UNPUBLISHED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 IbarraReyes, 

 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Affirmed in part; vacated and remanded in part by unpublished 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Unpublished opinions are not binding precedent in this circuit. 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 QuinteroAcosta 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 QuinteroAcosta’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 
12 

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 QuinteroAcosta’s appeal of his sentence is not moot.