[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1982
UNITED STATES,
Appellee,
v.
EARL PERSON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Cyr and Boudin, Circuit Judges,
______________
and Burns,* Senior District Judge.
_____________________
____________________
James A. Ruggiero on brief for appellant.
_________________
Lincoln C. Almond, United States Attorney, Margaret E. Curran,
__________________ ___________________
Assistant United States Attorney, Kenneth P. Madden, Assistant United
_________________
States Attorney, and Lawrence D. Gaynor, Assistant United States
___________________
Attorney, on brief for appellee.
____________________
June 8, 1993
____________________
_____________________
*Of the District of Oregon, sitting by designation.
Per Curiam. Defendant Person was convicted by a
Per Curiam
___ ______
jury on one count of conspiracy to distribute cocaine and
two counts of distribution of cocaine. Person appeals the
district court's denial of his request to change attorneys
and the court's failure to depart downward from the career
offender sentencing guideline range.
Substitution of counsel.
_______________________
On March 16, 1992, the court impaneled ten
jurors;1 impanelment was continued when the jury pool was
exhausted. At some point during the proceeding, Person
informed the court he wanted to retain private counsel.2
Impanelment was continued to April 2, 1992, the day of
trial. On the day of trial,3 Person informed the court his
family could not afford to pay an attorney and requested a
____________________
1Although no transcript of the March 16 proceeding was
submitted to this panel, these facts were summarized to the
district court by Person as reflected in the transcript of
the proceedings held April 2, 1992, and by the parties in
their respective briefs. The parties do not dispute these
facts.
2Neither the parties nor the transcript of April 2 indicate
whether Person made specific complaints about his court-
appointed counsel during the March 16 proceeding.
3Although the transcript is murky on the exact sequence of
events April 2, Person's request to substitute counsel
occurred either immediately prior to, during, or following
the completion of jury impanelment on the day of trial.
-2-
2
change of counsel because of statements purportedly made by
Thomas Grasso, Person's court-appointed attorney, after the
March 16 proceeding. At the same time, Grasso moved to
withdraw on the ground that his relationship with his client
was antagonistic.4 Person contends the court denied his
request to change counsel without adequate inquiry.
The Sixth Amendment to the United States
Constitution guarantees assistance of counsel to a person
accused of criminal conduct. See Gideon v. Wainwright, 372
___ ____________________
U.S. 335, 342-45 (1963). The purpose of providing, when
necessary, court-appointed counsel is to ensure criminal
defendants receive a fair trial. Strickland v. Washington,
________________________
466 U.S. 668, 689 (1984). As this court has noted before,
an accused has a right to be represented by counsel; he does
not, however, have a right "to demand a different appointed
lawyer except for good cause." United States v. Allen, 789
______________________
F.2d 90, 92 (1st Cir.), cert. denied, 479 U.S. 846 (1986).
_____ ______
See also United States v. Richardson, 894 F.2d 492, 496 (1st
___ ____ ___________________________
Cir. 1990) ("The right of an accused to counsel of his
choice ... is not absolute"). "[T]he appropriate inquiry
focuses on the adversarial process, not on the accused's
____________________
4Grasso stated he was "renewing" his motion to withdraw as
counsel for defendant. Again, the record does not reflect
his first motion, but the parties do not dispute this fact.
-3-
3
relationship with his lawyer as such." Wheat v. United
________________
States, 486 U.S. 153, 159 (1988) (quoting United States v.
______ ________________
Cronic, 466 U.S. 648, 657 n.21 (1984)).
______
We review the district court's denial of a request
for substitution of court-appointed counsel for abuse of
discretion. Richardson, 894 F.2d at 496.
__________
In evaluating a district court's denial of a
request for substitution of counsel, we consider the
timeliness of the request, whether the district court
adequately inquired into the complaint, and whether the
attorney-client conflict was great enough to prevent an
adequate defense. Allen, 789 F.2d at 92. The record
_____
reflects Person's request occurred the day trial was to
begin (in other words, in an untimely fashion at the
eleventh hour); Person had adequate opportunity to persuade
the district court that Person's complaints about his
attorney constituted good cause for substitution of
counsel;5 and the district court appropriately determined
the conflict between Person and his attorney was not great
enough to prevent an adequate defense. After considering
____________________
5We note Person did not complain that Grasso was unprepared
for trial and that Grasso presented the court with
additional voir dire questions, indicating some degree of
preparation.
-4-
4
each of these factors, we find the district court did not
abuse its discretion when it denied Person's request to
change court-appointed counsel.
Downward departure from career offender guideline
__________________________________________________
range.
_____
Before sentencing, the court directed counsel to
brief the issue of whether the court had the authority to
depart downward from the sentencing guideline range if
defendant were a career offender. Person contends the court
incorrectly concluded it did not have the authority to
depart downward and, as a result, sentenced Person within
the career offender guideline range. We do not agree with
Person's contention.
A sentencing court's decision not to depart
downward is ordinarily unappealable, United States v.
__________________
Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992), unless the
_______
decision is based on a "mistaken view that it lacks the
legal authority to consider a departure." United States v.
________________
Romolo, 937 F.2d 20, 22 (1st Cir. 1991).
______
At sentencing, the district court found Person to
be a career offender. Although the First Circuit has not
directly addressed whether a court may depart downward when
sentencing a career offender, the district court noted those
-5-
5
courts that have departed downward from the career offender
guideline range primarily "did so when they found ... the
career offender status over-represented the defendant's
criminal history." See, e.g., United States v. Beckham, 968
___ ____ ________________________
F.2d 47, 54 (D.C.Cir. 1992); United States v. Bowser, 941
________________________
F.2d 1019, 1023-24 (10th Cir. 1991); United States v.
__________________
Pinckney, 938 F.2d 519, 521 (4th Cir. 1991); United States
________ ______________
v. Lawrence, 916 F.2d 553, 554-55 (9th Cir. 1990). See
____________ ___
generally United States Sentencing Guidelines 4A1.3
_________
(Policy Statement). After careful consideration of Person's
criminal history and the circumstances of his criminal
conduct, the district court concluded it would not depart
downward in this instance.
We find the district court did not sentence
Person within the career offender guideline range based on
an erroneous determination that it lacked authority to
consider a downward departure. The court did not hold that
it could not (i.e., lacked legal authority) to depart
downward, but rather found and held that it would not. The
district court's decision not to depart downward
-6-
6
is, therefore, unappealable. See United States v. Tardiff,
___ ________________________
969 F.2d at 1290.
Based on the foregoing, the judgment of the
district court
is
Affirmed.
________
-7-
7