UNPUBLISHED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 Manuel
Bautista, a/k/a Victor Manuel Hernandez, a/k/a Rutilo
Bautista-Carbajal, a/k/a Rotilo Bautista-Hernandez,
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 Decided: August 18, 2015
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 Bautista-
Hernandez’s Sixth Amendment right to counsel by denying his
motions to substitute counsel. Bautista-Hernandez has filed a
pro se supplemental brief, raising the same issue as counsel and
a myriad of additional challenges to his conviction and
sentence. We affirm.
We review a district court’s denial of a motion to
substitute counsel for abuse of discretion. 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).
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We turn first to the timeliness of Bautista-Hernandez’s
three motions to substitute counsel. Bautista-Hernandez’s first
motion was arguably timely, as it was made less than one month
after appointment of counsel and before the change-of-plea
hearing. The subsequent two motions, however, were untimely, as
they were made at the hearings originally scheduled for
Bautista-Hernandez’s change of plea. See United States 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 his reasons for requesting a
substitution of counsel. 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 Bautista-
Hernandez’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, the third factor—whether the conflict between
counsel and the defendant resulted in a total 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. Thus, the record establishes that counsel
worked to communicate 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. We
therefore affirm the district court’s judgment. This 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 served on Bautista-Hernandez. 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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