                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                     No. 03-2316
                                     ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the Northern
                                     * District of Iowa.
Kevin Michael Thurmon,               *
                                     *
           Defendant-Appellant.      *
                                ___________

                              Submitted: February 11, 2004
                                  Filed: May 12, 2004
                                  ___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Kevin Thurmon plead guilty to one count of Distribution of Cocaine Base, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The district court1 sentenced
Mr. Thurmon to 210 months imprisonment. Mr. Thurmon appeals his conviction and
sentence, alleging that the district court erred in denying his motions to continue trial
and withdraw his plea, and his attorney’s motion to withdraw as counsel. Mr.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
Thurmon also contends the district court erred in denying a downward departure
pursuant to U.S.S.G. § 3B1.2(b) for his role in the offense. We affirm.

I.    BACKGROUND

       The facts giving rise to Mr. Thurmon’s underlying conviction are set forth in
his presentence investigation report and are not in dispute on appeal. These facts are
as follows:

             On February 20, 2002, a confidential informant placed a recorded
      call to [Mr. Thurmon] to arrange for a purchase of one-half ounce of
      crack cocaine for $700. The confidential informant subsequently met
      with [Mr. Thurmon] at his residence, 1136 Locust Street in Dubuque,
      Iowa. Daimysei Jasper was present in [Mr. Thurmon’s] residence but
      left soon after their arrival. [Mr. Thurmon] then took the confidential
      informant to 243 West 11th Street to meet with Jasper and to conduct
      the drug transaction. Jasper sold the confidential informant one-half
      ounce of cocaine base or crack cocaine for $700. The substance
      purchased was determined . . . to be 12.78 grams of cocaine base . . . .

              On April 9, 2002, Iowa Department of Narcotics Enforcement
      Special Agent Mower placed a recorded call to [Mr. Thurmon] to
      arrange a purchase of one ounce of crack cocaine for $1100. Special
      Agent Mower subsequently met with [Mr. Thurmon] at his residence
      . . . . At around 5:20 p.m., Ricky Carter arrived at [Mr. Thurmon’s]
      residence. Carter showed Special Agent Mower one ounce of crack
      cocaine and stated that he had just cooked it up. Special Agent Mower
      then handed [Mr. Thurmon] $1,100 in U.S. currency, and Carter handed
      the crack cocaine to Special Agent Mower. [Mr. Thurmon] then handed
      the money to Carter. Special Agent Mower weighed the crack cocaine
      and then asked for $100 back because the weight was light. Carter gave
      Special Agent Mower $100 back. Carter told the agent that he would




                                         -2-
      get him a quarter ounce more the next time they met. The substance
      . . . was determined to be 19.62 grams of cocaine base.

Presentence Investigation Report at ¶¶ 14-15.

       The government charged Mr. Thurmon with distribution of cocaine base and
use of a telephone to facilitate the distribution of cocaine base. Trial was originally
set for October 1, 2002. However, it was delayed until January 6, 2003, as a result
of three motions to continue. In each of these unresisted motions, Mr. Thurmon’s
lawyer, Scott Peterson, stated that he needed additional preparation time.

       On December 16, 2002, Mr. Peterson filed a fourth motion to continue trial to
February 1, 2003. Mr. Peterson informed the district court that he had recently
received 1000 pages of medical records he had requested some time earlier. Mr.
Peterson stated that he wanted to examine the medical records so that he could
properly advise Mr. Thurmon on whether Mr. Thurmon should proceed to trial or
attempt to negotiate a plea with the government. Mr. Peterson advised the district
court that the parties were engaged in ongoing plea negotiations and were fairly
confident a plea agreement could be reached. He stated that the contents of the
medical records would assist the parties in finalizing the plea offer.

       Before the district court ruled on the motion to continue, Mr. Peterson informed
the district court that personal family obligations rendered him unable to properly
prepare for trial. Specifically, he advised that his widowed mother was scheduled for
surgeries on January 6th and 13th, 2003. Because Mr. Peterson was the only
immediate family member available in the state to assist his mother, he did not
believe he could focus his full attention on Mr. Thurmon’s case.

        The district court denied the motion to reschedule trial to February. Instead,
it offered to delay trial by two days. Shortly after receiving the district court’s denial,


                                           -3-
Mr. Thurmon entered into a plea agreement with the government. On January 9,
2003, Mr. Thurmon appeared before a United States Magistrate Judge and plead
guilty to distribution of cocaine base. The district court accepted Mr. Thurmon’s plea
on January 27, 2003.

         Mr. Peterson negotiated substantial benefits for Mr. Thurmon in the plea
agreement. The parties stipulated to a base offense level using 32.4 grams of cocaine
base. This quantity did not include five grams of cocaine authorities found in Mr.
Thurmon’s possession while he was on pretrial release.2 The government agreed not
to seek the statutory penalties of 21 U.S.C. § 841(b)(1)(B) and not to file additional
drug-related criminal charges against Mr. Thurmon.3 In addition, the parties agreed
to a two-level reduction pursuant to U.S.S.G. § 3E1.1 for Mr. Thurmon’s acceptance
of responsibility, and Mr. Thurmon reserved his right to request from the court a
three-level reduction on that basis. Defendant also reserved the right to seek a
downward departure based upon his medical condition and to contest the application
of the protected location statute and guideline.

       At the April 10, 2003 sentencing hearing, Mr. Peterson made a motion to
withdraw the guilty plea and a motion to withdraw as counsel. The district court
continued the sentencing to allow the parties to brief these issues. On April 17, 2003,
the district court held a hearing on these motions, but Mr. Thurmon failed to appear.
Following Mr. Thurmon’s arrest for failing to appear, the district court held another

      2
       We note that the government did not charge Mr. Thurmon for committing a
drug crime while on pretrial release in violation of 18 U.S.C. § 3147.
      3
       The statutory penalty under 21 U.S.C. § 841(b)(1)(B) included a five-year
mandatory minimum sentence. Although the anticipated guideline sentencing range
was expected to exceed sixty months, this concession would have allowed the district
court to depart all the way to a sentence of probation if the medical departure was
granted. This was an important concession to Mr. Thurmon because of his belief that
his medical condition warranted a substantial departure.

                                         -4-
hearing on these motions. Mr. Peterson argued that the district court’s previous
refusal to grant a continuance rendered him ineffective. He claimed that as a result
of his ineffectiveness, Mr. Thurmon was not able to enter into the plea agreement
intelligently, knowingly, and voluntarily. The district court denied both the motion
to withdraw the guilty plea and the motion for Mr. Peterson to withdraw as counsel.

       At Mr. Thurmon’s subsequent sentencing hearing, the district court applied a
guideline enhancement for obstruction of justice due to Mr. Thurmon’s failure to
appear at the April 17th hearing. The district court denied a reduction for acceptance
of responsibility, denied Mr. Thurmon’s request for a reduction based on a mitigating
role in the offense, and declined to depart downward based on Mr. Thurmon’s
medical condition. The district court sentenced Mr. Thurmon to 210 months
imprisonment, a four-year term of supervised release, and a mandatory special
assessment of $100. Mr. Thurmon now appeals.

II.   APPLICABLE LAW AND DISCUSSION

      A. Motion to Continue

       Mr. Thurmon contends the district court erred in denying his motion to
continue trial. “We will reverse a district court’s decision to deny a motion for
continuance only if the court abused its discretion and the moving party was
prejudiced by the denial.” United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.
1996). In this case, we need not determine whether the district court’s unwillingness
to grant Mr. Thurmon’s unresisted continuance reached the level of an abuse of
discretion, because Mr. Thurmon failed to show that he suffered prejudice.

       As set forth above, Mr. Peterson reserved rights for Mr. Thurmon and obtained
concessions from the government in the plea agreement. Mr. Thurmon contends that
if Mr. Peterson would have had an opportunity to more thoroughly review the medical

                                         -5-
records, Mr. Thurmon’s bargaining power would have been enhanced and he would
have received a more favorable plea agreement. We are not persuaded. The medical
records pertained to sentencing issues only, not Mr. Thurmon’s guilt or innocence.
Furthermore, the plea agreement reserved Mr. Thurmon’s right to seek a downward
departure based upon his medical condition.4

        Mr. Thurmon argues that Mr. Peterson’s personal family issues hampered Mr.
Peterson’s ability to advise whether to plead or go to trial. Although Mr. Peterson
faced competing obligations due to his mother’s medical condition, Mr. Thurmon
failed to show that Mr. Peterson rendered ineffective legal services. To the contrary,
we find that Mr. Peterson effectively represented Mr. Thurmon’s legal interests by
obtaining a favorable plea agreement. See Taylor v. Bowersox, 329 F.3d 963, 972-73
(8th Cir. 2003) (finding that a lawyer who was fired from the public defender’s office
and who allegedly had to devote time to finding a new job nevertheless provided
defendant with adequate representation). We note that at the time Mr. Peterson
requested the fourth continuance, he informed the court that Mr. Thurmon and the
government had engaged in plea negotiations and that trial was unlikely. We cannot
say that Mr. Thurmon suffered prejudice from the district court’s refusal to grant a
continuance.




      4
       The district court did not sentence Mr. Thurmon until April 10, 2003. Mr.
Thurmon does not allege that Mr. Peterson failed to properly review the medical
records before his sentencing, nor does he appeal the district court’s refusal to depart
downward for a medical condition under U.S.S.G. § 5H1.4. Mr. Thurmon has a
serious kidney disease and is on dialysis, which is the reason he was allowed to
remain on pre-trial release after his guilty plea. Mr. Peterson did a very thorough job
of presenting the medical case for departure, including the calling of Mr. Thurmon’s
attending physician as a witness.

                                          -6-
      B. Motions to Withdraw Plea and Withdraw as Counsel

      Mr. Thurmon raises essentially the same arguments in support of his challenge
to the district court’s denial of the motion to withdraw the guilty plea and Mr.
Peterson’s motion to withdraw as counsel. Because we find that Mr. Peterson
provided sufficient representation, we affirm the district court’s denials of these
motions.

      C. Role in the Offense Adjustment

       We next consider whether the district court erred in denying Mr. Thurmon’s
request for a downward adjustment pursuant to U.S.S.G. § 3B1.2 for his role in the
offense. United States Sentencing Guideline § 3B1.2 provides for a two or four level
reduction in a defendant’s offense level if the defendant was a “minor” or “minimal”
participant in the criminal activity. These reductions are applicable “for a defendant
who plays a part in committing the offense that makes him substantially less culpable
than the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A). “Whether a defendant
qualifies for a [role reduction] is a question of fact, the determination of which we
review for clear error.” United States v. Hale, 1 F.3d 691, 694 (8th Cir. 1993).

      The uncontested facts show that on two separate occasions Mr. Thurmon
arranged for the sale of crack to a confidential informant and an undercover agent.
Mr. Thurmon did not merely tell prospective buyers where they could obtain drugs;
he escorted a confidential informant to a seller’s apartment where the confidential
informant purchased drugs, and he arranged for an undercover agent to make a drug
purchase at his residence. Nothing in the record suggests that these transactions
would have occurred but for Mr. Thurmon’s involvement. Under these
circumstances, we cannot say the district court clearly erred in denying Mr.




                                         -7-
Thurmon’s request for a reduction pursuant to U.S.S.G. § 3B1.2.5 See Hale, 1 F.3d
at 694-95 (affirming the denial of a minor participant reduction where a defendant
informed a buyer where to purchase drugs and accompanied the buyer to an apartment
to purchase drugs).

      We affirm the judgment and sentence of the district court.
                      ______________________________




      5
        Although at sentencing the district court did not explicitly state its ground for
denying an adjustment under U.S.S.G. § 3B1.2, it appears the district court adopted
the prosecutor’s argument that Mr. Thurmon’s involvement in the offense was
critical.


                                          -8-
