                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1379
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Timothy Wallace,                        *
                                        *
            Appellant.                  *   [UNPUBLISHED]
                                   ___________

                         Submitted: August 29, 2003
                             Filed: September 11, 2003
                                  ___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

      In this direct criminal appeal, Timothy Wallace challenges his jury-trial
conviction for possessing pseudoephedrine with knowledge that it would be used to
manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). For
reversal, Wallace argues the district court1 denied him access to the court when it
refused to file his pro se motion for substitution of counsel and failed to hold an
evidentiary hearing on his request. He also argues section 841(c) violates the
Commerce Clause. For the reasons discussed below, we affirm.

      1
       The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
       We conclude Wallace cannot show he was prejudiced by the district court’s
refusal to file his pro se motion, because he was allowed to bring up the matter of
substitute counsel at the sentencing hearing. We also conclude the district court did
not abuse its discretion in failing to hold an evidentiary hearing on Wallace’s request
for appointment of substitute counsel given that the court afforded him an opportunity
at sentencing to explain why he was dissatisfied with counsel. Further, the reasons
Wallace gave--counsel was angry about having to go to trial and poorly represented
him at trial, counsel had not informed him of changes in the presentence report (PSR),
and counsel had given him the PSR late--were not compelling reasons to receive
substitute counsel at that time. The court offered Wallace more time to review the
PSR, and informed him that he could seek new counsel on appeal (which he did) and
could raise his ineffectiveness argument in a collateral proceeding. See United States
v. Exson, 328 F.3d 456, 460 (8th Cir. 2003) (whether to grant motion for new counsel
is matter committed to “sound discretion” of district court; to warrant substitute
counsel, defendant must show “justifiable dissatisfaction” with appointed counsel,
such as conflict of interest, irreconcilable conflict, or complete breakdown in
communication between attorney and defendant); United States v. Webster, 84 F.3d
1056, 1062 & n.2 (8th Cir. 1996) (where district court gave defendant leave to freely
explain reason for his discontent with appointed counsel, court satisfactorily inquired
into basis for defendant’s dissatisfaction, and did not abuse its discretion in denying
motion to substitute counsel, which came on last day of trial and did not meet
standards for replacement).

        Wallace’s challenge to the constitutionality of section 841(c) is raised for the
first time on appeal. We do not consider constitutional arguments raised for the first
time on appeal absent exceptional circumstances, see Liberty State Bank v. Minn.
Life & Health Ins. Guar. Ass’n, 149 F.3d 832, 834 (8th Cir. 1998), and we decline to
exercise our discretion to reach this issue, see Warren v. City of Lincoln, 864 F.2d
1436, 1439 (8th Cir.) (en banc) (whether to reach issue first brought on appeal is
discretionary decision), cert. denied, 490 U.S. 1091 (1989).

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Accordingly, we affirm.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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