                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4382


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

XAVIER VIDAL JENNETTE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00147-BR)


Argued:   May 14, 2010                    Decided:   July 2, 2010


Before GREGORY, AGEE, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished opinion.       Judge Gregory
wrote the opinion, in which Judge Agee and Judge Davis joined.


ARGUED: Samuel A. Forehand, SAMUEL A. FOREHAND, PA, Raleigh,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

        Xavier Jennette (“Jennette”) appeals the sentence imposed

after he was convicted of aggravated identity theft and wire

fraud in the Eastern District of North Carolina.                   In particular,

Jennette argues that the district court abused its discretion in

denying his motion for substitute counsel.                    We hold that the

district court erred in denying Jennette substitute counsel for

his sentencing, and thus vacate his sentence and remand his case

to the district court for resentencing. 1



                                          I.

      In     October    2003,    Jennette       was   hired   to     work   as   the

facilities      security       officer    at     Object   Science      Corporation

(“OSC”), a government information technology contracting firm.

In   that     capacity,   he    managed    employees’     personal     information

that was sent to the Department of Defense in order to maintain

the employees’ security clearances.               He alone managed the access

to the secure personal information database.

      In November 2004, Jennette left OSC and moved to New Bern,

North       Carolina.      There,    he        reconnected    with    his    former

        1
        As we vacate Jennette’s sentence because he was denied
substitute counsel, we do not address the other two arguments he
raises:    that the district court clearly erred in applying
offense level enhancements and departing above the guidelines
range; and that delays in filing his transcript on appeal denied
him due process.



                                          2
girlfriend, Toya Sadler (“Sadler”).                  Through Sadler, Jennette

met Aiesha Horton (“Horton”).             In July 2005, he asked Horton to

obtain a mobile phone for him and provided her with a list of

names and social security numbers to use to set up the account.

The list contained the personal information of employees of OSC.

Jennette selected Kimberly Barrus’ name and information from the

list to use to obtain the phone.                Horton ended up procuring six

phones that day in Barrus’ name.

      Because     he    was     successful      in   using     another    person’s

information to obtain phones, Jennette found other ways to use

the list.       With Sadler, he acquired a Wal-Mart Discover Card

using Jessica Nelson’s information on July 10, 2005.                     They used

the   card   to    make       purchases    at    restaurants,     gas    stations,

furniture stores and Wal-Mart.                  After Jennette was arrested,

some of the furniture they purchased was found at his mother’s

house.

      Horton kept a copy of the list that Jennette had showed her

when she obtained the phones, and Anthony Wallace (“Wallace”),

her   boyfriend,       used    it   to    obtain     credit.      Wallace,    with

Jennette’s help, bought between fifty and seventy mobile phones,

which they resold on the street.                They made additional money by

calling the phones that they sold and asking for payment for the

phone service while posing as a Sprint representative.                    Finally,

Wallace and Jennette used the list to obtain credit at Target,


                                          3
Sears    and    Lowe’s   where    they   bought   electronics    and    tools   to

resell and pawn.          After Wallace was arrested, a printout from

the database used to store OSC employees’ personal information

was found in his car.

      Jennette was indicted with Sadler, Horton, and Wallace in a

eleven-count       indictment     charging     them   with   conspiracy     (Count

One), wire fraud (Counts Two through Eight), aggravated identity

theft (Counts Nine and Ten), and obstruction of justice (Count

Eleven).        Counts Six through Eight and Eleven were dismissed by

the     court    upon    motion   by     the   government    prior     to   trial.

Jeanette was tried by a jury.              During trial, he took the stand

in his own defense.          He explained that he often printed copies

of the list of OSC employees and their personnel information for

his weekly meetings with personnel managers.                  As for the list

found in Wallace’s car, Jennette acknowledged that he was the

one who printed it, but he denied any knowledge of the identity

theft scheme.        He stated that he did not know how the list was

removed from OSC and how Sadler and the others had come to

possess it.        He testified that the mobile phone and furniture

were both gifts from Sadler.             The jury found him guilty on all

of the remaining counts.

      Jennette was scheduled for sentencing on March 7, 2007.                   On

February 21, 2007, approximately two weeks before sentencing,

his counsel moved for a continuance and moved to withdraw from


                                          4
representation because “communications between counsel and the

defendant have broken down to the point that it would be best

for all parties if new counsel from outside the Office of the

Federal Public Defender represents Mr. Jennette.”                    J.A. 1057. 2

The government opposed the motion on the basis that the motion

to withdraw did not state a valid reason for withdrawal, it was

untimely,   and     the    continuance       would   burden    the   victims     who

wanted to testify at sentencing.               A week later, the government

made a motion for an upward departure from the guidelines on the

basis that the guidelines sentence understated the harm caused.

In particular, the government argued that Jennette harmed 124

current and former OSC employees who were not considered victims

under the guidelines.

     At sentencing, the district court took up the motion to

withdraw.        Defense counsel represented that when he met with

Jennette    to    go   over   the    presentence      report     (“PSR”),       their

communication      broke    down    so   significantly        that   he   did    not

believe they could cooperate going forward.               Counsel stated that

the root of the problem was that Jennette believed that he was

“cast aside” at trial, and as a result they had not even been

able to agree on what factual issues to challenge at sentencing.

The court asked Jennette for his view and he stated, “Well your

     2
       “J.A. __” refers to the joint appendix submitted by the
parties on appeal.



                                         5
honor, since, before, during, and after the trial, I have been

severely       dissatisfied           with     the        representation        that        I    have

received from counsel.”                J.A. 1080-81.                In particular, Jennette

was dissatisfied with counsel’s failure to raise certain issues

important       to    him       at   trial     and       their      inability    to    agree       on

objections to the PSR.                 Indeed, Jennette stated that they had

been    unable       to    even      review     the       PSR    because      they    could       not

communicate effectively.

       The court denied the motion and decided to give Jennette

the chance to make all of his objections to the PSR in open

court by going through it with the judge.                              Jennette represented

that he had already written down all of his objections, but that

the paper was at the jail because he was told that he could not

bring       anything       to   court.         As       the   judge    went    over    the       PSR,

defense counsel made objections for Jennette; Jennette did not

speak at all.              Defense counsel objected to all the sentencing

enhancements.             He also argued against the government’s motion

for upward departure on the basis that it was only speculation

as     to     the     harm       suffered,          because         not   every       employee’s

information          was    stolen       and        used      and     there    was     no       basis

whatsoever for fixing the loss at $1000 per person.                                   The court

continued the sentencing in order to have time to consider the

motion for upward departure.




                                                    6
       On    March     30,       2007,      the       court     reconvened          and   imposed

sentence.       The court granted the government’s motion for upward

departure      on    the    basis         that   Jennette       occupied       a    position     of

trust with respect to the victims and caused substantial harm to

at least thirty-nine victims, resulting in a guidelines range of

seventy-eight        to         ninety-seven          months.          Jennette       was      then

sentenced      to    ninety-seven           months      imprisonment           on    Counts     One

through      Five    and        twenty-four        months       on     Count       Nine   to    run

consecutively.         Jennette timely appealed.


                                                 II.

       The    denial       of    a    motion      for    substitution          of    counsel     is

reviewed for abuse of discretion.                         United States v. Corporan-

Cuevas, 35 F.3d 953, 956 (4th Cir. 1994).



                                                 III.

       Jennette      argues          on   appeal       that    his     sentence       should     be

vacated      because       the    district        court       abused    its    discretion        in

denying his motion for substitution of counsel.                               Both he and his

attorney represented that there had been a complete breakdown of

communication between them such that they had not even reviewed

the PSR together before sentencing.                       The government argues that

mere        allegations          of       dissatisfaction            with          counsel      are

insufficient to trigger the appointment of substitute counsel,



                                                  7
and if there was any error it was harmless because the district

court went over the PSR with the defendant.                          We, however, agree

with   Jennette       and     hold     that    the      district      court    abused      its

discretion in denying the motion.

                                              A.

       While a criminal defendant has a right to counsel of his

own choosing, that right is not absolute.                           Powell v. Alabama,

287 U.S. 45, 52 (1932); Sampley v. Attorney Gen. of N.C., 786

F.2d 610, 612 (4th Cir. 1986).                       In particular, a defendant’s

right to choose his own counsel is limited so as not to “deprive

the courts of the exercise of their inherent power to control

the administration of justice.”                     United States v. Gallop, 838

F.2d   105,     108    (4th      Cir.     1988).         It    then       follows    that    a

defendant’s      right      to     receive         substitute       counsel       after     the

court’s   initial       appointment           is   similarly        limited.        Thus,    a

defendant     must     show    good      cause     as   to    why    he    should    receive

substitute counsel.              Id.     In general, good cause exists when

denying       substitute         counsel       would      deny       the      defendant       a

constitutionally adequate defense.                      United States v. Johnson,

114    F.3d     435,     443      (4th     Cir.      1997)      (“A       total     lack    of

communication is not required.                 Rather an examination of whether

the extent of the breakdown prevents the ability to conduct an

adequate defense is the necessary inquiry.”); United States v.

Mullen, 32 F.3d 891, 897 (4th Cir. 1994).


                                               8
        The   district       court    has        discretion      to    decide    whether

substitution of counsel is proper.                  Gallop, 838 F.2d at 108.          In

making its decision, the district court must consider both the

defendant’s reason for seeking substitution and the government’s

interest in proceeding without a continuance.                         Morris v. Slappy,

461 U.S. 1, 11-12 (1983); United States v. Reevey, 364 F.3d 151,

157 (4th Cir. 2004).           In reviewing the district court’s decision

on a motion for substitution, this Court looks at three factors:

the “[t]imeliness of the motion; [the] adequacy of the court’s

inquiry       into    the    defendant’s          complaint;       and    whether    the

attorney/client conflict was so great that it had resulted in a

total    lack    of   communication         preventing     an     adequate      defense.”

Gallop, 838 F.2d at 108.

                                            B.

        The Gallop factors counsel that the district court abused

its   discretion      in    denying    the       motion   to     substitute.      First,

Jennette’s motion was timely.                 The motion was filed two weeks

before his sentencing was scheduled.                  Though at the time it was

filed there were only two days before the defendant’s objections

to the PSR were due, the motion was still timely because it gave

plenty of time for new counsel to be appointed and sentencing to

continue.       Compare Mullen, 32 F.3d at 896 (holding that a motion

for     substitution        filed    twenty-three         days     before    trial    was

timely), with United States v. Dukes, 1998 W.L. 188634, at *4


                                             9
(4th Cir. Apr. 21, 1998) (unpublished) (holding that a motion

for substitution filed ten days before the start of a multi-

defendant       trial        was    untimely).              The   government’s       argument

regarding      the     other       codefendants          and      coordination      with     the

victims       that      wished        to     make        a     statement       is    somewhat

disingenuous.          The government can point to no particular victim

that    it    anticipated          testifying,         and    indeed     no   testimony      was

presented at sentencing.                  Additionally, Jennette had never made

a    motion    for    substitution          or   a     continuance       before.         When   a

defendant makes a successive motion for continuance, the court

may often scrutinize his reasons for seeking the substitution

more carefully.          See Gallop, 838 F.2d at 108 (discussing how a

prior     motion       for     substitution           and    continuance        followed        by

another       motion    for        substitution         five      days     prior    to    trial

betrayed      the     defendant’s          motivation        to    delay      the   trial    and

rendered his request untimely).                       Instead, here Jennette’s motion

to substitute counsel was timely and was his only request to do

so.

        As to the second Gallop factor, the district court did make

an    adequate       inquiry       into    the    cause      of    the   problems        between

counsel and the defendant.                    Mullen, 32 F.3d at 896 (“When a

defendant       raises        a     seemingly          substantial         complaint       about

counsel, the judge has an obligation to inquire thoroughly into

the factual basis of defendant’s dissatisfaction.”                                  (citation


                                                 10
and internal quotation marks omitted)).                       The district judge here

asked both defense counsel and the defendant about the problems

they were experiencing, both in terms of cause and effects, and

received lengthy replies on the record.

     Although the district court adequately addressed the second

Gallop    factor,   the     extent       of     the    breakdown         in     communication

between    Jennette     and    his   counsel          was    so       significant      that     it

mandated substitution of counsel under the third factor.                                        As

stated above, the defendant must have good cause for seeking

substitute      counsel,      and    a    breakdown          in       communication       which

denies the defendant an adequate defense constitutes good cause.

Here,     the    evidence      before         the      district          court     was        that

communication     had    broken      down       between       the      defendant       and     his

counsel    so    significantly           that      they      could       not    come     to     an

agreement on what objections to make to the PSR, and indeed had

not even had the chance to go over it together.                                The government

argues that instead of a breakdown in communication, Jennette

only generally disagreed with how counsel had handled the trial.

While generalized disagreement with counsel is not a sufficient

reason for substitution, here the adverse impact was beyond mere

disagreement,       such      that        there        was        a     “total      lack        of

communication” in this case.                  Gallop, 838 F.2d at 109.                        Both

defense counsel and Jennette stated that they had not had a

chance to review the PSR together, and indeed had not really


                                              11
spoken since the trial concluded, certainly a fundamental step

for adequate representation at sentencing.

       We      must      therefore      determine        whether          that       lack    of

communication deprived the defendant of an adequate defense at

sentencing.           The government argues that because the district

judge went over the PSR with Jennette in open court, any error

in failing to substitute counsel was harmless.                              This argument

must fail for two reasons.               First, the district court must have

found a significant problem with communication between Jennette

and his counsel, as the district court conducted what otherwise

would have been counsel’s duty, the initial review of the PSR

with the defendant.               The district court’s assumption of this

role       demonstrated     that   it    had     found      merit    in    counsel’s        and

Jennette’s claim that there was a breakdown in communication.

Although laudable, going over the PSR with the district judge in

open       court   can   hardly    be    said    to    substitute         for    a   private,

attorney-client-privileged               conversation         with        counsel      before

sentencing even begins.                 Additionally, though defense counsel

did make objections, those objections cannot be said to have

been       effective     because   they    were       pro   forma    and        without     the

benefit of consultation with the defendant beforehand. 3                                    See



       3
       Indeed, counsel represented at oral argument that during
sentencing, had counsel and Jennette been able to work together,
(Continued)


                                            12
Mullen, 32 F.3d at 897 (discussing how the inability to confer

with the defendant before trial denied the defendant an adequate

defense).

     Therefore,     given    the     effects        of     the   breakdown    in

communication, the failure to substitute Jenette’s counsel was

an abuse of discretion.



                                     IV.

     For    the   reasons   detailed       above,     we    vacate   Jennette’s

sentence    and   remand    his    case    to   the      district    court   for

resentencing.

                                                           VACATED AND REMANDED




counsel likely would have introduced testimony from several
witnesses, including Jennette’s family and supervisors at work.



                                     13
