UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5656

CECIL G. MCSWAIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of North Carolina, at Shelby.

Richard L. Voorhees, Chief District Judge.

(CR-93-12)

Submitted: September 30, 1997

Decided: November 18, 1997

Before WILKINS, LUTTIG, and

WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, Gordon Widenhouse,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Mark T. Calloway, United States Attorney, C. Nicks Williams, Special Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This is a direct appeal from Cecil G. McSwain's conviction and

sentence for conspiring to possess marijuana with the intent to distribute and distribution of the same. McSwain raises two errors: (1) that

the district court erred in denying his motion to substitute counsel;

and (2) the district court erred in denying him a reduction in sentence

under the safety valve provision of U.S. Sentencing Guidelines

Manual § 5C1.2 (1995). He requests a new trial in relation to his first

claim of error and resentencing in relation to his second. For the following reasons we affirm.

I.

This Court reviews a claim of error in the denial of substitute counsel under an abuse of discretion standard. See United States v. Gallop,

838 F.2d 105, 108 (4th Cir. 1988). In evaluating whether a district

court abused its discretion, an appellate court considers: (1) the timeliness of the motion; (2) the adequacy of the district court's inquiry

into the defendant's complaint; and (3) whether the attorney/client

conflict was so great that it had resulted in total lack of communication preventing an adequate defense. Id. at 108. An examination of the

factors does not reveal an abuse of discretion.

McSwain's motion for substitute counsel came one week after a

notice for calendar call was mailed. McSwain's case had been called

several times prior to this event, and had, in fact, been continued for

over a year. Given this fact, the motion could be construed as

untimely. More importantly, however, the district court conducted a

sufficient inquiry into McSwain's dissatisfaction with his attorney.

This inquiry, together with the motion, revealed that McSwain sought

new counsel and his attorney, Leonard, wished to withdraw because

Leonard had limited time for, and experience in, trial practice and

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planned to be on vacation at the time of the trial. Further, a second

attorney, Smith, had already entered an appearance on behalf of

McSwain, was familiar with the case, and had commenced work on

the appeal. Smith stated, however, that he wished to conduct more

investigation prior to trial and that it was possible that he would raise

inadequate preparatory time on appeal. No mention was made as to

any breakdown in the relationship between McSwain and Leonard.

At the conclusion of the hearing, the district court deferred its ruling. The next day, the district court stated that it had denied the

motion to substitute Smith because of "a conflict that he would have

had that would have made it impermissible [for him] to be the lawyer

in the case." The district court failed to elaborate on this conflict, but

noted that because it was severing McSwain's trial from that of his

co-defendant's and continuing it until a later time there was no reason

that Leonard could not remain as McSwain's attorney and adequately

prepare the case during the interim.

McSwain argues that the district court abused its discretion in

reaching this decision because it did not sufficiently elaborate on the

conflict of interest which it found to preclude Smith's representation

of McSwain. He further asserts that in order to remove an attorney

there must be an actual conflict of interest which the district court

failed to demonstrate. McSwain misses the point, however. The focus

of the inquiry in determining whether to allow withdrawal and substitution of counsel is not whether the attorney seeking to be added to

the case is appropriate, but rather whether there exists sufficient justification for allowing the first attorney to withdraw. Thus, the issue is

not whether Smith should have been allowed to represent McSwain,

but whether the district court erred in refusing to dismiss Leonard. As

explained above, the district court inquired into the relationship

between McSwain and Leonard and this inquiry revealed no breakdown in the relationship which would have prevented Leonard from

conducting an adequate defense. Accordingly, we find that the district

court did not abuse its discretion in denying McSwain's motion for

substitution of counsel.

II.

McSwain next asserts that the district court erred in failing to consider the applicability of the safety valve reduction under 18 U.S.C.A.

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§ 3553(f) (West 1994 & Supp. 1997), and argues that his case should

be remanded for resentencing on the basis of this failure. McSwain

cites to United States v. Robles-Torres, 109 F.3d 83 (1st Cir. 1997),

as support for this proposition. In Robles-Torres, the government

noted on appeal that neither the parties nor the court had considered

the possible applicability of USSG § 2D1.1(b)(4) which mandates a

two-level reduction in the offense level if the defendant meets the

requirements set forth in USSG § 5C1.2, a provision identical to 18

U.S.C. § 3553(f). The government conceded that this failure was most

likely an oversight because there was reason to believe that the appellant might be eligible for the reduction. Given this concession and

possibility, the appellate court directed the district court, on remand,

"to reconsider the computation of the GSR in light of the government's concession." Robles-Torres, 109 F.3d at 86 n.2. We believe

that McSwain's appeal presents a different set of circumstances which

do not justify remand.

Unlike Robles-Torres, McSwain does not appear to have met the

requirements for a departure under § 3553(f) or § 5C1.2. Specifically,

the fifth requirement--providing all information concerning the

offense to the government prior to or at sentencing--appears to be

lacking. The record on appeal reveals that McSwain continued to

deny his involvement in the conspiracy and that while he did provide

the government with a few names of individuals who might have been

involved in the conspiracy, he failed a lie detector test relating to this

information. Accordingly, we conclude that McSwain does not meet

all of the requirements set forth in § 3553(f) or § 5C1.2, and therefore

conclude that he is ineligible for a reduction under§ 2D1.1(b)(4). See

United States v. Withers, 100 F.3d 1142, 1147 (4th Cir. 1996) (stating

that appellant must acknowledge responsibility for actions before

qualifying for safety valve reduction), cert. denied, ___ U.S. ___, 65

U.S.L.W. 3631 (U.S. Mar. 17, 1997) (No. 96-7884). Under these circumstances, we find McSwain's reliance on Robles-Torres to be

unconvincing. We therefore deny his request for resentencing on this

issue and affirm his sentence.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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