
USCA1 Opinion

	




          November 23, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 91-2219                                                UNITED STATES,                                      Appellee,                                          v.                                   VIJAI B. PANDEY,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Dr. Vijai B. Pandey on brief pro se.               ___________________               A. John  Pappalardo, United States Attorney,  and C. Jeffrey               ___________________                               __________          Kinder, Assistant United States Attorney, on brief for appellee.          ______                                  __________________                                 __________________                       Per Curiam.    Vijai B. Pandey appeals pro  se from                      __________            his conviction and  sentence.  Pursuant to a  plea agreement,            appellant pled guilty to bank fraud.  Applying the sentencing            guidelines, the  district  court  sentenced  appellant  to  9            months, with a recommendation that  the sentence be served in            a medical  facility.  The  sentence was within  the guideline            sentencing  range of 4 to 10 months.  Appellant began serving            his  nine-month sentence  on November  25, 1991.   Therefore,            defendant has presumably alreadly completed his sentence.                 Appellant requests  that this court  grant the following            relief:    vacate his  conviction  and  sentence; vacate  his            guilty  plea;   dismiss  the  indictment;  remove  and  bring            criminal  proceedings against  the district  court judge  who            sentenced him; dismiss the  assistant U.S. Attorney in charge            of the  case and bring criminal  and disciplinary proceedings            against him and against the probation officer assigned to the            case.  We affirm.                                      Background                                      __________                 On October 2, 1990, appellant was charged in a one-count            indictment  with bank fraud in violation of 18 U.S.C.   1344.            The indictment  charged that in 1988  appellant defrauded two            banks of  approximately $24,000  through a scheme  to falsely            inflate  his  bank  account   and  then  make  transfers  and            withdrawls from that inflated account.                   On March 6, 1991, appellant filed a motion to recuse the            district  judge assigned to his case pursuant to 28 U.S.C.               144  and  455.   Appellant  alleged  that  the  judge had  "a            potential personal  bias  or prejudice  against  me"  because            appellant had filed a  complaint with the Massachusetts Board            of Bar Overseers against the judge's son-in-law in 1988.  The            affidavit attached  to the  motion referenced an  "Exhibit A"            which was to be attached containing appellant's letter to the            Board of  Bar  Overseers.   The  district  court  denied  the            motion, stating as follows:                 This court  has  absolutely no  bias  or  prejudice                 towards  the  defendant.    It  has  absolutely  no                 knowledge  of any  complaint towards  my son-in-law                 nor  would it affect any  action on my  part in the                 case itself.            The order also  noted that  "the exhibit marked  'A' was  not            included with the affidavit."                 Appellant entered  a plea agreement with  the government            on September 19, 1991, in which he agreed to plead  guilty to            the charge and the government agreed that it would not make a            specific sentencing recommendation.   Paragraph 3 of the plea            agreement  stated  that   "[u]nder  the  relevant  Sentencing            Guidelines,  Pandey has a base offense level of ten, based on            the amounts of the  fraud as set forth in  Guidelines Section            2B1.1."   In  fact,  U.S.S.G.    2B1.1  sets forth  the  base            offense levels for "larceny, embezzlement, and other forms of            theft."   The base offense  levels for fraud,  the offense to            which  appellant pled  guilty,  are contained  at U.S.S.G.               2F1.1.   Under   2F1.1,  the relevant base  offense level was                                         -3-            also  ten.   The  erroneous citation  to    2B1.1  was  later            corrected  to read "2F1.1" and the attorney for appellant and            the government attorney initialed the change.                   The  pre-sentence report  (PSI) originally  calculated a            guideline range of 8 to 14 months, based upon a total loss of            over  $20,000.     Following  an  objection   by  appellant's            attorney, the PSI  was amended  to indicate a  total loss  of            over  $10,000,  resulting in  a guideline  range  of 6  to 12            months.      Before   sentencing,   another   objection   was            successfully made by appellant's attorney and the  applicable            guideline  range was  reduced  to 4  to 10  months.   At  the            sentencing hearing, the district court sentenced appellant to            9 months and  recommended that  the sentence be  served in  a            medical facility where appellant  could receive treatment for            diabetes,  chronic  fatigue syndrome  and his  other physical            ailments.  A special assessment of $50 was imposed.                 Prior to sentencing, appellant  moved to have his court-            appointed attorney, William  Fennell, removed on  the grounds            that  Fennell had  conspired with  the government  to deceive            appellant  by changing  the plea  agreement to  reference the            correct section of the sentencing guidelines and that Fennell            had  neglected  his case.    Attorney Fennell  also  moved to            withdraw.   The  court denied  both motions.   Following  the            sentence, Fennell  again moved to withdraw,  which motion was            granted by the district  court.  Appellant filed a  notice of                                         -4-            appeal, a motion to  stay execution of sentence and  a motion            for  release  pending  appeal.    The  motions  were  denied.            Appellant  then filed  a pro  se motion  for release  pending            appeal with this  court.   We denied the  motion.   Appellant            also filed  a motion to  disqualify the First  Circuit judges            who  ruled on  his  motion for  release  pending appeal  from            taking any further action on his appeal.  We also denied that            motion.                                      Discussion                                      __________                 Appellant raises  seven issues on  appeal, objecting  to            the following  actions by  the district court:  1) denial  of            appellant's  motion for  recusal; 2)  failure to  comply with            Fed. R. Crim. P. 32 when sentencing appellant; 3)  acceptance            of appellant's guilty plea when such plea was not knowing and            voluntary;  4) denial of motion to  remove counsel; 5) denial            of  motions to  stay execution  of sentence  and  for release            pending appeal;  6) sentencing  of appellant in  violation of            the Eighth  Amendment; and 7)  violating the Code  of Conduct            for United States Judges.                 1. Recusal.   Appellant  argues that the  district court                    ________            judge  erred in not recusing himself pursuant to 28 U.S.C.               455  and 144.  Those  statutes provide, in  relevant part, as            follows:                   144.  Bias or prejudice of judge                      Whenever  a  party  to  any  proceeding  in  a                 district  court  makes  and  files   a  timely  and                                         -5-                 sufficient affidavit that the judge before whom the                 matter is pending has  a personal bias or prejudice                 either  against  him or  in  favor  of any  adverse                 party, such judge shall proceed no further therein,                 but another  judge shall  be assigned to  hear such                 proceeding.                                        . . .                     455.     Disqualification  of   justice,  judge,   or            magistrate                      (a) Any  justice, judge, or magistrate  of the                 United  States  shall  disqualify  himself  in  any                 proceeding   in   which   his  impartiality   might                 reasonably be questioned.                      (b) He  shall also  disqualify himself in  the                 following circumstances:                           (1)  Where  he  has a  personal                           bias or  prejudice concerning a                           party, or personal knowledge of                           disputed    evidentiary   facts                           concerning the  proceeding; . .                           . .                 As     this     court     has    recently     explained,            "[d]isqualification under   144  and   455(b)(1) each require            determination of  bias/prejudice in fact."   United States v.                                             __ ____     _____________            Chantal,  902  F.2d 1018,  1023  (1st  Cir. 1990).    Section            _______            455(a),  however,  "is  an independent  basis  for  mandatory            disqualification which requires  no determination of bias  in            fact."  Id.   The  following  objective  standard applies  to                    ___            determining whether recusal is required under   455(a):                 the judge  must determine  "whether  the charge  of                 lack  of  impartiality is  grounded  on  facts that                 would  create  a  reasonable doubt  concerning  the                 judge's impartiality, not in  the mind of the judge                 himself  or even  necessarily  in the  mind of  the                 [movant], but rather in  the mind of the reasonable                 man.                                         -6-            United  States  v. Lopez,  944 F.2d  33,  37 (1st  Cir. 1991)            ______________     _____            (quoting United States v. Cowden, 545 F.2d 257, 265 (1st Cir.                     _____________    ______            1976), cert. denied, 430 U.S. 909 (1977)).                   _____ ______                 The  district  court  judge's  decision  not  to  recuse            himself is  reviewable only  for abuse of  discretion. United                                                                   ______            States v. Lopez, 944 F.2d at 37.  With respect to appellant's            ______    _____            motion to recuse pursuant to    144 and 455(b)(1), we do  not            find that the district court  judge abused his discretion  in            finding  that there was no  bias in fact.   Appellant alleges            that  the  district court  judge  exhibited  actual bias  and            prejudice by denying that the Exhibit marked "A" was attached            to  appellant's  affidavit  accompanying his  motion,  and by            violating federal  rules of criminal and  appellate procedure            and denying appellant his constitutional rights.                 Appellant's  unsupported  allegations do  not constitute            showings  of actual bias.  The letter filed by appellant with            the Board of Bar Overseers complaining of the behavior of the            judge's  son-in-law,  a member  of  the  bar, apparently  was            attached to the affidavit accompanying appellant's motion, as            it  is included among  the documents filed  with the district            court.  It is  not marked "Exhibit A," however,  as appellant            referred  to it in his motion.  Therefore, the district court            judge  was correct in stating in his order denying the motion            to  recuse that "The exhibit marked 'A' was not enclosed with            the affidavit."   Appellant's other claims of actual bias are                                         -7-            also baseless.  As is explained below, the district court did            not  violate any  rules of  criminal or  appellate procedure.            Nor did he violate  any of appellant's constitutional rights.            Appellant has failed  to make  a showing of  the actual  bias            required under 28 U.S.C.    144 and 455(b)(1).                 Section  455(a), however,  requires  recusal even  where            there  is  no   showing  of  actual   bias  if  the   judge's            "impartiality might  reasonably be questioned."   28 U.S.C.              455(a).  Appellant's affidavit and letter to the Board of Bar            Overseers  accompanying his  motion  to recuse  are meant  to            supply the required  "factual basis for an inference  of lack            of  impartiality." United  States v.  Giorgi, 840  F.2d 1022,                               ______________     ______            1036  (1st Cir. 1989).   The question is  whether those facts            "provide  what  an  objective, knowledgeable  member  of  the            public would find to  be a reasonable basis for  doubting the                                       __________ _____            judge's impartiality." In re United States, 666 F.2d 690, 695                                   ___________________            (1st Cir. 1981).  The district judge  is allowed considerable            discretion in this area.  Therefore, this court should affirm            the judge's refusal  to recuse himself  unless it "cannot  be            defended  as a  rational conclusion  supported by  reasonable            reading of the record." Id.                                    ___                 Applying this legal standard to the facts before us,  we            conclude  that the  district judge's  decision not  to recuse            himself   was   not   erroneous.      Appellant's   affidavit            accompanying  his motion to recuse  states that the source of                                         -8-            potential bias on the  part of the judge is  "past experience            between  [appellant] and  [the judge's]  son-in-law, Attorney            Goodman,  wherein  I  sent  the  letter  attached  hereto  as            'Exhibit A' to the Massachusetts Board of Bar Overseers."                   The  attached  letter (not  marked  "Exhibit  A") was  a            complaint against attorney Alan R. Goodman dated November 19,            1988.    It stated  that  appellant met  Attorney  Goodman in            January,  1988  and  that  Goodman  offered  to   pay  him  a            percentage  of the fee he  received in any  cases referred to            him by appellant.   The letter further alleged  that Attorney            Goodman offered  to pay appellant for  preparation of certain            medical  claims and  reports  in connection  with the  cases.            Appellant claimed that he made referrals and prepared medical            claims and reports for Attorney Goodman, but had not received            the promised compensation.   Appellant's letter also  accused            Attorney  Goodman of  sending  his clients  to "his  favorite            doctors and therapists to falsely  jack up the medical  bills            which actually comes out from client's share and enhances his            cut  considerably,"   of  neglecting   his  clients  and   of            associating  with "loan sharks."  The letter also stated that            Attorney  Goodman  is  "into  making  quick  money  by  quick            settlements  without  getting  the  optimum  amount  for  the            clients."                  Appellant  filed  this  complaint  more  than  two years            before he  filed the motion  to recuse.   He does  not allege                                         -9-            that the Board of Bar Overseers investigated or confirmed the            accusations or  took any  action against Attorney  Goodman in            response to  the letter.    To  find that the  district judge            abused his discretion in not recusing himself, we would  need            to conclude that a reasonable person would expect appellant's            unsubstantiated  accusations would  cause the  judge to  feel            sufficient  resentment towards  appellant that  he could  not            exercise  his  sentencing discretion  in an  unbiased manner.            While  certainly  offensive,  the unsubstantiated  and  often            illogical complaint  alone, without any  resulting action  by            the  Board of  Bar Overseers,  would not  appear to  test the            judge's capacity for impartiality.                 It is relevant here, we think, that appellant has  filed            unsubstantiated  allegations  of  misconduct  against  almost            every person involved in this case.  Appellant filed a motion            to remove his attorney for conspiring with the government. On            appeal,  he requests  that  criminal proceedings  be  brought            against the  district judge, the Assistant  U.S. Attorney who            prosecuted the case and the probation officer assigned to the            case.  In  this context, it seems particularly  doubtful that            appellants' filing of a complaint against the judge's son-in-            law would cause a reasonable member of the public to question            the judge's impartiality. See  In re Allied-Signal, Inc., 891                                      ___  _________________________            F.2d 967, 971 (1st Cir. 1989) (reasoning that,  "other things            being  equal,   the  more   common   a  potentially   biasing                                         -10-            circumstance and the less easily avoidable it seems, the less            that circumstance will appear  to a knowledgeable observer as            a sign of impartiality"), cert. denied, 495 U.S. 957 (1990).                                      ____________                 This is not an instance where one of the parties filed a            complaint against the judge  himself.  Compare  In  re Olsen,                                                   _______  ____________            20 B.R. 206, 210-11 (D. Neb. 1982) (holding that it was error            for  the bankruptcy judge not  to recuse himself where debtor            in a Chapter 11 case had made accusations of improper conduct            in an  unrelated case against the judge to various government            officials,  creating  an  appearance  of  possible  lack   of            impartiality); United States v. Meyereson, 677 F. Supp. 1309,                           _____________    _________            1315  (S.D.N.Y. 1988)  (explaining that  district  judge will            recuse  himself  from  the  case because  he  "resent[s]  the            unsupported assertions of the  United States Attorney and his            tactics in attempting to disqualify me" and doubts whether he            can maintain impartiality).                 Even if  we were to find that it was error for the judge            to  not recuse  himself, vacating appellant's  conviction (as            appellant  requests  this  court  to  do) would  not  be  the            appropriate  remedy.    "[T]he  Supreme Court  has  said,  in            respect  to   judicial  actions   already  taken,   that  the            disqualification   statute,   28  U.S.C.       455,  'neither            prescribes   nor  prohibits  any   particular  remedy  for  a            violation  of' the  duty  that the  statute  imposes." In  Re                                                                   ______            Allied-Signal  Inc., 891  F.2d at  973 (quoting  Liljeberg v.            ___________________                              _________                                         -11-            Health Services Acquisition Corp., 486 U.S. 847 (1988)).  The            _________________________________            Supreme Court  has  held that  the  following  considerations            should  govern a decision whether or not to vacate a judgment            for  violation of  455: "the risk of injustice to the parties            in  the particular case, the  risk that the  denial of relief            will produce  injustice  in  other  cases, and  the  risk  of            undermining the public's confidence in the judicial process."            Liljeberg, 486 U.S. at 864.            _________                 Given that  appellant pled guilty, there  is very little            risk of injustice to the appellant resulting from the judge's            potential bias  at  that stage,  where  the judge's  role  is            limited (in  comparison to his  role in a trial).   Nor could            the acceptance  of appellant's guilty plea  produce injustice            in other cases.  Finally, letting stand a conviction based on            a  guilty   plea  (even  if   there  was  an   appearance  of            impartiality on  the part  of the  presiding judge) would  be            unlikely to undermine the public's confidence in the judicial            process given the  limited role  of the judge  in the  guilty            plea process.                  Even  under the  sentencing guidelines,  the judge  does            have discretion  at the sentencing stage  of the proceedings.            In  this case,  the district court  sentenced appellant  to 9            months,  at the high end of the applicable guideline range (4            to  10 months).  Appellant  was ordered to  begin serving his            sentence  more than 9 months ago, however.  Therefore, he has                                         -12-            presumably  already completed  his  sentence and  he has  not            asked for sentencing by another judge.                 We deny appellant's request to vacate his conviction and            sentence on the ground  that the district judge erred  in not            recusing himself.  The district judge did not err in refusing            to disqualify  himself and, even  if he had,  appellant would            not be entitled to have his conviction vacated.                 2. Rule 32.  Appellant's claims that  the district court                    ________            violated  Fed.  R.  Crim.  P.  32  when  sentencing  him  are            meritless.  Appellant contends that he  was not provided with            a copy  of the PSI  at least  ten days before  sentencing, as            required  by Fed. R. Crim.  P. 32(c)(3)(A).   At the November            21, 1991 hearing on Attorney Fennel's motion to withdraw  and            appellant's motion  to remove his attorney,  appellant stated            that he had read the PSI in his attorney's office on November            7, 1991, more than ten days before the sentencing hearing.                     Appellant claims that the district court violated Fed.            R.  Crim.  P.  32(c)(3)(D) by  not  making  a  finding as  to            allegations  of inaccuracies  contained  in  the  report  and            violated Rule 32(a)(1) by not postponing sentencing.  No such            obligations attached  because appellant raised  no objections            to  the  PSI  at  the  sentencing  hearing.    Prior  to  the            sentencing hearing,  the  probation department  made  several            changes  to the PSI in response  to objections by appellant's            attorney, with  the result  that  the recommended  sentencing                                         -13-            guideline range  was reduced from 8  to 14 months to  4 to 10            months.  At  the sentencing hearing the district  court asked            appellant's attorney,  "Do you have  any further objections?"            and  Attorney Fennell  responded that  he did  not.   Nor did            appellant  raise any  objections  to the  PSI  when given  an            opportunity to speak.                 Appellant's final claim  with respect to Rule 32 is that            the district court "maliciously, defiantly  and disobediently            breached"  its duty under Fed. R. Crim. P. 32(a)(2) to advise            the  defendant  of his  right to  appeal  the sentence.   The            record indicates that  the district court did fail  to advise            appellant of his right  to appeal.  This was  harmless error,            however, since  appellant filed  his  notice of  appeal in  a            timely manner on  November 25,  1991, the same  day that  the            sentence was imposed.                 3.  Guilty  Plea.     Appellant  claims  that  the  plea                     _____________            agreement he signed was subsequently "tampered with,  defaced            and altered"  by Attorney  Fennel and  the  attorney for  the            government.    He  refers to  the  attorneys'  change of  the            reference in  the  plea agreement  from    2B1.1  to   2F1.1.            Appellant  contends  that the  guilty  plea  was not  entered            knowingly and voluntarily.   He argues that, had he  known of            the change to the plea agreement, he would have withdrawn his            plea.                                          -14-                 Assuming  that,  as  he  contends,   appellant  was  not            notified of this change,  and that the failure to  notify him            was  error, the  error was  harmless.   Under both  sections,            appellant's base  offense level would have been  10 under the            assumptions then in  effect regarding the amount  of the loss            caused by appellant's offense (approximately $24,000).  Under               2B1.1, the  base  offense  level  of  4  would  have  been            increased by 6 for  a loss of more than $20,000, resulting in            a base offense level of 10.   Under   2F1.1, the base offense            level of 6 would have been increased by 4  for a loss of more            than $20,000, also resulting in a base offense level of 10.                 Moreover, the base  offense level set forth  in the plea            agreement  is  merely  an  estimate  of  how  the  sentencing            guidelines  will  be applied.    The  plea agreement  clearly            stated that the estimate was not binding:                 Pandey understands that the  range depends upon the                 investigation conducted by the Probation Department                 and that  he will not be permitted  to withdraw his                 plea  solely because  of an  increase in  the range                 resulting   from  the   pre-sentence  investigation                 conducted by the probation department.            Appellant did not object to the Probation Department's use of              2F1.1 rather  than    2B1.1 for purposes  of calculating  a            recommended  base offense  level  under the  guidelines.   In            fact, appellant succeeded in  reducing the base offense level            recommended  in the  original  PSI in  reliance upon   2F1.1,                                         -15-            comment,  n.  7(b).   Therefore, any  error in  not informing            appellant of the change to the plea agreement was harmless.                 Appellant claims  that the attorney  for the  government            breached  the  plea agreement.    In the  plea  agreement the            government made the following promise:                 The  government  agrees that  it  will  not make  a                 specific sentencing recommendation.   However,  the                 government   reserves  the   right  to   bring  any                 aggravating  or mitigating  factors to  the court's                 attention.            At the  sentencing  hearing, the  government  fulfilled  this            promise.   Although  the attorney  for the  government raised            several  aggravating   circumstances,  including  appellant's            criminal and employment history, characterized appellant as a            "con man" and asked  the court to "consider restitution  as a            condition of any sentence," these actions did not amount to a            breach of the plea agreement.                   Consistent  with the plea  agreement, the government did            not  make  a  specific  sentencing recommendation.    As  the            government  stated  at   the  guilty  plea   hearing,  "[t]he            agreement is that I would not  make a specific recommendation            as to the amount of  time served, Your Honor.  Or  whether or            not  any time should be served for that matter."  Appellant's            attorney agreed  that that  was a proper  characterization of            the agreement.  The government did not recommend an amount of            time  to  be  served, or  that  any  time  should be  served.            Contrary  to appellant's  contention, the plea  agreement did                                         -16-            not obligate the government to bring mitigating circumstances            to the attention of the court.  The government did not breach            the plea agreement.                 Appellant's  final contention  with respect to  the plea            agreement is that  the district court violated  Fed. R. Crim.            P. 11(e)(2) by not requiring that the plea agreement be shown            or  read to  the  defendant in  open  court.   Rule  11(e)(2)            provides, in relevant part, as follows:                 If  a  plea  agreement  has  been  reached  by  the                 parties, the  court shall,  on the  record, require                 the disclosure  of the agreement in  open court or,                 on  a showing of good cause, in camera, at the time                 the plea is offered.            In this case, the fact that a plea agreement had been entered            was  disclosed.  As the above quoted language from the guilty            plea  hearing indicates, the  government accurately described            the nature of the agreement. Appellant's attorney stated that            the  government's description  of the  plea agreement  was an            accurate one.    Rule 11(e)(2)  does  not require  more.  See                                                                      ___            United States v.  Daniels, 821  F.2d 76, 80  (1st Cir.  1987)            _____________     _______            (Crim. R. Civ. P.  11(e)(2) requires parties to  inform trial            judge of all material details of the plea agreement).                  Moreover,  the failure  to  disclose the  change from               2B1.1  to    2F1.1, even  if a  violation of  Rule 11,  would            constitute harmless error under  Fed. R. Crim. P. 11(h).   No            substantial rights  were affected by  the appellant's failure            to become informed of  this change.  As explained  above, the                                         -17-            correction  of  the  misstated  section   of  the  sentencing            guidelines  would  not  have  increased  the  estimated  base            offense level under the sentencing guidelines.                   4. Effective  Assistance of Counsel.   Subsequent to his                    _________________________________            guilty plea  hearing and  four days  prior to  his sentencing            hearing, appellant filed a  motion to remove Attorney Fennell            on November 21, 1991.  The grounds stated in his motion  were            that  Attorney  Fennell  had  conspired with  the  government            attorney  to alter the plea agreement (by changing   2B1.1 to               2F1.1)  without appellant's  knowledge,  and  that he  had            neglected appellant's case  by failing to  return appellant's            phone  calls and  failing to  make objections  to the  PSI as            requested by appellant.                 On November 21, 1991, the  district court held a hearing            on  appellant's motion  to remove  and on  Attorney Fennell's            motion to  withdraw.   After the  movants stated the  reasons            behind their motions, the district court denied both motions.            The   court  concluded  that  Attorney  Fennell  had  "argued            vehemently"  on  appellant's  behalf  and  had  succeeded  in            persuading the Probation Department to reduce the recommended            sentence  in  the  PSI.     He  further  concluded  that  the            correction to the plea agreement had helped the appellant  by            allowing  his sentence  to be  reduced under  the appropriate            guidelines  section,    2F1.1.   Following its  sentencing of                                         -18-            appellant,  the district  court  granted  Attorney  Fennell's            motion to withdraw.                 On appeal,  Pandey argues  that he was  denied effective            assistance of  counsel by the district court's  denial of his            motion to remove Attorney Fennell  prior to sentencing and by            the court's granting of Attorney Fennell's motion to withdraw            subsequent  to sentencing.   We  review the  district court's            denial of  appellant's motion to remove  Attorney Fennell for            abuse  of discretion. United States v. Allen, 789 F.2d 90, 92                                  _____________    _____            (1st  Cir.),  cert.  denied,   479  U.S.  846  (1986).     In                          _____________            determining whether the district court abused its discretion,            we examine the following factors:                 the timeliness  of the motion, the  adequacy of the                 court's inquiry into the defendant's complaint, and                 whether the conflict between  the defendant and his                 counsel was so  great that it  resulted in a  total                 lack  of  communication   preventing  an   adequate                 defense.            Id.              ___                 Appellant  filed the  motion to  remove his  attorney on            November 21,  1991, four days before  his sentencing hearing.            "Although  an  accused  who's  represented  by  an  appointed            attorney  has a right to  effective assistance of counsel, he            does not have the right to choose a particular counsel at any            cost  in terms of delay."  United States v.  Machor, 879 F.2d                                       _____________     ______            945, 952 (1st Cir. 1989), cert. denied, 493 U.S. 1094 (1990).                                      ____________            To  have  appointed new  counsel at  this  late stage  of the            proceedings would have significantly delayed sentencing.                                         -19-                 The  district  court's  inquiry  into  the  adequacy  of            appellant's complaint was more than sufficient.  The district            court held a hearing on November  21, 1991, the same day that            the motion to  remove was  filed.  The  court considered  the            motion to  remove together with Attorney  Fennell's motion to            withdraw.   As explained above, the  district court gave both            movants  an opportunity  to  present their  positions and  to            respond to each other's motions.  Based upon that hearing and            the   district   judge's    knowledge   of   the   attorney's            representation of  appellant in the  proceedings before  him,            the district judge denied the motions.                 Appellant failed to demonstrate "good cause" for removal            of his  attorney. See United States v. Allen, 789 F.2d at 93.                              ___ _____________    _____            For the reasons discussed above, the substitution of " 2F1.1"            for  " 2B1.1"  does  not  constitue  good  cause.     Nor  do            appellant's claims  that his attorney neglected  his case and            refused to  file requested  objections to the  PSI constitute            good cause.   Attorney  Fennell successfully objected  to the            PSI and obtained changes therein, resulting in a reduction in            the recommended sentencing range from 8 to 14  months to 4 to            10  months.    At the  hearing  on  his  motion to  withdraw,            Attorney  Fennell explained  his failure to  make all  of the            objections to the PSI requested by his client:                 [Appellant] instructed me  to take certain activity                 with   respect  to  raising   objections  with  the                 Probation Department about  its report,  continuing                 objections, and  which in my legal  judgment I told                                         -20-                 him I could not  recommend be taken.   And frankly,                 could not  take. Because some of  them also involve                 allegations  about  alleged misconduct  or criminal                 conduct of  other persons who are  involved in this                 case.   Namely  the  Probation Department  and  the                 Assistant U.S. Attorney.            Under those circumstance, Attorney Fennell's  failure to make            all  of  the  objections  requested  by his  client  did  not            constitute good cause for his removal.                 Finally, the conflict between appellant and his attorney            was not so great as to result in "total lack of communication            preventing an adequate defense."  United States v. Allen, 789                                              _____________    _____            F.2d  at 92.   At  the  hearing on  his  motion to  withdraw,            Attorney Fennell stated that appellant's accusations of fraud            and conspiracy and his  requests that Fennell file objections            to  the PSI  alleging misconduct  or criminal conduct  by the            government attorney and the  Probation Department had led him            to file his motion.  He stated:                 I'm just  concerned that the state  of affairs that                 exists    between   us,   what    I   conceive   as                 irreconcilable  differences about  the level  of my                 participation in his  behalf, and my  conduct, that                 more properly  I should  be allowed to  withdraw at                 this point.            Nonetheless, it appears from the record that Attorney Fennell            was  able   to  overcome   his  differences   with  appellant            sufficiently to provide  a more than adequate  representation            at sentencing.                   At the sentencing hearing, the district court noted that            "for the second  time Mr. Fennell,  something you brought  to                                         -21-            the  Probation  Department's attention  has  been  acted upon            positively  in  your  client's  favor."     Attorney  Fennell            presented   mitigating  circumstances   at   length  at   the            sentencing   hearing,   including  appellant's   attempts  to            minimize  the  extent  of  the damage  from  his  wrongdoing,            Attorney   Fennell   argued  that   appellant's  demonstrated            remorse, the  relatively small  amount of money  involved and            his poor  health  should result  in a  sentence of  probation            rather than  confinement.  Although Attorney  Fennell did not            succeed in  obtaining probation for his  client, the district            court was  influenced by Attorney Fennell's  arguments to the            extent  that it stated that "[b]ecause of the urgings of your            attorney  . . . , I'm going  to find that the chronic fatigue            syndrome  that you  have  prevents me  from  ordering you  to            prison for  that. Instead, I'm  going to  recommend that  you            serve the sentence in a medical facility where they will give            you proper care."                  On this record, we  do not find that the  district court            abused its discretion in denying appellant's motion to remove            his attorney.  As we said in United States v. Lyons, 898 F.2d                                         _____________    _____            210, 217 (1st Cir. 1990):                 Not only was [appellant] represented by counsel who                 spoke  on his behalf, but  his counsel .  . . spoke                 vigorously  and  pointedly  -  notwithstanding  the                 reluctance  he expressed  at the  beginning of  the                 [sentencing]  hearing  to  continue   to  represent                 appellant  . . . . Appellant has failed to overcome                 the  heavy  presumption of  adequate representation                 articulated in  Strickland v. Washington,  466 U.S.                                 __________    __________                                         -22-                 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), nor has                 he shown any prejudice resulting from his counsel's                 alleged inadequacy. Id. at 693, 104 S.Ct. at 2067.                                     ___            Appellant was  not denied effective assistance  of counsel by            the district court's  refusal to grant  his motion to  remove            his attorney.                 Nor was appellant denied effective assistance of counsel            by the district court's granting of Attorney Fennell's motion            to  withdraw  following  appellant's  sentencing.   With  his            motion to withdraw, Attorney Fennell filed a notice of appeal            on  his client's behalf on  November 25, 1991.   There was no            constitutional  violation  in this  case  because this  court            appointed  new counsel  to  represent  appellant  on  appeal.            Subsequently,  we  granted   appellant's  motion  to   remove            appointed counsel.                 5.  Denial of Stay of Execution Pending Appeal.                     ___________________________________________                 At   the   sentencing   hearing,  appellant's   attorney            requested  a stay  of  execution of  appellant's sentence  to            allow  him  to "get  his affairs  together  before he  has to            report."   The district court denied the request because of a            concern that  appellant  might  flee.    In  an  order  dated            November  26, 1991,  the  district  court denied  appellant's            motion  for a stay of  execution pending appeal  for the same            reason.1                                            ____________________            1.   The district court did not expressly rule on appellant's            motion  for release  pending  appeal, filed  on November  25,            1991.    The  same  standard applies,  however,  to  releases                                         -23-                 It  is  the defendant's  burden to  prove "by  clear and            convincing evidence  that . . . [he] is not likely to flee or            pose  a danger  to  the safety  of any  other  person or  the            community if released . . . ." See 18 U.S.C.  3143(b).  In an                                           ___            order dated  January 10, 1992, this  court denied appellant's            motion  for release pending appeal on  the ground that "[t]he            defendant's submissions  do not provide clear  and convincing            evidence  that he is not  likely to flee  if released pending            appeal."   For  the same  reason, we  find that  the district            court did not err  in denying appellant's motions for  a stay            of execution  and for  release pending appeal  on the  ground            that appellant might flee.                 6. Eighth Amendment.  Appellant argues that the district                    _________________            court violated  the Eighth Amendment by  sentencing appellant            to  9 months rather than probation and by denying his request            for a stay  of execution "because  of his medical  situation,            the family situation, to get  his affairs together before  he            has  to report."  Appellant did not raise these objections to            his  sentence before  the district  court and,  therefore, is            foreclosed  from  raising them  here.  See  United States  v.                                                   ___  _____________            Morales-Diaz,  925  F.2d 535,  539  (1st  Cir. 1991).    Even            ____________            assuming  that  appellant's Eighth  Amendment  claims  can be                                            ____________________            pending  appeal as  to a  stay of  execution pending  appeal.            Therefore,   the  November  26,   1991  court  order  denying            appellant's motion to stay  execution of his sentence pending            appeal, by implication, was  also a denial of his  motion for            release pending appeal.                                         -24-            considered under the plain  error doctrine, they are entirely            without merit.                 "An  appellate  court  will  ordinarily  not  review   a            sentence  unless  it  exceeds  statutory  limits  or  is  'so            disproportionate to the offense for which it was imposed that            it constitutes cruel and  unusual punishment.'" United States                                                            _____________            v. Gomez-Pabon, 911  F.2d 847, 862  (1st Cir. 1990)  (quoting               ___________            United States  v.  Francesco, 725  F.2d  817, 823  (1st  Cir.            _____________      _________            1984)).  The  sentence imposed  in this case  was within  the            applicable  sentencing  guidelines  imprisonment   range  and            beneath the statutory  maximum.  Therefore, it is  subject to            reversal only on disproportionality grounds.                  Recent Supreme  Court cases  have cast doubt  on whether            the Eighth Amendment contains a proportionality guarantee and            have    upheld   sentences    of    much   greater    claimed            disproportionality than appellant's sentence. See Harmelin v.                                                          ___ ________            Michigan,  --- U.S. ---,  111 S.Ct. 2680  (1991) (upholding a            ________            sentence of life  imprisonment without parole  for possession            of 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370 (1982)                                      _____    _____            (upholding a sentence of 40 years imprisonment for possession            with intent to distribute  of nine ounces of marijuana).   In            light  of  these  cases,   we  conclude  that  the  "required            threshold comparison  between  the gravity  of  [appellant's]            criminal  conduct and  the  severity of  the  . .  .  penalty            [imposed] does  not support  the 'initial inference  of gross                                         -25-            disproportionality'  needed for a successful Eighth Amendment            challenge."  United States  v. Bucuvalas,  970 F.2d  937, 946                         _____________     _________            (1st   Cir.  1992).   (quoting   Tart  v.   Commonwealth   of                                             ____       _________________            Massachusetts, 949 F.2d 490, 503 & n. 16 (1st Cir. 1991)).2            _____________                 7. Judicial Misconduct.  Appellant's final claim is that                    ____________________            the district court's actions, alleged in the claims discussed            above   to  be   in   violation  of   various  statutes   and            constitutional provisions, also  violate the Code of  Conduct            for United States Judges.   For the same reasons that all  of            the appellant's foregoing claims are without merit, his final            claim of  judicial misconduct  is also meritless.   Appellant            has provided absolutely no factual  basis for the claims that            he  has   wantonly  directed  against  the   district  court,            including  claims of conspiracy,  deception, bias, vengeance,            perjury and obstruction of justice.                                      Conclusion                                      __________                 The judgment of the district court is             Affirmed.            ________                                            ____________________            2.   Appellant's claims about the conditions in  which he was            kept during  the three  weeks  between his  sentence and  his            arrival  at  a suitable  medical  facility  are not  properly            before  us.  Those claims concern not the sentence imposed by            the  district court, but the execution of the sentence by the            federal authorities.  Although  such claims might properly be            raised  in a   1983 action, they are not appropriately raised            on direct appeal.                                          -26-
