US v. Victor Bautista-Hernandez, No. 14-4326 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4326 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR MANUEL BAUTISTA-HERNANDEZ, a/k/a Victor Bautista, a/k/a Victor Manuel Hernandez, a/k/a Bautista-Carbajal, a/k/a Rotilo Bautista-Hernandez, Manuel Rutilo Defenant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:13-cr-00353-WO-1) Submitted: July 27, 2015 Before WYNN and Circuit Judge. DIAZ, Decided: Circuit Judges, and August 18, 2015 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Robert Ratliff, Mobile, Alabama, for Appellant. Graham Tod Green, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victor Manuel Bautista-Hernandez pled guilty, pursuant to a plea agreement, to illegal reentry by an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012). The district court sentenced Bautista-Hernandez to 48 months’ imprisonment, within his advisory Sentencing Guidelines range. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning whether the district court violated BautistaHernandez’s Sixth Amendment right motions to substitute counsel. to counsel by denying his Bautista-Hernandez has filed a pro se supplemental brief, raising the same issue as counsel and a myriad sentence. We of additional challenges to his conviction and We affirm. review a district court’s denial substitute counsel for abuse of discretion. of a motion United States v. Horton, 693 F.3d 463, 466 (4th Cir. 2012). In cases where a district court has denied a request by a defendant to replace one court-appointed lawyer with another court-appointed lawyer, this Court considers three factors to determine whether the initial appointment ceased to constitute Sixth Amendment assistance of counsel: (1) the timeliness of the motion; (2) the adequacy of the court’s subsequent inquiry; and (3) whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense. Id. at 466-67 (internal quotation marks omitted). 2 to We turn first to the timeliness three motions to substitute counsel. of Bautista-Hernandez’s Bautista-Hernandez’s first motion was arguably timely, as it was made less than one month after appointment hearing. they of counsel and before the change-of-plea The subsequent two motions, however, were untimely, as were made at Bautista-Hernandez’s the hearings change of originally plea. See scheduled United States for v. Blackledge, 751 F.3d 188, 194 (4th Cir. 2014) (concluding that motion filed three days before trial was untimely). Turning to the inquiry factor, the record reflects that the district court generously afforded Bautista-Hernandez multiple opportunities to articulate substitution of counsel. his reasons for requesting a During each of the three hearings, the court considered Bautista-Hernandez’s vague assertions that he did not trust, feel comfortable with, or like counsel. Ultimately, the court found no reasonable basis for BautistaHernandez’s distrust, no evidence of ineffective assistance of counsel, and that any breakdown in communication was caused by Bautista-Hernandez. We conclude that the court’s inquiry into the factual basis of Bautista-Hernandez’s dissatisfaction with counsel was sufficient. See United States v. Perez, 661 F.3d 189, 192 (4th Cir. 2011) (concluding that inquiry factor weighed in Government’s favor where district court asked defendant to 3 explain his request, considered defendant’s reasons, and found current counsel had effectively represented defendant). Finally, counsel and the third factor—whether the defendant resulted the in conflict a total between lack of communication preventing an adequate defense—also leads to the conclusion that the district court did not abuse its discretion. At the first hearing, counsel explained that she had already met with Bautista-Hernandez on two occasions to discuss discovery, identify possible defenses, and advise Bautista-Hernandez of his sentencing exposure. worked to communicate Thus, the record establishes that counsel with Bautista-Hernandez. Moreover, we agree with the district court that there is no evidence in the current record that counsel failed to provide an adequate defense. Accordingly, we conclude that the district court did not abuse its discretion (or violate Bautista-Hernandez’s Sixth Amendment right to counsel) by denying the motions to substitute counsel. After careful review, we also conclude that Bautista- Hernandez’s numerous challenges to his conviction and sentence in his pro se supplemental brief are without merit. In accordance with Anders, we have reviewed the record in this case and have found no meritorious grounds for appeal. therefore affirm the district court’s 4 judgment. This We court requires that counsel inform Bautista-Hernandez, in writing, of his right to petition the Supreme Court of the United States for further review. * If Bautista-Hernandez requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may renew his motion to withdraw from representation. Counsel’s motion must state that a copy thereof was Bautista-Hernandez. served on We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED * Because appointed counsel has an additional task to complete, we deny as premature his pending motion to withdraw from representation. 5
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