                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4045


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERTO PABLO GUTIERREZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00149-BR-1)


Submitted:   August 22, 2012            Decided:   September 6, 2012


Before FLOYD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Joshua L. Rogers, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Roberto Pablo Gutierrez was charged by a federal grand jury

sitting     in    the        Eastern       District          of     North       Carolina         with

conspiracy       to    distribute         and    to       possess    with       the    intent      to

distribute       500       grams   or     more       of     methamphetamine,           21     U.S.C.

§§ 841(a)(1) and 846.                   Following a jury trial, Gutierrez was

found guilty.          He was sentenced to 292 months’ imprisonment.                               On

appeal,    he    challenges         both       his    conviction         and    sentence.          We

affirm.

     First,      Gutierrez         contends          that    the    district          court      erred

when it refused to allow him to testify as to what he believed

would   happen        to    him    if    he     did    not    participate         in       the    drug

conspiracy.       He posits that such testimony was admissible under

Rule 803(3) of the Federal Rules of Evidence.                                     Because this

argument    was       raised       below,       our       review    is    for     an       abuse   of

discretion.       United States v. Abu Ali, 528 F.3d 210, 253 (4th

Cir. 2008).

     Hearsay generally is not admissible in evidence.                                       Fed. R.

Evid.   802.           However,         Rule    803(3)       provides          that    a    hearsay

statement is admissible if it is a statement of the declarant’s

then existing state of mind, provided the statement is not a

statement of memory or belief to prove the fact remembered or

believed.        The district court did not abuse its discretion in

excluding       the    purported         testimony          under    this       rule.         It   is

                                               - 2 -
unclear what statement of his Gutierrez sought to introduce.

Moreover, to the extent he sought to introduce the statements of

his coconspirators to demonstrate the beliefs he harbored, such

statements do not fall within the rule, because the “state of

mind   exception    .   .   .   refers     to    the   state   of    mind      of   the

declarant, not to the state of mind of the listener or hearer of

the statement.”       United States v. Arbolaez, 450 F.3d 1283, 1290

n.6 (11th Cir. 2006).           In any event, Gutierrez was allowed to

testify that he believed that, as a result of his agreement to

participate in the conspiracy, his life and the lives of his

family were in danger.           Thus, to the extent he was trying to

show   that    he   participated      in    the    conspiracy       out   of    fear,

Gutierrez was permitted to introduce such evidence.

       Second, Gutierrez contends that the district court erred

when it prohibited him from testifying about threats made to him

by   certain   drug     operatives.        He     posits   such     testimony       was

admissible under Rule 804(b)(3).                Because this argument was not

made below, our review is for plain error.                     United States v.

Lowe, 65 F.3d 1137, 1144 (4th Cir. 1995).

       Rule 804(b)(3) provides an exception to the hearsay rule

when an unavailable declarant has made a statement against penal

interest.      A statement is admissible under this exception if:

(1) the speaker is unavailable; (2) the statement is actually

adverse to the speaker’s penal interest; and (3) corroborating

                                      - 3 -
circumstances        clearly      indicate    the     trustworthiness     of     the

statement.         United States v. Bumpass, 60 F.3d 1099, 1102 (4th

Cir. 1995).         The party seeking to introduce the statement has

the    formidable      burden     of   establishing      these     prerequisites.

United States v. Blake, 571 F.3d 331, 350 (4th Cir. 2009).

       In this case, even if the first two factors were satisfied,

the corroborating circumstances factor clearly was not met.                      We

have   previously      listed     several    factors    relevant    in   assessing

corroboration of a statement sought to be admitted under Rule

804(b)(3):

       (1) whether the declarant had at the time of making
       the statement pled guilty or was still exposed to
       prosecution   for  making   the  statement,  (2)   the
       declarant’s motive in making the statement and whether
       there was a reason for the declarant to lie, (3)
       whether the declarant repeated the statement and did
       so consistently, (4) the party or parties to whom the
       statement was made, (5) the relationship of the
       declarant with the accused, and (6) the nature and
       strength of independent evidence relevant to the
       conduct in question.

Bumpass, 60 F.3d at 1102.

       In   this    case,   the   purported    drug    operatives    were   in    an

undisclosed location in Mexico, and there is no evidence that

they were exposed to prosecution for threatening Gutierrez while

allegedly holding him at gunpoint.              The men, who Gutierrez only

claims to have met once, were allegedly motivated by a desire to

have him transport drugs into the United States.                     There is no

evidence as to how many times the statements were repeated, and

                                       - 4 -
the only person to whom the drug operatives made the statements

was    Gutierrez.        The    Bumpass       factors      demonstrate      that      these

alleged threats are untrustworthy statements that were designed

to    buttress      Gutierrez’s       claim    that       he   did    not   voluntarily

participate in the conspiracy.                  Because Gutierrez cannot meet

the corroborating circumstances factor, there was no error, let

alone plain error, below.

       Third, Gutierrez contends that the district court failed to

adequately         inquire     into    the     circumstances         surrounding       his

request for substitute counsel.                 Our review of this contention

is for an abuse of discretion.                  United States v. Hackley, 662

F.3d 671, 685 (4th Cir. 2011).

       The   Sixth     Amendment      guarantees      a    criminal     defendant       the

right to “the Assistance of Counsel for his defence.”                                 U.S.

Const. amend. VI.             This right guarantees, among other things,

the    right   to     trial    counsel    of    one’s      choosing.        Faretta     v.

California, 422 U.S. 806, 835 (1975).                      Such right, however, is

not absolute and “must not obstruct orderly judicial procedure

and deprive 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).                           Consequently, in

reviewing the actions of the district court, we consider: (1)

“the    timeliness      of     the    motion”;    (2)      “the      adequacy    of    the

[district] court’s inquiry into the defendant’s complaint”; and

                                         - 5 -
(3) “whether the attorney/client conflict was so great that it

had   resulted    in      total   lack     of    communication          preventing         an

adequate    defense.”        Hackley,      662    F.3d     at    685    (citation       and

internal quotation marks omitted).

      Considering the timeliness of the request for new counsel,

we note that Gutierrez moved for new counsel during a sentencing

hearing that the district court had already continued at his

request.     As to the second factor, Gutierrez suggests that the

district     court     failed     to    investigate       his    complaint.            That

assertion is belied by the record.                The district court inquired

about Gutierrez’s complaint and asked his counsel whether he had

any problems with the representation.                  Counsel responded that he

was not moving to withdraw.              Gutierrez’s complaint was that his

counsel had not “represented [him] well.”                     (J.A. 422).       However,

he gave no basis for his expectations, nor did he specify what

counsel should have been doing that he was not.                        With regard to

the   breakdown      in    communication         factor,      there      was    no     such

breakdown.     Indeed, Gutierrez never suggested that the lack of

communication     prevented       an    adequate       defense.         Based     on    the

factors set forth in Hackley, we find no abuse of discretion.

      Finally,       Gutierrez         contends        that     his      counsel        was

constitutionally        ineffective       for     failing       to     object    to     the

probation    officer’s       finding     that     he    did     not    qualify       for    a

mitigating     role       adjustment      under    United        States        Sentencing

                                         - 6 -
Commission,      Guidelines       Manual,    § 3B1.2.        However,       ineffective

assistance      claims    are     more    appropriately       raised    in    a   motion

filed     pursuant        to    28       U.S.C.    § 2255,         unless     counsel’s

ineffectiveness         conclusively       appears     on    the    record.       United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                           After

review    of    the     record,    we     find    no   conclusive      evidence        that

counsel    rendered      ineffective       assistance,       and,    accordingly,       we

decline to consider the claim on direct appeal.

     For       the   reasons    stated      herein,     we   affirm    the     district

court’s judgment.          We dispense with oral argument because the

facts    and    legal    contentions       are    adequately       presented      in   the

materials       before    the     court    and    argument    would     not    aid     the

decisional process.

                                                                               AFFIRMED




                                          - 7 -
