Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.united States, Appellee, v. Earl Person, Defendant, Appellant, 993 F.2d 1531 (1st Cir. 1993)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

James A. Ruggiero on brief for appellant.

Lincoln C. Almond, United States Attorney, Margaret E. Curran, Assistant United States Attorney, Kenneth P. Madden, Assistant United States Attorney, and Lawrence D. Gaynor, Assistant United States Attorney, on brief for appellee.

D.R.I.

AFFIRMED.

Before Cyr and Boudin, Circuit Judges, and Burns,^*  Senior District Judge.

Per Curiam

. Defendant Person was convicted by a jury on one count of conspiracy to distribute cocaine and two counts of distribution of cocaine. Person appeals the district court's denial of his request to change attorneys and the court's failure to depart downward from the career offender sentencing guideline range.

Substitution of counsel.

On March 16, 1992, the court impaneled ten jurors;¹  impanelment was continued when the jury pool was exhausted. At some point during the proceeding, Person informed the court he wanted to retain private counsel.²  Impanelment was continued to April 2, 1992, the day of trial. On the day of trial,³  Person informed the court his family could not afford to pay an attorney and requested a change of counsel because of statements purportedly made by Thomas Grasso, Person's court-appointed attorney, after the March 16 proceeding. At the same time, Grasso 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 to the United States Constitution guarantees assistance of counsel to a person accused of criminal conduct. See Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963). The purpose of providing, when necessary, court-appointed counsel is to ensure criminal defendants receive a fair trial. Strickland v. Washington, 466 U.S. 668, 689 (1984). 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." United States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert. denied, 479 U.S. 846 (1986). See also United States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990) ("The right of an accused to counsel of his choice ... is not absolute"). "[T]he appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." Wheat v. United States, 486 U.S. 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 court-appointed counsel for abuse of discretion. Richardson, 894 F.2d at 496.

In evaluating a district court's denial of a request for substitution of counsel, we consider the timeliness of the request, whether the district court adequately inquired into the complaint, and whether the attorney-client conflict was great enough to prevent an adequate defense. Allen, 789 F.2d at 92. The record reflects Person's request occurred the day trial was to begin (in other words, in an untimely fashion at the eleventh hour); Person had adequate opportunity to persuade the district court that Person's complaints about his attorney constituted good cause for substitution of counsel;⁵  and the district court appropriately determined the conflict between Person and his attorney was not great enough to prevent an adequate defense. After considering each of these factors, we find the district court did not abuse its discretion when it denied Person's request to change court-appointed counsel.

Downward departure from career offender guideline range.

Before sentencing, the court directed counsel to brief the issue of whether the court had the authority to depart downward from the sentencing guideline range if defendant were a career offender. Person contends the court incorrectly concluded it did not have the authority to depart downward and, as a result, sentenced Person within the career offender guideline range. We do not agree with Person's contention.

A sentencing court's decision not to depart downward is ordinarily unappealable, United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992), unless the decision is based on a "mistaken view that it lacks the legal authority to consider a departure." United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).

At sentencing, the district court found Person to be a career offender. Although the First Circuit has not directly addressed whether a court may depart downward when sentencing a career offender, the district court noted those courts that have departed downward from the career offender guideline range primarily "did so when they found ... the career offender status over-represented the defendant's criminal history." See, e.g., United States v. Beckham, 968 F.2d 47, 54 (D.C. Cir. 1992); United States v. Bowser, 941 F.2d 1019, 1023-24 (10th Cir. 1991); United States v. Pinckney, 938 F.2d 519, 521 (4th Cir. 1991); United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir. 1990). See generally United States Sentencing Guidelines § 4A1.3 (Policy Statement). After careful consideration of Person's criminal history and the circumstances of his criminal conduct, the district court concluded it would not depart downward in this instance.

We find the district court did not sentence Person within the career offender guideline range based on an erroneous determination that it lacked authority to consider a downward departure. The court did not hold that it could not (i.e., lacked legal authority) to depart downward, but rather found and held that it would not. The district court's decision not to depart downward is, therefore, unappealable. See United States v. Tardiff, 969 F.2d at 1290.

Based on the foregoing, the judgment of the district court

is

Affirmed.