UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5099

RONALD MCGILL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-94-67)

Argued: June 7, 1996

Decided: August 2, 1996

Before WILKINSON, Chief Judge, and HAMILTON and LUTTIG,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. William A. Braf-
ford, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,
Charlotte, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Ronald McGill pleaded guilty to three counts of possess-
ing implements for making counterfeit securities, and was sentenced
at the top of the guideline range to 63 months. McGill herein appeals,
claiming that the district court improperly denied his motion to
change counsel, that the prosecution's failure to indict him until April
1994 constituted a violation of the Speedy Trial Act, and that the dis-
trict court failed to provide an adequate explanation of its reasons for
sentencing him as it did. Finding no error, we affirm.

I.

Immediately before trial, McGill made a motion for a change of
counsel because he had complaints about his court-appointed lawyer,
Thomas Will. After conducting a hearing, the district court denied his
motion and offered him the choice between proceeding pro se or pro-
ceeding with Will as his counsel. McGill chose to retain Will, and
Will continued to represent him -- without further incident -- for the
next three months, through McGill's guilty plea and sentencing.

Although McGill apparently believes that the appropriate standard
of review for the district court's decision is a question of "first
impression," see Appellant's Br. at 9, it is well settled in this circuit
that a district court's decision whether or not to grant a motion to
change counsel is reviewable only for abuse of discretion. United
States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). In considering
whether a district court has abused its discretion in denying a motion
to substitute counsel, we consider, generally, three factors: the timeli-
ness of the motion, the adequacy of the court's inquiry, and the degree
to which the attorney/client relationship had so deteriorated as to
make it totally lacking communication. Id.

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Here, McGill's motion was filed twelve days before trial. The court
held a hearing on the motion, during which it asked McGill the
grounds of his disagreement, asked the prosecution for its views, and
asked McGill's appointed lawyer Thomas Will, as well. The prosecu-
tion stated, "I believe he is simply complaining about the fact that his
attorney has not got him out on bond and that's why he wants a new
lawyer." J.A. at 17. The court listened to McGill's complaints. McGill
complained that Will did not contact McGill's lawyer in his state
prosecution, that he did not give McGill a copy of the sentencing
guidelines, that he did not let him inspect the government's discovery,
and that he had not talked with him very much about the case. The
court then heard Will's explanations. Will stated that, although he did
not give McGill a copy of the search warrant, he discussed its con-
tents with him; that McGill's complaint that Will had not obtained a
detention hearing for him was groundless because he was not entitled
to one; and that he did not give McGill a copy of the sentencing
guidelines because he did not own one (he used the library's). J.A. at
18. After hearing McGill's complaints and Will's explanations, the
district court ultimately concluded that inquiry"indicate[d] that [Will]
[was] a very competent lawyer who has handled many of these
cases." J.A. at 27. And, although Will stated that his relationship with
McGill had become "unpleasant," he did not say that communication
had broken down altogether. Under these circumstances, we believe
the district court did not abuse its discretion in denying McGill's
motion for substitution of counsel.

II.

In January 1993, federal and state police obtained a search warrant
and searched McGill's motel room in Charlotte, North Carolina,
recovering computers and equipment used to make phony checks and
birth certificates. McGill was then arrested on state forgery charges.
One year later, in January 1994, McGill was arrested on a fugitive
warrant in Tennessee. McGill alleges that this Tennessee arrest was
really for the federal charges at issue here, and so it should have trig-
gered the 30-day period for indictment under the Speedy Trial Act,
18 U.S.C. § 3161(b). McGill was indicted in the Western District of
North Carolina on the instant charges on April 7, 1994, and brought
from Tennessee to Charlotte on a writ of habeas corpus ad
prosequendum on May 23.

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We reject McGill's claim, as did the district court, because there
is no persuasive evidence that the Tennessee arrest was actually on
these federal charges. See United States v. Benitez, 34 F.3d 1489,
1493-94 (9th Cir.), cert. denied, 115 S. Ct. 1268 (1995) ("Only a `fed-
eral arrest' triggers the running of the thirty day time period set forth
in § 3161(b)."). Although there is no indication that any federal offi-
cials participated in the Tennessee arrest in any way, McGill argues
that the arrest must have been for the federal charges, the North Caro-
lina state charges having been dismissed because the 1993 search
warrant lacked probable cause. This argument is meritless, however,
because (as McGill neglects to mention), although the warrants were
found to be without probable cause on February 5, 1993, a North Car-
olina state grand jury indicted McGill two weeks later, on February
22, 1993, and the charges remained pending until June 17, 1994,
when they were dismissed because of the pending federal prosecution.
Moreover, the affidavit on the Tennessee fugitive warrant stated that
it was for conduct that occurred in Knox County, Tennessee, not
North Carolina, where the conduct underlying the federal charges
(and the North Carolina state charges) occurred.* J.A. at 15. And,
most importantly, McGill was convicted in Tennessee of forgery as
a result of the January 1994 arrest, J.A. at 74, so McGill's claim that
that arrest was really a ruse for a federal arrest is baseless.

III.

Finally, McGill argues that the district court failed to follow the
mandate of 18 U.S.C. § 3553(c)-(c)(1), which provides that,

          [t]he court, at the time of sentencing, shall state in open
          court the reasons for the imposition of the particular sen-
          tence, and, if the sentence -- . . . [has a] range [that] exceeds
          24 months, the reason for imposing a sentence at a particu-
          lar point within the range.

Id. (emphasis added). The government concedes that the district court
failed to give any explanation in sentencing McGill to the high end
_________________________________________________________________
*The affidavit also notes that McGill is wanted by Secret Service from
North Carolina (which is crossed out by hand and replaced with "South
Carolina").

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of the guideline range (63 months), but argues that this court lacks
jurisdiction to address the issue, because there was no legal error in
imposing the sentence. See 18 U.S.C. § 3742(a)(1)-(2) (limiting
reviewability of sentences to sentences "imposed in violation of law"
or those "imposed as a result of an incorrect application of the sen-
tencing guidelines"); United States v. Jones, 18 F.3d 1145, 1151 n.4
(4th Cir. 1994) (reserving question of reviewability of failure to
explain reasons under section 3553(c)(1)).

Even assuming arguendo that the district court's failure to explain
its reasons is reviewable, because McGill did not object or request an
explanation at sentencing, J.A. at 60-62, the court's failure to explain
its reasons could only be reversed for plain error. Because it is not at
all apparent that the court committed error at all (considering that the
sentencing range here -- the twelve month difference between the 51
months and the 63 months representing the low and the high ends of
the guideline range, respectively -- did not exceed 24 months), and
because, in any event, the alleged error does not affect substantial
rights or seriously affect the fairness and integrity of judicial proceed-
ings, we conclude that the district court did not commit plain error.

CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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