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[NOT FOR PUBLICATION]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. Curr
__________________
_________________
Assistant United States Attorney, Kenneth P. Madden, Assistant Uni
_________________
States Attorney, and Lawrence D. Gaynor, Assistant United Sta
___________________
Attorney, on brief for appellee.
____________________
June 8, 1993
____________________
_____________________
*Of the District of Oregon, sitting by designation.

Per Curiam.
Per Curiam
___ ______
jury on one
two counts of

count of conspiracy

to distribute cocaine

distribution of cocaine.

district court's denial

and

Defendant Person was convicted

of his request to

the court's failure to

by a

and

Person appeals the

change attorneys

depart downward from the career

offender sentencing guideline range.

Substitution of counsel.
_______________________

On
jurors;1

16,

1992,

the

impanelment was continued

exhausted.
informed the
Impanelment
trial.

March

At

some point

court he

wanted to

was continued

On the day of

family could not

during

to

court

impaneled

when the jury

pool was

the proceeding,
retain private

April 2,

1992,

ten

Person

counsel.2
the day

of

trial,3 Person informed the court his

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 courtappointed 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.
-22

change

of counsel because of statements purportedly made by

Thomas Grasso, Person's court-appointed attorney, after

March

16 proceeding.

At

the same

time, Grasso

the

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

Constitution guarantees

342-45 (1963).

See
___

United

The purpose

court-appointed counsel

defendants

receive a fair trial.

(1984).

States

to a

person

Gideon v. Wainwright, 372

____________________

necessary,

466 U.S. 668, 689

the

assistance of counsel

accused of criminal conduct.

U.S. 335,

to

is

of providing,
to ensure

when

criminal

Strickland v. Washington,
________________________

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."

F.2d 90, 92

United States v. Allen, 789

______________________

(1st Cir.), cert. denied, 479

_____ ______

U.S. 846 (1986).

See also United States v. Richardson, 894 F.2d 492, 496 (1st
___ ____ ___________________________
Cir.
choice

1990) ("The

right of

... is not

focuses on

an

absolute").

the adversarial

accused to
"[T]he

process, not

counsel of

his

appropriate inquiry
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-

relationship

with his

States, 486 U.S.

______

lawyer as

such."

Wheat v. United
________________

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

discretion.

evaluating

for
of

adequately

inquired

the

attorney-client

into

of

reflects

Person's request

Allen,
_____

words,

court's

counsel,
whether

we

great
789

of

in

an

and

F.2d at

day

untimely

court

whether the

to prevent

92.

a
the

district

enough

occurred the

denial of
consider

the

the complaint,

conflict was

defense.

other

district

request,

adequate

(in

substitution

timeliness

begin

for abuse

Richardson, 894 F.2d at 496.

__________

In
request

court-appointed counsel

The

an

record

trial was
fashion at

to
the

eleventh hour); Person had adequate opportunity to

the

district

attorney

court

constituted

counsel;5 and

to prevent an

Person's

good

the district

the conflict between

enough

that

cause

complaints
for

persuade
about

his

substitution

of

court appropriately

determined

Person and his attorney was

adequate defense.

not great

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.
-44

each of
abuse

these factors, we
its discretion

find the district court

when it

denied

did not

Person's request

to

change court-appointed counsel.

Downward departure from career offender guideline
__________________________________________________
range.
_____

Before sentencing, the

brief the
depart

issue of whether

downward

from

the

court directed counsel

the court had the

sentencing

defendant were a career offender.

incorrectly
depart

concluded

downward and, as

the career offender

it

to

authority to

guideline

range if

Person contends the court

did not

have

the

authority to

a result, sentenced

guideline range.

We do

Person within
not agree with

Person's contention.
A

sentencing
ordinarily

court's

decision

downward

is

Tardiff,
_______

969 F.2d 1283,

1290 (1st

decision

is based

"mistaken view

on a

unappealable,

not

to

depart

United States v.
__________________

Cir. 1992),

unless the

that it

legal authority to consider a departure."

lacks the

United States v.
________________

Romolo, 937 F.2d 20, 22 (1st Cir. 1991).

______
At sentencing, the district court
be a

career offender.

directly

found Person to

Although the First Circuit

has not

addressed whether a court may depart downward when

sentencing a career offender, the district court noted those

-55

courts

that have departed downward from the career offender

guideline range
career

primarily "did so

offender

status

criminal history."
F.2d 47,
F.2d

over-represented

the

... the

defendant's

See, e.g., United States v. Beckham, 968

___ ____ ________________________

54 (D.C.Cir. 1992);

1019, 1023-24

(10th

1991);

United States v.
__________________

(4th Cir. 1991); United States

______________

v. Lawrence, 916
____________

F.2d 553,

generally
_________

States

(Policy Statement).

United States v. Bowser, 941

________________________

Cir.

Pinckney, 938 F.2d 519, 521

________

United

when they found

554-55 (9th

Sentencing

Cir. 1990).

See
___

Guidelines

4A1.3

After careful consideration of Person's

criminal

history

and

the circumstances

conduct,

the district court

of

his

concluded it would

criminal
not depart

downward in this instance.

We
Person within the
an erroneous

find the district

career offender guideline range

determination

that

consider a downward departure.

it

could not

court did not sentence

(i.e.,

downward, but rather

lacked

it

lacked

based on

authority

to

The court did not hold that

legal

authority)

to

depart

found and held that it would not.

district court's decision not to depart downward

The

-66

is,

therefore, unappealable.

See United States v. Tardiff,

___ ________________________

969 F.2d at 1290.

Based

on

district court
is
Affirmed.
________

the

foregoing,

the

judgment

of

the

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