UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICOLAS VALENCIA DUARTE, a/k/a Juan Ramirez
Portillo,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00201-WLO)
Submitted: August 30, 2006 Decided: September 21, 2006
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Randall Stuart Galyon, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nicholas Valencia Duarte appeals his conviction and
sentence following a guilty plea to conspiracy to distribute 50
grams or more of methamphetamine, a quantity of a mixture and
substance containing a detectable amount of cocaine hydrochloride,
and 50 kilograms of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B) and 846 (2000). Duarte’s attorney on
appeal has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious issues for
appeal, but raising as a potential issue whether the district court
abused its discretion when it denied trial counsel’s motion to
withdraw. Duarte was advised of his right to file a pro se
supplemental brief, but has not done so. Finding no reversible
error, we affirm.
Whether a motion for substitution of counsel should be
granted is within a trial court’s discretion. United States v.
Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). An indigent
defendant has no right to a particular attorney and can demand new
counsel only for good cause. See United States v. Gallop, 838 F.2d
105, 108 (4th Cir. 1988). Further, a defendant does not have an
absolute right to substitution of counsel. United States v.
Mullen, 32 F.3d 891, 895 (4th Cir. 1994). In evaluating whether
the trial court abused its discretion in denying counsel’s motion
to withdraw, this court must consider: (1) the timeliness of the
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motion; (2) the adequacy of the court’s inquiry; and (3) whether
the attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate defense.
Gallop, 838 F.2d at 108.
In this case, Duarte filed his motion only two weeks before
sentencing, and after pleading guilty. The district court
conducted an adequate inquiry into Duarte’s reasons for requesting
his counsel withdraw. Duarte’s sole reason for wanting new counsel
was that his counsel had advised him that the letter from a witness
indicating that Duarte had nothing to do with the drugs was not
going to help him. However, this is not sufficient to warrant
Duarte being appointed or retaining new counsel. See United
States v. Johnson, 114 F.3d 435, 443-44 (4th Cir. 1997) (holding
that disagreement with counsel concerning trial strategy and
tactics does not constitute a breakdown in communications
sufficient to warrant new counsel). Duarte had no other complaints
about his counsel and, in fact, stated that if he were to proceed
to trial he would have counsel represent him. Counsel indicated
that she was willing and capable to continue representing Duarte.
We find no evidence in the record that the conflict between Duarte
and counsel resulted in a total lack of communication preventing
Duarte from receiving adequate representation. We therefore
conclude the district court did not abuse its discretion in denying
counsel’s motion to withdraw.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Duarte’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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