuse of discretion.

of

a

motion

United States v.

Horton, 693 F.3d 463, 466 (4th Cir. 2012).
In cases where a district court has denied a request
by a defendant to replace one court-appointed lawyer
with
another
court-appointed
lawyer,
this
Court
considers three factors to determine whether the
initial
appointment
ceased
to
constitute
Sixth
Amendment assistance of counsel: (1) the timeliness of
the motion; (2) the adequacy of the court’s subsequent
inquiry; and (3) whether the attorney/client conflict
was so great that it had resulted in total lack of
communication preventing an adequate defense.
Id. at 466-67 (internal quotation marks omitted).

2

to

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We

turn

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first

to

the

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timeliness

three motions to substitute counsel.

of

Bautista-Hernandez’s

Bautista-Hernandez’s first

motion was arguably timely, as it was made less than one month
after

appointment

hearing.
they

of

counsel

and

before

the

change-of-plea

The subsequent two motions, however, were untimely, as

were

made

at

Bautista-Hernandez’s

the

hearings

change

of

originally

plea.

See

scheduled

United

States

for
v.

Blackledge, 751 F.3d 188, 194 (4th Cir. 2014) (concluding that
motion filed three days before trial was untimely).
Turning to the inquiry factor, the record reflects that the
district court generously afforded Bautista-Hernandez multiple
opportunities

to

articulate

substitution of counsel.

his

reasons

for

requesting

a

During each of the three hearings, the

court considered Bautista-Hernandez’s vague assertions that he
did

not

trust,

feel

comfortable

with,

or

like

counsel.

Ultimately, the court found no reasonable basis for BautistaHernandez’s distrust, no evidence of ineffective assistance of
counsel, and that any breakdown in communication was caused by
Bautista-Hernandez.

We conclude that the court’s inquiry into

the factual basis of Bautista-Hernandez’s dissatisfaction with
counsel was sufficient.

See United States v. Perez, 661 F.3d

189, 192 (4th Cir. 2011) (concluding that inquiry factor weighed
in Government’s favor where district court asked defendant to

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explain his request, considered defendant’s reasons, and found
current counsel had effectively represented defendant).
Finally,
counsel

and

the

third

factor—whether

the

defendant

resulted

the
in

conflict
a

total

between
lack

of

communication preventing an adequate defense—also leads to the
conclusion that the district court did not abuse its discretion.
At the first hearing, counsel explained that she had already met
with Bautista-Hernandez on two occasions to discuss discovery,
identify possible defenses, and advise Bautista-Hernandez of his
sentencing exposure.
worked

to

communicate

Thus, the record establishes that counsel
with

Bautista-Hernandez.

Moreover,

we

agree with the district court that there is no evidence in the
current

record

that

counsel

failed

to

provide

an

adequate

defense.
Accordingly, we conclude that the district court did not
abuse

its

discretion

(or

violate

Bautista-Hernandez’s

Sixth

Amendment right to counsel) by denying the motions to substitute
counsel.

After careful review, we also conclude that Bautista-

Hernandez’s numerous challenges to his conviction and sentence
in his pro se supplemental brief are without merit.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious grounds for appeal.
therefore

affirm

the

district

court’s

4

judgment.

This

We

court

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requires that counsel inform Bautista-Hernandez, in writing, of
his right to petition the Supreme Court of the United States for
further review. *

If Bautista-Hernandez requests that a petition

be filed, but counsel believes that such a petition would be
frivolous, then counsel may renew his motion to withdraw from
representation.

Counsel’s motion must state that a copy thereof

was

Bautista-Hernandez.

served

on

We

dispense

with

oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

*

Because appointed counsel has an additional task to
complete, we deny as premature his pending motion to withdraw
from representation.

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