Filed: Mar. 09, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 9, 2005 Charles R. Fulbruge III Clerk No. 04-20240 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ERNESTO ANIBAL VARGAS-DELEON, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas (4:03-CR-359-ALL) Before WIENER, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Ernesto Vargas-DeLeon pleaded guilty to reentering the country illegally a
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT March 9, 2005 Charles R. Fulbruge III Clerk No. 04-20240 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ERNESTO ANIBAL VARGAS-DELEON, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas (4:03-CR-359-ALL) Before WIENER, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Ernesto Vargas-DeLeon pleaded guilty to reentering the country illegally af..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-20240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO ANIBAL VARGAS-DELEON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CR-359-ALL)
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Ernesto Vargas-DeLeon pleaded guilty to reentering the country
illegally after deportation, following being convicted for an
aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). Before
sentencing, Vargas-DeLeon allegedly obtained incriminating
information about his cell-mate. Later, it was realized that both
were represented by the same Federal Public Defender’s office. A
motion to withdraw by the Assistant Federal Public Defender (AFPD)
representing Vargas-DeLeon was denied. At sentencing, the AFPD
stated: because of the potential conflict of interest, he could
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
not move for a continuance in order to pursue having the Government
move (possibly) for a sentencing reduction for Vargas-DeLeon under
Sentencing Guidelines § 5K1.1 (2004) (substantial assistance to
authorities). Vargas-DeLeon claims this denied him the effective
assistance of counsel, in violation of the Sixth Amendment.
AFFIRMED.
I.
Vargas-DeLeon was deported on 12 July 2003; he had previously
been convicted, inter alia, of burglary of a habitation with the
intent to commit sexual assault and possession of marijuana in a
useable quantity of more than five pounds. Shortly thereafter, he
reentered the United States illegally, without consent from the
Secretary of Homeland Security, as required by 6 U.S.C. §§ 202(3),
(4) & 557. On 11 September 2003, after being found in the Harris
County Jail (located in Houston, Texas), Vargas-DeLeon was indicted
for illegal reentry following deportation for an aggravated felony.
When Vargas-DeLeon made his initial appearance before the
district court on 30 September, the Federal Public Defender was
appointed to represent him, and Vargas-DeLeon was ordered to be
detained pending trial. Early that December, represented by AFPD
Richard Ely, Vargas-DeLeon pleaded guilty without a written plea
agreement. A presentence investigation report (PSR) was prepared;
and, on 5 February 2004, Vargas-DeLeon filed a notice of no
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objections to the PSR. Sentencing was scheduled for 25 February
2004.
Prior to sentencing, however, Vargas-DeLeon allegedly
obtained incriminating information about his cell-mate, Garcia-
Garcia; and hoped to provide this information to the Government, in
order to pursue a possible sentence reduction under Guidelines §
5K1.1. (The Government alone must move for such a reduction.)
Vargas-DeLeon provided this information to Ely, but the record does
not disclose when he did so.
On 20 February, five days before sentencing, Ely learned that
both Vargas-DeLeon and Garcia-Garcia were represented by the same
Federal Public Defender’s office. Ely, however, did not represent
Garcia-Garcia. That same day, Ely moved to withdraw as Vargas-
DeLeon’s counsel. (Garcia-Garcia’s AFPD-counsel also moved to
withdraw.)
The district court denied Ely’s withdrawal motion during
sentencing on 25 February. Prior to its doing so, Ely contended
that, because of the potential harm to Garcia-Garcia, he could not
move for a continuance in order for Vargas-DeLeon to pursue with
the Government a possible § 5K1.1 sentence reduction. Ely noted
that, even though the AFPD representing Garcia-Garcia had been
allowed to withdraw on 23 February, two days before Vargas-DeLeon’s
scheduled 25 February sentencing, Ely’s “duty of loyalty” to
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Garcia-Garcia survived that former representation. Vargas-DeLeon
was sentenced, inter alia, to 66 months imprisonment.
That same day, post-sentencing, Ely was allowed to withdraw.
Post-sentencing, and prior to Garcia-Garcia’s sentencing that
August, Vargas-DeLeon did not pursue having the Government possibly
move for a Federal Rule of Criminal Procedure 35(b) sentence
reduction for substantial assistance to authorities.
II.
The denial of a motion to withdraw based on a conflict of
interest is reviewed for abuse of discretion. E.g., United States
v. Wild, 92 F.3d 304, 307 (5th Cir.), cert. denied,
519 U.S. 1018
(1996). This review includes determining, inter alia, whether an
“actual” conflict of interest existed, as defined infra. United
States v. Medina,
161 F.3d 867, 870 (5th Cir. 1998) (citing United
States v. Rico,
51 F.3d 495, 508 (5th Cir.), cert. denied,
516 U.S.
883 (1995)). Although denial of a motion to withdraw is reviewed
for abuse of discretion, the district court’s underlying
determination whether an actual conflict exists is reviewed de
novo. See Perillo v. Johnson,
205 F.3d 775, 781 (5th Cir. 2000)
(actual conflict determination is mixed question of fact and law,
reviewed de novo).
Normally, “a defendant alleging a Sixth Amendment violation
must demonstrate [,inter alia,] ‘a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
4
would have been different’”. Mickens v. Taylor, 535 U.S. 162, 166
(2002) (quoting Strickland v. Washington,
466 U.S. 668, 685-86
(1984)). This is the familiar “prejudice” prong for ineffective
assistance of counsel claims.
An exception exists to the general Strickland rule, however,
for conflict of interest claims involving multiple representations.
In those instances, “a defendant who shows that a conflict of
interest actually affected the adequacy of his representation need
not demonstrate prejudice in order to obtain relief”. Cuylar v.
Sullivan, 446 U.S. 335, 349-50 (1980) (emphasis added); see also
Beets v. Scott,
65 F.3d 1258, 1265 (5th Cir. 1995) (en banc), cert.
denied,
517 U.S. 1157 (1996) (the Sullivan “test sets a lower
threshold for reversal of a criminal conviction than does
Strickland” and applies only to Sixth Amendment claims involving
multiple representation).
Thus, Vargas-DeLeon “must establish that an actual conflict of
interest adversely affected his lawyer’s performance”. Sullivan,
446 U.S. at 350 (emphasis added). As stated in Mickens: “‘[A]n
actual conflict of interest’ mean[s] precisely a conflict that
affected counsel’s performance – as opposed to a mere theoretical
division of
loyalties”. 535 U.S. at 171 (emphasis deleted). See
also
id. at 172 n.5 (“An ‘actual conflict’, for Sixth Amendment
purposes, is a conflict of interest that adversely affects
counsel’s performance.”). In short, “defects in assistance that
5
have no probable effect upon the trial’s outcome do not establish
a violation” of a criminal defendant’s Sixth Amendment right to
“the Assistance of Counsel for his defence”. Id. at 166 (emphasis
added).
Another exception to Strickland’s prejudice requirement is
“where assistance of counsel has been denied entirely or during a
critical stage of the proceeding”. Mickens, 535 U.S. at 171; see
also United States v. Cronic,
466 U.S. 648, 658-61 (1984). In
these situations, prejudice will be presumed. Unlike the Sullivan
standard, this exception is not limited to situations involving
conflicts caused by multiple representations.
We will assume that a conflict existed, resulting from the
Federal Public Defender’s simultaneously representing Vargas-DeLeon
and Garcia-Garcia. Therefore, at issue is whether the conflict
occurred during a critical stage of the proceeding; and, if not,
whether it was an actual conflict — a conflict that adversely
affected counsel’s performance.
A.
Vargas-DeLeon contends: because of Ely’s conflict, he was
denied representation during “the critical stage of sentencing”;
and, therefore, prejudice should be presumed. Vargas-DeLeon does
not present a basis for how this applies to sentencing, much less
to the one extremely speculative aspect of sentencing at issue.
Arguably, Vargas-DeLeon fails to adequately brief this claim.
6
In any event, for prejudice to be presumed, “the likelihood
that the verdict is unreliable [must be] so high that a case-by-
case inquiry is unnecessary”. Mickens, 535 U.S. at 166 (emphasis
added). “But only in ‘circumstances of that magnitude’ do we forgo
individual inquiry into whether counsel’s inadequate performance
undermined the reliability of the verdict.”
Id. (citing Cronic,
466 U.S. at 659 n.26).
Along this line, the Supreme Court has presumed prejudice in
a number of situations. See Geders v. United States, 425 U.S. 80,
88-89 (1976) (district court’s sequestration order prevented
defendant from conferring with counsel during overnight recess
between defendant’s direct and cross-examination); Herring v. New
York,
422 U.S. 853, 864-65 (1975) (statute gave trial court
discretion not to hear closing arguments); Davis v. Alaska,
415
U.S. 308, 318 (1974) (denial of right of effective cross-
examination); Hamilton v. Alabama,
368 U.S. 52, 55 (1961)
(arraignment was a critical stage for Alabama criminal
proceedings); Ferguson v. Georgia,
365 U.S. 570, 596 (1961)
(statute denied defendant right to have counsel question him at
trial). We note that, in Lockhart v. Fretwell,
506 U.S. 364
(1993), the Court did not presume prejudice in addressing a Sixth
Amendment claim for ineffective assistance of counsel during
sentencing.
7
In any event, based on this record, the “likelihood” of the
sentence being “unreliable” falls far short of the quantum required
for presumed prejudice. Restated, the claimed adverse effect (from
not being able to continue sentencing and have new counsel
appointed in order to pursue seeking to have the Government
possibly move for the § 5K1.1 sentence reduction) is far too
speculative for imposition of a per se rule, for the following
reasons.
The record does not contain any evidence that Vargas-DeLeon
contacted the Government about his providing assistance in Garcia-
Garcia’s prosecution. Moreover, Vargas-DeLeon pleaded guilty to
the charge, without a plea agreement, prior to any conflict.
Therefore, the possibility of the Government’s moving to reduce
Vargas-DeLeon’s sentence is extremely remote. (This is discussed
infra in more detail.) Again, no threat exists that the conflict
“undermined the reliability of the [sentence]”. See Mickens, 535
U.S. at 166.
B.
In the alternative, Vargas-DeLeon claims the conflict
adversely affected Ely’s representation because his continuing duty
of loyalty to Garcia-Garcia prevented Ely from moving for a
continuance in order for Vargas-DeLeon to pursue having the
Government possibly move for a § 5K1.1 sentence reduction. See
TEX. DISCIPLINARY R. PROF’L CONDUCT 1.6 cmt. 4 (“Loyalty to a client is
8
impaired ... in any situation when a lawyer may not be able to
consider, recommend or carry out an appropriate course of action
for one client because of the lawyer’s own interests or
responsibilities to others.”). (Obviously, the denial of the
withdrawal motion was not linked to the Guidelines’ then being
mandatory. Therefore, the issue at hand is not affected by United
States v. Booker, 125 S. Ct. 738 (2005). Vargas-DeLeon does not
contend otherwise.)
Vargas-DeLeon concedes he could have sought the same relief,
post-sentence, pursuant to Federal Rule of Criminal Procedure
35(b). In district court, Ely asserted Vargas-DeLeon was adversely
affected, however, because “[t]he ability to get a 5K [sentence
reduction] is somewhat easier than getting [one under] Rule 35
after the fact”. (Emphasis added.)
Guidelines § 5K1.1 provides, in part: “Upon motion of the
government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person
who has committed an offense, the court may depart from the
guidelines”. (Emphasis added.) Similarly, Federal Rule of
Criminal Procedure 35(b)(1) states: “Upon the government’s motion
made within one year of sentencing, the court may reduce a sentence
if: (A) the defendant, after sentencing, provided substantial
assistance in investigating or prosecuting another person; and (B)
9
reducing the sentence accords with the Sentencing Commission’s
guidelines and policy statements”. (Emphasis added.)
We are not persuaded that Vargas-DeLeon’s representation was
adversely affected because of his counsel’s assertion at sentencing
that a reduction is “somewhat easier” to obtain under § 5K1.1 than
Rule 35. Both procedures require a motion by the Government.
Moreover, the requirements necessary to obtain a reduced sentence
are essentially the same – both require the defendant’s having
provided substantial assistance in the investigation or prosecution
of another. Although Rule 35(b)(1) contains an additional
provision, stating that any sentence reduction must “accord[] with
the Sentencing Commission’s guidelines and policy statements”, this
requirement is implied in § 5K1.1, which is, after all, part of the
Guidelines. Therefore, there does not appear to be any appreciable
difference between seeking a sentence reduction pursuant to § 5K1.1
or Rule 35(b)(1).
In any event, there is nothing in the record stating that
Vargas-DeLeon ever contacted the Government concerning providing
substantial assistance in Garcia-Garcia’s prosecution. Vargas-
DeLeon contends this was because of the conflict caused by the
Federal Public Defender’s dual representation. Ely did not learn
of the conflict, however, until 20 February 2004. It is undisputed
that Ely was aware Vargas-DeLeon claimed to have incriminating
information about Garcia-Garcia before Ely learned of the conflict.
10
(As noted, the record does not disclose when he became aware of
this information.) Therefore, Ely could have consulted with the
Government about its possibly moving for a § 5K1.1 reduction in
exchange for Vargas-DeLeon’s information about Garcia-Garcia
between the time he learned Vargas-DeLeon had the alleged
information and when, on 20 February 2004, he became aware of the
dual representation. The Government, however, was never contacted
by Ely.
Concerning the possible relief under Rule 35(b), Ely was
allowed to withdraw on 25 February 2004, following sentencing;
Vargas-DeLeon filed a pro se notice of appeal on 5 March; and he
was appointed new counsel on 9 March, 13 days after he was
sentenced. Garcia-Garcia had been indicted approximately a month
earlier, on 11 February; pleaded guilty on 24 May; and was not
sentenced until 31 August.
While Vargas-DeLeon’s appeal is pending, the district court
lacks jurisdiction to rule upon a Rule 35(b) motion. See United
States v. Sanzo, 831 F.2d 671, 672 (6th Cir. 1987) (“A district
court has no jurisdiction to rule upon a Rule 35(b) motion after a
notice of appeal has been filed.”). Nevertheless, Vargas-DeLeon’s
new, un-conflicted counsel was still free to consult with the
Government regarding providing substantial assistance in the
prosecution of Garcia-Garcia. Had counsel done so, and had the
Government elected to move under Rule 35(b), the motion could have
11
been filed; and, upon certification by the district court of its
inclination to grant the motion, the case could have been remanded
so that it would have had jurisdiction. Id.
Lacking evidence that Vargas-DeLeon contacted the Government,
either prior to sentencing or post-sentencing, concerning his
desire to provide substantial assistance in the prosecution of
Garcia-Garcia, we cannot say AFPD Ely’s conflict was anything more
than “a mere theoretical division of loyalties”.
Mickens, 535 U.S.
at 171. Therefore, the conflict had no adverse effect on Ely’s
representation of Vargas-DeLeon and was, accordingly, not an actual
conflict. In sum, based on this record, the district court did not
abuse its discretion in denying the motion to withdraw.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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