IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50302
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD YOUNG ALFARO,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Texas
(SA-95-CA-574 & SA-88-CR 145(1))
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December 4, 1996
Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Richard Alfaro pleaded guilty to one count of heroin
distribution. His sentence was affirmed by this court in United
States v. Alfaro, 919 F.2d 962 (5th Cir. 1990). In the pending
proceeding, Alfaro seeks relief under 28 U.S.C. § 2255, alleging
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
ineffective assistance of counsel. The district court denied
relief, and we affirm.
To establish ineffective assistance of counsel, the
convicted defendant must show that counsel’s performance was
deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As
to the prejudice requirement, the defendant must show a
reasonable probability that but for the counsel’s errors, the
result of the proceeding would have been different. Id. at 694.
Alfaro claims that his counsel was ineffective because of a
conflict of interest. The alleged conflict is that Alfaro’s
counsel also represented his brother in a related proceeding. In
a conflict of interest situation, prejudice is only presumed if
the defendant demonstrates the counsel “actively represented
conflicting interests” and that “an actual conflict of interest
adversely affected his lawyer’s performance.” Id. at 692
(quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)).
Alfaro does not make the required showing of an actual conflict
of interest necessary for a presumption of prejudice, and does
not meet Strickland’s prejudice requirement in the absence of
such a presumption.
Alfaro’s brother was prosecuted in a separate proceeding.
The brother was charged with being a felon in possession of a
firearm, while Alfaro was charged in a six-count indictment with
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committing various drug-related crimes. Alfaro did not
demonstrate that his counsel’s defense of his brother was
antagonistic to Alfaro’s defense. The charges against the
brother were dropped after the district court granted a motion to
suppress. The mere fact that Alfaro’s counsel may have devoted
time to another case is not sufficient to establish prejudice or
an actual conflict of interest. To hold otherwise would mean
that all full-time criminal defense attorneys operate under such
a conflict.
Alfaro suggests in his reply brief that his counsel told him
that if he did not plead guilty his brother faced indictment and
a possible life sentence. The record indicates that the brother
was already under indictment at the time, for a single count of
being a felon in possession of a firearm. There is no evidence
of a threat by the government to bring additional charges against
the brother. Further, at the guilty plea hearing Alfaro swore
that no one had threatened, coerced or forced him to plead
guilty.
Alfaro complains that the district court failed to make an
appropriate inquiry into potential conflicts of interest and
advise him of his right to separate representation under FED. R.
CRIM. P. 44(c). This rule only applies where defendants have
been jointly charged under Rule 8(b) or joined for trial under
Rule 13. These circumstances were not present here.
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Alfaro next argues that his counsel was ineffective because
he incorrectly assured him that the drug quantity used for
calculating Alfaro’s sentence would be limited to the drugs
referenced in the fourth count of the indictment, the count to
which Alfaro pleaded guilty. The district court, correctly, did
not limit the drug quantity to the heroin referenced in this one
count. See United States v. Hoster, 988 F.2d 1374, 1378 (5th
Cir. 1993).
Assuming that defense counsel made the assurance to Alfaro
that he now claims, the record belies any claim of prejudice. As
represented at the guilty plea hearing the plea agreement
provided that “Defendant acknowledges that all facts and
circumstances underlying the indictment will be included in the
presentence report.” At this hearing, Alfaro acknowledged to the
court his understanding that a sentence would be imposed under
the United States Sentencing Guidelines, that the court would
consider the presentence report in arriving at a sentence, and
that he faced a sentence of up to forty years. He also
acknowledged that no one had “made any prediction, prophesy, or
promise to you as to what your sentence will be in this matter.”
The court later indicated that it would take up at the time of
sentencing whether heroin in addition to that charged in count
four would be counted for sentencing purposes.
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At the first sentencing hearing on September 15, 1989,
Alfaro heard his counsel and government counsel argue over
whether the drug quantity should be limited to the one count.
Hence, he understood the issue was in dispute. Yet he made no
attempt to withdraw his guilty plea, nor did he indicate to the
court that he had been misinformed by his counsel. At the second
sentencing hearing on September 28, 1989, Alfaro acknowledged
that he was familiar with the presentence report and had
discussed it with his counsel. The report calculated the drug
quantity by including amounts in addition to the count four
heroin. Consistent with the presentence report’s drug quantity
calculation, Alfaro was sentenced to 210 months, far below the
maximum sentence the court advised him he was facing when he
pleaded guilty.
Alfaro also contends that his counsel was ineffective in
failing “to bring out important guideline issues” regarding his
upward adjustment in sentencing for possession of a firearm
during the commission of the offense. His counsel did object, at
the sentencing hearing and to the probation officer, to this
upward adjustment. As Alfaro fails to specify what else his
counsel should have done, we conclude that counsel was not
ineffective with respect to this upward adjustment. To the
extent that Alfaro is arguing that the district court erred in
its technical application of the Sentencing Guidelines, such
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claims are not cognizable in a habeas proceeding. United States
v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).
Alfaro suggests that the government breached the plea
agreement by agreeing to drop the weapons count while planning to
seek an upward adjustment for possession of a firearm on the
remaining count to which he pleaded guilty. The probation
officer and district court were entitled to consider in
sentencing facts or conduct forming the basis of counts dismissed
pursuant to a plea agreement. U.S.S.G. § 6B.1.2(a); United
States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994) (en banc),
cert. denied, 115 S. Ct. 1969 (1995). There is no evidence that
the government promised not to seek an upward adjustment to
sentencing on the remaining count based on possession of a
firearm. On the contrary, the agreement itself provided that all
facts and circumstances underlying the indictment would be
included in the presentence report.
Alfaro finally claims that his counsel was ineffective for
failing to raise a double jeopardy defense in light of the civil
forfeiture of two of his vehicles. Such a forfeiture does not
constitute punishment for double jeopardy purposes. United
States v. Ursery, 116 S. Ct. 2135 (1996). Alfaro was not
prejudiced by his counsel’s failure to raise a meritless claim.
AFFIRMED.
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