UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. Brafford, 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Unpublished opinions are not binding precedent in this circuit.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 possessing 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 district 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 proceeding 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 timeliness 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 prosecution 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 contents 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 triggered 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 `federal arrest' triggers the running of the thirty day time period set forth

in § 3161(b)."). Although there is no indication that any federal officials participated in the Tennessee arrest in any way, McGill argues

that the arrest must have been for the federal charges, the North Carolina 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 Carolina 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 sentence, and, if the sentence -- . . . [has a] range [that] exceeds

24 months, the reason for imposing a sentence at a particular 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

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*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 sentencing 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 proceedings, 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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