
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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
