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USCA1 Opinion
November 23, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2219
UNITED STATES,
Appellee,
v.
VIJAI B. PANDEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Dr. Vijai B. Pandey on brief pro se.
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A. John Pappalardo, United States Attorney, and C. Jeffrey
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Kinder, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Vijai B. Pandey appeals pro se from
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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
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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
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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
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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
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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
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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
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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.
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Chantal, 902 F.2d 1018, 1023 (1st Cir. 1990). Section
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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
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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.
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United States v. Lopez, 944 F.2d 33, 37 (1st Cir. 1991)
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(quoting United States v. Cowden, 545 F.2d 257, 265 (1st Cir.
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1976), cert. denied, 430 U.S. 909 (1977)).
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The district court judge's decision not to recuse
himself is reviewable only for abuse of discretion. United
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States v. Lopez, 944 F.2d at 37. With respect to appellant's
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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
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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,
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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
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judge's impartiality." In re United States, 666 F.2d 690, 695
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(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.
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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
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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
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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
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F.2d 967, 971 (1st Cir. 1989) (reasoning that, "other things
being equal, the more common a potentially biasing
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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).
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This is not an instance where one of the parties filed a
complaint against the judge himself. Compare In re Olsen,
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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,
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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
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Allied-Signal Inc., 891 F.2d at 973 (quoting Liljeberg v.
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Health Services Acquisition Corp., 486 U.S. 847 (1988)). The
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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.
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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
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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
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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
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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
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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.
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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,
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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
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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
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United States v. Daniels, 821 F.2d 76, 80 (1st Cir. 1987)
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(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
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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
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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
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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
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(1st Cir.), cert. denied, 479 U.S. 846 (1986). In
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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.
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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
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945, 952 (1st Cir. 1989), cert. denied, 493 U.S. 1094 (1990).
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To have appointed new counsel at this late stage of the
proceedings would have significantly delayed sentencing.
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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Document Info
Docket Number： 91-2219
Filed Date： 11/23/1992
Precedential Status： Precedential
Modified Date： 9/21/2015