                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4752


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOSE ARMANDO    QUINTERO-ACOSTA,   a/k/a    Jose   Manuel   Ibarra-
Reyes,

                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Affirmed in part; vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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       counsel       and    (2)   failing             to    provide    an    adequate

statement       of   reasons     for     his         sentence.          For     the    following

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.                   At that time, the district court

appointed       Carolyn    V.    Grady      of       the    Federal      Public       Defender’s

office     to    represent       him.       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     to    withdraw     and          have    new   counsel       appointed,

stating       that      her     relationship               with       Quintero-Acosta       had

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.     After some discussion, and with the parties’ consent, the

court    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          Quintero-Acosta’s         guilt.

                                                    5
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 Quintero-

Acosta 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    communicating       with    Quintero-Acosta            after     the    motions

hearing.      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.                              J.A. 85,

86, 90.     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             this    request      during     the

                                            6
sentencing hearing. 1              After Quintero-Acosta spoke briefly to the

court,        counsel      for    the    government            stated       that     he      should    be

sentenced within the guideline range and that there was no basis

for a sentence below the range.                          The court then imposed the 24-

month sentence.             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.

         Quintero-Acosta          timely       appealed.              As    noted,      he      contends

that         the   district       court        erred      by     denying       his        attempt      to

substitute          counsel       and     by       failing       to     provide         an      adequate

statement of reasons for the sentence.



                                                    II

     We first address the district court’s denial of Quintero-

Acosta’s motions to substitute counsel.                               “An indigent defendant

[such        as    Quintero-Acosta]            .    .     .    has     no    right        to    have    a

particular         lawyer        represent         him    and    can        demand      a      different

appointed          lawyer    only       with       good       cause.”        United          States    v.

Gallop, 838 F.2d 105, 108 (4th Cir. 1988).                                 We review the denial

of   a       motion   to    substitute          counsel         for    abuse       of     discretion.

         1
        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



      2
       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
Quintero-Acosta to speak regarding their relationship during the

motions hearing.

      While    these     factors     are,        of    course,        important    to     our

analysis,     we   are    ultimately        persuaded         to     conclude     that    the

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,      it    is   apparent           from    his    comments     that

Quintero-Acosta        was    dissatisfied            with     Ms.     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.                             This was, in

                                            9
essence,         a       conditional      grant   of     the    motions.        Additionally,

after the conclusion of the motions hearing, there is nothing in

the    record            to    suggest    that    Quintero-Acosta          experienced      any

difficulty           communicating         with    Ms.     Grady;    indeed,      the   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.                                Because that

is    the    only          basis     on   which    Quintero-Acosta          challenges      his

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.

      3
       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.



                                                  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.                 United States v. Carter, 564 F.3d

325,         328   (4th   Cir.      2009).     A   district      court’s      failure    to

adequately          explain     a   chosen    sentence    –   even     one    within    the

guideline range - constitutes procedural error.                              Id. at 328,

330. 4        When a party presents nonfrivolous reasons for imposing a

sentence           outside   of     the   guideline     range,    “a   district       judge

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

requirements of 18 U.S.C. section 3553(a).”                            J.A. 112.        The




         4
       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
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     on    the      foregoing,     we   affirm        Quintero-Acosta’s

conviction,      vacate    his      sentence,     and     remand    for     further

proceedings.

                                                           AFFIRMED IN PART;
                                                VACATED AND REMANDED IN PART




     5
       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 24-
month sentence.   We directed the parties to file supplemental
briefs on this issue, and we now agree with them that Quintero-
Acosta’s appeal of his sentence is not moot.


                                        12
