United States of America, Plaintiff-appellee, v. David Guardino, Defendant-appellant, 963 F.2d 373 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 963 F.2d 373 (6th Cir. 1992)

May 22, 1992

Before DAVID A. NELSON and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.* 


David Guardino, a pro se federal prisoner, appeals the district court's order denying his motion to remove the judge and probation officers assigned to his case. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Guardino pleaded guilty in January 1989 to two counts of a nineteen count indictment for use of an unauthorized access device in violation of 18 U.S.C. § 1029(a) (2). His signed plea agreement provided that he pay full restitution as to all counts, including those dismissed pursuant to the agreement. When Guardino violated several conditions of his probation, including the full payment of restitution, the district court revoked probation and sentenced Guardino to two concurrent five-year prison terms. Guardino's subsequent motions for relief under Fed. R. Crim. P. 35(b) and for reduction of sentence were denied. He then filed a motion for recusal, which the district court also denied in an order filed October 7, 1991.

On appeal, Guardino continues to argue that the officials in question should be removed from his case because they are involved in a conspiracy to illegally imprison him. He has filed a motion for the appointment of counsel. Guardino's "Amended Response to Plaintiff's Brief" includes a motion to remove Judge Thomas G. Hull from all cases involving Guardino.

Upon review, we affirm the district court's order because the court did not abuse its discretion in refusing to recuse itself or interfere with the assignment of probation officers by the district's chief probation officer. See 18 U.S.C. § 3602(c); United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990).

Accordingly, Guardino's request for the appointment of counsel and motion to remove Judge Hull are denied. The district court's order, filed October 7, 1991, is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.


The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation