On thе morning of his trial for credit-card fraud, defendant Benjamin Egwaoje informed the district court that he no longer required the services of his attorney— his third since he had been indicted and the second to be appointed by the -court— and that he wished to proceed pro se. After warning him about the dangers of self-representation, the district court reluctantly granted his request but asked that his former attorney remain to assist him as standby counsel. The district court also denied Egwaoje’s request for a continuance (which he had argued was necessary in order for him to prepare to act as his own advocate) and the trial commenced as scheduled. At- the conclusion of his two-day trial, a jury found him guilty on both counts of the indictment. The court sentenced him to a twenty-seven-month prison term, to be followed by a three-year term of supervised release, and ordered him to pay $38,985 in restitution.
Egwaoje appeals his conviction and sentence arguing (1) that he did not make a knowing and intelligent waiver of his right to counsel; (2) that the district court abused its discretion in not granting his request for a; continuance; (3) that his pro se representation resulted in a trial so lacking in fundamental fairness that he was denied due process of law; and (4) that the district court erred in refusing to consider his motion for downward deparr ture at sentencing based on his status as a deportable alien. We reject all his arguments and affirm both his conviction and sentence.
HISTORY
The Crime
Egwaoje spent the summer months of 2001 visiting several Chicago-area banks, withdrawing thousands of dollars in cash by using credit cards that he had obtained through fraudulent means. It was a lucrative venture for Egwaoje; he swindled the target banks out of nearly $39,000. But while Egwaoje’s summer may have been profitable, it was not endless. On July 17, 2001, a repeat visit to one particular bank location alerted a bank employee, who recognized Egwaoje but remembered him previously using a different náme to withdraw funds. Her suspicions raised, the teller stalled Egwaoje and called the police, who promptly arrived to arrest him. The officers found Egwaoje to possess the fraudulently obtained credit card that he had tried to use to withdraw funds as well as fake identification cards in the name of the cardholder.
Pretrial Proceedings
Egwaoje retained attorney Gary Stern-berg to represent him at his July 23, 2001 preliminary hearing in front of a magistrate. The magistrate judge found probable cause for his arrest, and a grand jury subsequently returned a two-count indictment against Egwaoje on August 15, 2001, charging credit-card fraud in violation of 18 U.S.C. § 1029(a)(2) (use of unauthorized credit cards to obtain cash advances from different banks in an amount in excess of $1000) & (b)(1) (attempting to obtain a cash advance with an unauthorized credit card).
Months later, on November 5, 2001, Sternberg moved to withdraw from representing Egwaoje because his client had refused to meet with him and because of “substantial conflicts” between them. The *582 district court granted Sternberg’s motion and appointed Leonard Goodman, a member of the federal defender panel, to represent Egwaoje.
Egwaoje next appeared before the district court at a December 7, 2001 status hearing, where he personally addressed the court to demand a speedy trial. After asking the government to forecast the trial’s length and complexity, the district cоurt set the case for trial on January 28, 2002, telling Egwaoje he would receive the speedy trial that he had requested. Because Goodman had been unable to attend the status hearing (another attorney was filling in for him), the district court informed Egwaoje that the January 28 trial date might prove inconvenient for his newly appointed attorney and, if so, may have to be adjusted slightly; however, the court would not allow Goodman to move the date much. The district court explained that at the latest, it expected to be able to bring Egwaoje to trial sometime in February. Egwaoje okayed the proposed schedule.
The following week, the district court held a hearing to consider Egwaoje’s motion for release on bond pending trial. The court denied the motion. But Goodman attended the hearing and confirmed that he could accommodate a January 28 trial date. He also discussed the possibility that his client would plead guilty, but informed the court that he didn’t have the discovery he needed to predict Egwaoje’s criminal history category accurately, which prevented his client from making an informed plea decision. The court asked the parties to investigate the matter further and report back within a week.
The parties returned to court on December 21, 2001, and Egwaoje promptly renewed his speedy-trial requests. After the court had agreed to hold another status hearing in two weeks because Goodman still had yet to receive the information he needed, Egwaoje interrupted, stating “I don’t want no time. I want a speedy trial. I say that before.” The court tried to explain to Egwaoje that he needed more time so that he could make an informed plea decision:
The truth of the matter is, if I told you, “You are going to trial tomorrow,” which I couldn’t because today is a Saturday, your attorney would, with good reason, not be ready. You would be convicted and there would be absolutely no point to proceeding that quickly. We have got to have some time to check into [Egwaoje’s criminal history category] in order to make a good decision.
Egwaoje insisted, “I am ready for trial,” to which the court reiterated that, in its opiniоn, he was not, and that Egwaoje would be unhappy with the outcome of an unduly hurried trial. Seeking clarification, Goodman asked whether the January 28 trial date would be rescheduled, and the court indicated that while the trial may not proceed on the 28th, it would still begin around that date.
Goodman’s relationship with Egwaoje deteriorated in the following weeks. At the next status hearing on January 3, 2002, Goodman informed the court that the parties were at an impasse in plea negotiations and, as such, requested that the case be scheduled for triаl as soon as possible. The court reset the trial date for February 11, 2002. Egwaoje then addressed the court, “[Goodman] already told me he can’t beat the case. He is not ready to go to trial.” The court informed Egwaoje that his lawyer’s comments did not reflect his unpreparedness for trial, but rather were an assessment of the strength of Egwao-je’s case. Regardless of his lawyer’s advice, the court clarified that the decision to proceed to trial or plead guilty lay entirely with Egwaoje.
*583 Within a month, and five days before the schеduled start of trial, Goodman moved the court to withdraw from representing Egwaoje. Like he had done previously with Sternberg, Egwaoje was refusing to meet and cooperate with Goodman. The court asked Egwaoje whether he wanted a new lawyer or wished to proceed without one. Egwaoje replied with a nonsequitur about his reasons for failing to meet with Goodman and about his insistence that the case proceed to trial. In response to further questioning, Egwaoje told the court that he wanted another attorney. The cоurt then allowed Goodman to withdraw and told Egwaoje that it would appoint him another attorney but that under the circumstances it would have to move the trial date to March 18 or March 25 at the latest. Once again Egwaoje objected, “I still want my speedy trial.”
On February 26, 2002, Egwaoje’s third attorney, Richard Halprin, appeared on his behalf at yet another status hearing. Halprin told the court that he had not had the chance to meet with Goodman to discuss Egwaoje’s case but that, regardless, he could be ready for trial on March 25. He alsо promised to inform the court should any problems arise between him and Egwaoje. Later that day, the court set the trial date for March 25, but then subsequently reset the date for April 2, 2002.
The Trial
The morning of his scheduled trial date — after having spent approximately eight months in custody during which he repeatedly and consistently petitioned the court for a speedy trial — Egwaoje changed his tune and told the court he wanted a sixty-day continuance: he claimed not to know that his trial was set to begin that day, he wanted to fire Halprin, and he needed the additiоnal time to prepare his defense. The court denied the request:
No, I am not giving you sixty days. I have set the schedule. I have seen in you a course of conduct that has been nothing but an attempt to frustrate the government’s effort to bring you to trial, to play games, to demand a speedy trial, and then to demand a continuance. This is your third lawyer.
Egwaoje then responded, “I am going to go pro se.” The court told Egwaoje that if he so wished he could represent himself, but it would be a foolish decision:
If you wish to proceed pro se, you are entitled to do so. The United States Constitution guarantees your right to proceed as your own lawyer. If you wish to proceed as your own lawyer, I am required to admonish you that to represent yourself in any criminal case is a foolish act. You will almost certainly make significant tactical errors. You will almost certainly put yourself in a position where even if you had a lawful defense, you would be unable to present it in a coherent way. On top of it, you will not, I think, adequately preserve the record in this case if error has been made. So I strongly advise you against reрresenting yourself. But I do tell you that that is your decision. You may choose to represent yourself, or you may choose to have Mr. Halprin represent you. The choice is yours.
If Egwaoje chose to represent himself, the court continued, it would request Halprin to remain in the- courtroom to assist the defendant as standby counsel.
When Egwaoje replied by reducing the length of his original continuance demand to thirty days, the court informed him that regardless of his decision on whether to proceed pro se, his request for a continuance was gоing to be denied — his trial was starting that day. Egwaoje then denounced Halprin, telling the court he no longer had a lawyer and reiterating that *584 he wished to proceed pro se. The court granted Egwaoje’s request after once again informing him of his foolishness, and Halprin agreed to stay on as standby counsel. The court recessed for two hours so that Egwaoje could prepare his defense.
The evidence introduced against Egwao-je at trial included (1) the teller’s testimony that Egwaoje had sought to receive cash advances from her under the names Grant Abbott, Hugh Ball, and Eugene Kientzy; (2) bank surveillance photos showing Egwaoje at the teller counters where he tried to get cash using,.those aliases; (3) the arresting officer’s testimony regarding Egwaoje’s final attempt and the materials recovered from him upon his arrest; and (4) the testimony of two of the victims whose identity Egwaoje had stolen.
During the course of the trial, Egwaoje didn’t object to any evidence that the government offered, was repeatedly admonished by the court for asking irrelevant questions and making argumentative statements during cross-examination, and рresented no witnesses or evidence in his own defense. The jury convicted Egwaoje on both counts.
Post-trial Proceedings and Sentencing
Egwaoje filed a variety of pro se post-trial motions challenging his conviction, which the court treated as one motion for a new trial. After hearing from Egwaoje in support of his motion, the court made extensive factual findings. It concluded that Egwaoje (1) knew that his trial was scheduled to begin on April 2; (2) understood that he had no defense to the credit-card-fraud charges and so engaged in a pattern of obfuscation and obstructionism in his pretrial dealings with the court in an attempt to create an appealable issue; (3) fully understood the risk of going to trial, but lacking any defense, knowingly and intelligently waived his right to counsel and resolved to represent himself in the hope that he could personally invoke the jury’s sympathy; and (4) made errors in the course of his pro se representation, which was to be expected, but also reaped the benefit of being able to argue his story to the jury without having to testify and subject himself to the rigors of cross-examination. The court denied the motion.
At his sentencing hearing on July 12, 2002, Egwaoje madе a motion for downward departure based on his status as a deportable alien. The district court determined that the applicable guideline range was between twenty-one and twenty-seven months and then sentenced Egwaoje to the highest sentence within the range plus three-years supervised release. It also ordered him to pay $38,985 in restitution. After the prosecutor noticed that the court had not announced its ruling on the downward-departure motion, the court stated, “The motion for downward departure was considered and dеnied; largely because if there is any ground for departure in this case, it is a ground for an upward departure rather than a downward one.”
ANALYSIS
I. Right to Counsel
Under the Sixth Amendment, a criminal defendant has a constitutional right to waive the assistance of counsel and to represent’ himself at trial.
Faretta v. California,
To guide that inquiry this Court has considered “(1) whether and to what extent the district court conducted a formal hearing into the defendant’s decision to represent himself, (2) whether there is other evidence in the record that establishes that the defendant understood the disadvantages of self-reрresentation, (3) the background and experience of thé defendant, and (4) the context of the defendant’s decision to proceed
pro se.” United States v. Avery,
Egwaoje doesn’t deny that he made an express statement to the court indicating his desire to proceed
pro se.
His principal contention on appeal is that the district court didn’t do enough by way of a thorough and formal inquiry to ensure that his eyes weren’t closed to the dangers of self-representation when he spoke. To ensure that his right was not waived blindly, Eg-waoje would have us compare the inquiry the district court made in this case against the model inquiry laid out in the federal benchbook. Other courts of appeal have adopted this Miranda-style prophylactic approach,
see, e.g., United States v. McDowell,
Directing our inquiry to the totality of circumstances surrounding Egwaoje’s purрorted waiver, we conclude it was made knowingly and intelligently. First, there is no question that the court satisfied its obligation to warn Egwaoje of the dangers of self-representation. The court told him it was a foolish act that was likely to result in significant errors at trial — errors that would be compounded by his failure properly to preserve the record for appeal. And there is nothing in the record that suggests that Egwaoje was incapable of understanding these repeated warnings.
Egwaoje’s background and experience supports a finding of waiver. He was competent to stand trial. He graduated high school and attended two years of college. Moreover, for a time he successfully constructed and implemented a credit-card scheme that defrauded the target banks out of nearly $39,000. All these facts suggest that Egwaoje possessed normal intelligence and was capable of making informed — albeit unwise — decisions.
Egwaoje was no stranger to the criminal justice system either. His presentence investigation report outlines an extensive history of arrests and convictions for
*586
fraudulent schemes, which weighs in favor of finding a sufficient waiver.
See Moya-Gomez,
The strongest evidence supporting a finding of waiver, however, is that which suggests that Egwaoje was deliberately manipulating the system in an attempt to create an appealable issue. In ruling on his post-conviction motion for a new trial, the district court found as a matter of fact thаt Egwaoje engaged in a pattern of obfuscation and obstructionism in his pretrial dealings with the court by repeatedly demanding a speedy trial and then requesting a continuance, by routinely dismissing his attorneys for no good reason, and by accusing — without basis — the district court and the prosecutor of bias. It further found that this conduct was Egwaoje’s only practical defense to charges that were so well supported by the evidence as to be indefensible on their merits. These findings, entitled to deference on appeal, support a сonclusion that Egwaoje knew full well what he was doing when he asked to proceed
pro se. See Sandies,
Egwaoje’s fallback position — that the district court erred in not concluding that he lacked the ability to conduct his trial effectively and thereby preclude him from the attempt — is meritless. In determining the intelligence and willfulness of a purported waiver, we distinguish between an individual’s competency to waive representation (which is a relevant inquiry, as discussed above) and his competency to conduct it (which is not).
See.Godinez v. Moran,
In sum, we conclude that Egwaoje made a knowing and intelligent waiver of his right to counsel when he elected to represent himself at trial.
II. Right to a Fair Trial
Knowing that the Supreme Court has already foreclosed a defendant who elects to represent himself from pursuing an ineffective-assistance claim on appeal,
see Faretta,
Unfortunately for Egwaoje, we’ve already considered — and rejected — his argument.
See Moya-Gomez,
Most damning to his fair-trial claim, however, would be Egwaoje’s inability to show that the jury failed to determine his guilt fairly and reliably.
Cf. United States v. Farhad,
III. Denial of Continuance
Egwaoje’s remaining claims — that the district court abused its discretion in denying his request for a continuance and that the district court failed to consider his departure motion — are also without merit and may be disposed of with minimal discussion.
A district court’s exercise of its discretion in scheduling trials and granting or
*588
denying continuances is “almost standard-less.” Moy
a-Gomez,
In light of (1) the district court’s finding that Egwaoje knew his trial was scheduled to begin the morning of April 2; (2) Egwaoje’s repeated requests that he be given a speedy trial; (3) the fact that, despite those requests, the trial date had already been rescheduled four times in large part because Egwaoje chose tо fire his attorneys; (4) the unlikelihood that any prejudice resulted from the denial given the strength of the government’s case and the lack of any viable defense; (5) the relative simplicity of the charges brought against him; (6) the fact that before trial Egwaoje chose not to avail himself of the opportunity to access his discovery materials through his attorneys; and (7) the inconvenience and burden to the court, the government, and the witnesses to reschedule a trial that was set to begin that day, it would be beyond reason to find that the district court abusеd its discretion in denying Egwaoje’s request.
See United States v. Farr,
IV. Downward Departure Motion
Relying upon
United States v. Farouil,
This court has often stated that “discretiоnary decisions not to depart are not reviewable.”
United States v. Chavez-Chavez,
*589 Here, the district court’s ruling may have been brief, but it was clear. The court stated that it “considered” Egwaoje’s motion before denying it. We will take that language at face value to mean that the court recognized the Farouil-Guz-man-Bautista line of cases granting it authority to depart, but that in considering Egwaoje’s specific request, it declined to exercise its discretion to do so. Hence, we lack the jurisdiction to consider the exercise of this discretion on appeal.
CONCLUSION
For the foregoing reasons, we Affirm both Egwaoje’s conviction and sentence.