                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS                    OCT 30 2001
                                   TENTH CIRCUIT
                                                                  PATRICK FISHER
                                                                           Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 01-1015
          v.                                           (D. Colorado)
 ROBERT L. GROSE,                                  (D.C. No. 00-CR-10-D)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before BRISCOE , Circuit Judge, and     McWILLIAMS and ANDERSON , Senior
Circuit Judges.




      On January 11, 2000, Robert L. Grose was indicted and charged with (i)

conspiracy to possess with intent to distribute in excess of 50 grams of crack

cocaine in violation of 21 U.S.C. § 846 and §§ 841 (a)(1) and (b)(1)(A), (ii)

possession with intent to distribute in excess of 500 grams of cocaine in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2, and (iii) possession



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
with intent to distribute in excess of 3 grams of crack cocaine in violation of 21

U.S.C. §§ 841 (a)(1) and (b)(1)(C) and 18 U.S.C. § 2. As relevant here, on March

23, 2000, a jury convicted Mr. Grose on all three drug trafficking counts.        1



         On December 20, 2000, the district court imposed the minimum sentence

applicable to the drug trafficking convictions: three concurrent sentences of sixty-

three months each and five years of supervised release.       2
                                                                  See 21 U.S.C.

§ 841(b)(1)(B) (five-year mandatory minimum) and U.S.S.G. §§2D1.1(a)(3),

2D1.1(c) and 4A1.1 (base offense level of 26 and criminal history Category I,

requiring a sentencing range of 63-78 months). The court did not impose any

fines.

         At the sentencing hearing, Mr. Grose tendered to the court his written       pro

se motion and brief for substitution of counsel, seeking to discharge appointed

counsel who represented him throughout the trial, was successful in continuing

the sentencing proceedings for further investigation and preparation, and was

present and well-prepared at the sentencing hearing. The district court received

the pro se motion but refused to consider it on the ground that it violated the rule



       Mr. Grose was also charged and convicted of forfeiture pursuant to 21
         1

U.S.C. § 853. See Indictment, R. Vol. I, Doc. 1.

        More accurately, consistent with applicable statutory requirements, the
         2

district court sentenced Mr. Grose to “supervised release for a term of five years
on each of counts one and two and three years on count three, all to be served
concurrently.” Tr. of Sentencing Proceedings at 34, R. Suppl. Vol. I.

                                              -2-
against hybrid representation. Tr. of Sentencing Proceedings at 2-3, R. Suppl.

Vol. I. In its written order, the court both denied and struck the motion.

Sentencing Minutes at 3, R. Vol. I, Doc. 99.

       On appeal, Mr. Grose, through court-appointed appellate counsel, does not

contest his conviction. Furthermore, he does not seek to have his sentence

vacated or to be resentenced. He specifically states that “[t]he only relief sought

is not resentencing , but only a remand for purposes of an inquiry into Mr. Grose’s

motion for substitute counsel.”      See Sept. 14, 2001, Ltr. from Asst. Fed. Pub.

Defender to Clerk of Ct., Tenth Cir. Ct. of App., R. Suppl. Auth. (emphasis in

original). As such, Mr. Grose’s sole complaint on appeal is that the district court

erroneously failed to consider his    pro se motion for substitution of counsel by

improperly invoking the rule against hybrid representation.

       Defense counsel is correct in the assertion that the district court must at

least consider a pro se motion seeking relief from representation by counsel and

the appointment of new counsel, and that the rule against hybrid representation

does not generally apply to such limited     pro se motions. Indeed, such motions

may be the only means of revealing that defense representation has, for all

practical purposes, ceased to exist, as, for example, where counsel has become

physically or mentally impaired. Nonetheless, Mr. Grose’s appeal must be

dismissed because neither the conviction nor the sentence is challenged, and thus


                                             -3-
this court is not being asked to give, nor can it grant, any meaningful or effectual

relief. 3 See , e.g. , Western Pac. Airlines, Inc. v. Smith Mgmt. (In re Western Pac.

Airlines, Inc.) , 181 F.3d 1191, 1195 (10th Cir. 1999) (holding that an “appeal is

moot if the court can fashion no meaningful relief”);        In re O.J. Osborn , 24 F.3d

1199, 1203 (10th Cir. 1994) (noting that appeal must be dismissed where it is

“impossible for the court to ‘grant any effectual relief whatever’”) (quoting

Church of Scientology of Calif. v. United States        , 509 U.S. 9 (1992)).   4



       Alternatively, upon a   de novo review of the record, we conclude that the

district court’s failure to review and make findings regarding Mr. Grose’s          pro se

motion did not result in any prejudice in this case sufficient to support a remand.

See , e.g. , United States v. Zillges , 978 F.2d 369, 372 (7th Cir. 1992) (holding that

“[t]he denial of a motion for substitution of counsel will be upheld ... if the

district court’s error was harmless”). Among other things, the sentence imposed




       3
        Counsel does not even suggest that meaningful relief is visible down some
trail of multiple speculations where, on remand, the district court may appoint
new counsel, who may mount some sentencing argument, which may induce the
district court to depart downward from the statute and guidelines.

       “While the question of mootness was not briefed or argued in this case, we
       4

must consider this issue sua sponte as it implicates our jurisdiction.” Cox v.
Phelps Dodge Corp., 43 F.3d 1345, 1347 n. 1 (10th Cir. 1994).

                                            -4-
was the minimum applicable to the convicted offenses, and the conviction itself is

not appealed.   5



      The sentence is AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




      5
       This holding, of course, does not preclude Mr. Grose from pursuing, in
proceedings under 28 U.S.C. § 2255, collateral claims he may have based on any
alleged ineffective assistance of counsel.

                                        -5-
