                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-13246                ELEVENTH CIRCUIT
                                                               APRIL 5, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                                 CLERK

                 D. C. Docket No. 07-00107-CR-ORL-28-GJK

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

NESTOR QUINONES,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (April 5, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Nestor Quinones appeals his conviction and sentence for conspiracy to
possess with intent to distribute five or more kilograms of cocaine, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. On appeal, Quinones argues that the

district court: (a) erred when it failed to inquire into the factual basis of his pro se

motion to substitute counsel; (b) clearly erred when it found that he was

accountable for at least 15 kilograms of cocaine; (c) plainly erred by ordering him

to pay Ruth Fricke restitution; and (d) erred by issuing him a U.S.S.G. § 3B1.1(b)

enhancement for being a manager or supervisor in criminal activity that had five or

more participants. We address each of these contentions in turn.

                                I. Motion to Substitute

       An indigent criminal defendant has a right to be represented by counsel, but

“he does not have a right to be represented by a particular lawyer, or to demand a

different appointed lawyer except for good cause.” United States v. Young, 482

F.2d 993, 995 (5th Cir. 1973). “Unless a Sixth Amendment violation is shown,

whether to appoint a different lawyer for an indigent criminal defendant who

expresses dissatisfaction with his court-appointed counsel is a matter committed to

the sound discretion of the district court.” Id. In order to warrant a substitution of

counsel, “the defendant must show good cause, such as a conflict of interest, a

complete breakdown in communication or an irreconcilable conflict which leads to

an apparently unjust verdict.” Id. A district court’s failure to inquire into the



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factual basis of a defendant’s dissatisfaction “normally” constitutes “reversible

error.” Id.

      In Young, we held that reversal was not required after considering the record

as a whole. Id. at 995-96. The defendant in that case moved for substitution of

counsel because he alleged that his attorney was disclosing confidential matters to

the prosecution. Id. at 995. The district court rejected that argument based on its

professional acquaintance with the defense attorney. Id. We held that reversal was

not required because the defense attorney had represented the defendant during his

first trial, a successful direct appeal, and second trial. Id. at 994, 996. We noted

that the defendant only expressed dissatisfaction with his attorney during the

second trial. Id. at 994. Additionally, the second trial was “a virtual duplicate of

the first” because the defense strategy was the same for both. Id. at 996. We

rejected the defendant’s argument that his distrust of his attorney made effective

representation impossible because the record did not demonstrate an irreconcilable

conflict between he and his attorney or any breakdown of communication between

them. Id. at 996. We ultimately concluded that the district court did not abuse its

discretion in refusing to appoint the defendant a new attorney. Id.

      In this case, although the district court failed to inquire into Quinones’s

motion to substitute counsel based on allegations that his attorney had failed to



                                           3
bring an interpreter to several of their meetings prior to sentencing, the record as a

whole demonstrates no reversible error. The record demonstrates that Quinones’s

former attorney made several objections to the presentence investigation report

(“PSI”) and argued those objections at sentencing. During sentencing, that

attorney succeeded in reducing Quinones’s base offense level. Additionally,

Quinones did not voice any dissatisfaction with his attorney when the district court

gave him an opportunity to address the court at sentencing. Moreover, with the

exception of the restitution claim, Quinones with new counsel, now appeals the

same issues raised by former counsel. Accordingly, we find no reversible error.

                                 II. Drug Quantity

      We review a district court’s determination of the quantity of drugs used to

establish a base offense level for sentencing purposes for clear error. United States

v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). When a defendant objects to his

base offense level, the government must establish the quantity of drugs by a

preponderance of the evidence. United States v. Butler, 41 F.3d 1435, 1444 (11th

Cir. 1995). Sentencing may be based on “fair, accurate, and conservative estimates

of drugs attributable to a defendant,” but cannot be based on calculations that are

“merely speculative.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.

1998). When a district court’s decision on drug quantity attribution is based on



                                           4
testimony of witnesses who appear before it, great deference is given to the court’s

assessment of the credibility and evidentiary content of that testimony. United

States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995).

       In this case, the government established by a preponderance of the evidence

that Quinones was accountable for at least 15 kilograms of cocaine. Agent Karl

Weiss of the Drug Enforcement Administration testified that, during Quinones’s

participation in the conspiracy, he received approximately nine to ten deliveries

containing an average of two to three kilograms of cocaine each. Based on a fair

and conservative estimate of nine deliveries at two kilograms each, Quinones was

responsible for at least 18 kilograms of cocaine.

                                    III. Restitution

       Objections or arguments that are not raised before the district court are

reviewed for plain error. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.

2007). To establish plain error, a defendant must show: (1) error, (2) that is plain,

(3) that affects substantial rights, and (4) that the error seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Id.

       Pursuant to U.S.S.G. § 5E1.1, when there is an identifiable victim, the

district court shall enter a restitution order for the full amount of the victim’s loss,

if authorized by 18 U.S.C. § 3663. U.S.S.G. § 5E1.1(a)(1). Under 18 U.S.C.



                                             5
§ 3663, the Victim and Witness Protection Act, the district court may order a

defendant convicted under 21 U.S.C. § 841 to make restitution to any victim of

such offense. 18 U.S.C. § 3663(a)(1)(A). The term “victim” means a “person

directly and proximately harmed as a result of the commission of an offense . . .

including, in the case of an offense that involves as an element a . . .

conspiracy, . . . any person directly harmed by the defendant’s criminal conduct in

the course of the . . . conspiracy.” Id. at § 3663(2). Directly and proximately

means that “a particular loss would not have occurred but for the conduct

underlying the offense of conviction” and the “causal connection between the

conduct and the loss is not too attenuated (either factually or temporally).” United

States v. Robertson, 493 F.3d 1322, 1334 (11th Cir. 2007).

      In determining whether to order restitution under § 3663, the district court

shall consider “the financial resources of the defendant, the financial needs and

earning ability of the defendant and the defendant’s dependents, and such other

factors as the court deems appropriate.” 18 U.S.C. § 3663(a)(1)(B)(i)(II).

Although the district court is required to evaluate the defendant’s financial

condition and ability to pay before determining a restitution amount, the district

court is not required to make factual findings whenever it imposes a restitution

order “if the appellate record provides sufficient reasons for the decision to order



                                            6
full restitution.” United States v. Remillong, 55 F.3d 572, 574, 576 (11th Cir.

1995).

         In United States v. Exarhos, 135 F.3d 723, 731 (11th Cir. 1998), we held

that there was no error with respect to a district court’s restitution order for a

defendant who failed to object below to the restitution order. Id. In that case, the

PSI had indicated that the defendant might not be able to pay a fine. Id. The

district court did not impose a fine but did order restitution in the amount of

$120,000 to be joint and severally liable with his codefendant. Id. There, the

codefendant preserved his objection to the restitution order, but we held that the

district court had considered the financial needs of the defendant when the

appellate record demonstrated that the district court had information about the

extensive loss of the victims, the codefendant’s limited resources and inability to

pay, and the codefendant’s past employment. Id. We stated that “while the district

court might well have made more detailed findings to assist us in our task, the

court did at least ‘consider’ the necessary factors.” Id. at 732. We reiterated that a

sentencing court was “not prohibited from imposing restitution even on a

defendant who [was] indigent at the time of sentencing so long as the record

indicate[d] that the court considered the defendant’s future ability to pay.” Id.

         In this case, the district court did not plainly err by finding that Ruth Fricke



                                              7
was a victim because, had it not been for the underlying cocaine conspiracy, she

would not have paid $20,000 to Quinones. Additionally, based on the appellate

record, the district court did consider Quinones’s financial ability to pay restitution

because the court possessed detailed information about his financial status and

inability to pay a fine, acknowledged Quinones’s limited financial status,

considered Quinones’s future ability to pay restitution based on his Bureau of

Prisons employment, and stated that it would adjust the payment terms upon

information that there was a material change in Quinones’s ability to pay.

Accordingly, there was no error.

                               IV. Role Enhancement

      We review a district court’s application of the guidelines to the facts de novo

and all factual findings for clear error. United States v. Kinard, 472 F.3d 1294,

1297 n.3 (11th Cir. 2006).

      Under U.S.S.G. § 3B1.1, a defendant receives a three-level increase in his

offense level if “the defendant was a manager or supervisor (but not an organizer

or leader) and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(b). A “participant” is a “person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” Id. at § 3B1.1(b), comment. (n.1). The defendant must have been a



                                           8
manager or supervisor of “one or more other participants.” Id. at § 3B1.1(b),

comment. (n.2). To distinguish between a leadership and organization role from

one of “mere management or supervision,” the court should consider the following

factors: (a) the exercise of decision making authority, (b) the nature of participation

in the commission of the offense, (c) the recruitment of accomplices, (d) the

claimed right to a larger share of the fruits of the crime, (e) the degree of

participation in planning or organizing the offense, (f) the nature and scope of the

illegal activity, and (g) the degree of control and authority exercised over others.

Id. at § 3B1.1(b), comment. (n.4).

      In United States v. Perry, 340 F.3d 1216, 1217-18 (11th Cir. 2003), we held

that an aggravating role enhancement was appropriate where the defendant actively

recruited two individuals to transport drugs, arranged the recruited individuals to

transport drugs, paid at least one of those individuals for transporting cocaine, and,

was in turn, paid for recruiting and supervising individuals in the drug conspiracy.

Id.

      In this case, the district court did not err by finding that Quinones was a

manager or supervisor over two juveniles in the conspiracy. There were at least

five participants in Quinones’s portion of the conspiracy, Quinones admitted to

recruiting the juveniles to use their addresses, Agent Weiss testified that Quinones



                                            9
had directed one of the juveniles to sign for packages, accept them, and deliver

them to him, and Quinones paid the juveniles for their roles in the conspiracy.

Accordingly, we affirm.

      AFFIRMED.




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