United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 12, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10710
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINCY LEVINE
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-316-5-A
Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL,
District Judge.1
PER CURIAM:2
Quincy Levine appeals his conviction and sentence for
cocaine distribution. Levine argues that the district court
erred by refusing to allow him to withdraw his guilty plea and
by denying him a reduction under the sentencing guidelines for
acceptance of responsibility. Levine claims that he pleaded
guilty while represented by counsel who had a conflict of
1
District Judge for the Southern District of Texas, sitting by
designation.
2
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this opinion should not be published and is not precedent except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.
interest arising from prior representation of a codefendant.
Levine asserts that when he raised this conflict, the court not
only refused to grant the motion to withdraw the plea, but also
punished him by withholding the offense level reduction for
acceptance of responsibility.
We find no actual conflict of interest or other basis to
reverse the district court’s decision to deny Levine’s motion
to withdraw the guilty plea. We further find that the district
court did not err in sentencing Levine. The reasons are
explained below.
I. Factual and Procedural Background
A grand jury in the Northern District of Texas indicted
Levine and seven others on December 17, 2003, charging Levine
with one count of conspiracy to possess a controlled substance
with the intent to distribute it, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) & 846 (count one), and one count
of aiding and abetting the possession of a controlled substance
with the intent to distribute it, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (count three). On
December 19, 2003, attorney Ronald Couch was appointed to
represent Levine. On February 9, 2004, attorney Shaun House
entered an appearance as Levine’s retained counsel, and the
court granted House’s motion to substitute. On February 27,
2004, Levine pleaded guilty to count three of the indictment,
2
which charged possession with the intent to distribute and
aiding and abetting.
On May 7, 2004, after the presentence report issued,
Levine filed a pro se “Motion to Excuse Retained Council.” He
argued, among other things, that his (unnamed) counsel had a
conflict of interest because he had previously represented a
codefendant, Kevin Shed.3 In a later filing, Levine alleged
that his wife had actually hired another attorney, Douglas
Greene, to represent him. Levine asserted that Greene told his
wife that House, who shared an office with Greene, would be
designated as Levine’s attorney, because Greene had formerly
represented Shed and the judge would likely view this as a
conflict. Greene assured Levine’s wife that he would
nonetheless continue to work on the case.
The district court held a hearing on June 2, 2004 at which
Levine, his wife, and House testified. The court discharged
both Greene and House, finding that Greene had been Levine’s
attorney “behind the scenes” and that House had served as the
“front man.” The district court was appropriately critical of
3
Shed also appealed, arguing that the district court abused its
discretion in denying his motion to withdraw his guilty plea based
in part on his counsel’s conflict of interest. This court recently
affirmed the district court’s refusal to set aside Shed’s guilty
plea. United States v. Shed, 2005 WL 1427391, at *1 (5th Cir. June
20, 2005).
3
both Greene and House. The court, however, carefully stated
that it had
made no determination whatsoever that this
defendant’s rights have been adversely
affected by the fact that Mr. Greene has
been involved in the defendant’s legal
representation behind the scenes. . . . I’m
not making any determination that that in
any way has caused you to be adversely
affected. So don’t think that this is
going to lead necessarily to another result
such as setting aside the plea agreement —
or the plea of guilty, because I have not
made any findings that would cause me to
think that the plea of guilty should be set
aside or that there is anything
inappropriate about the plea agreement.4
The court again appointed attorney Couch to represent
Levine. Couch filed a motion to withdraw Levine’s guilty plea
on June 9, 2004. In a hearing on the motion held on June 10,
2004, the court denied the motion after analyzing each of the
seven factors set out in United States v. Carr.5 The court
then proceeded to sentencing.
Although the initial presentence report had recommended a
three-point reduction in offense level for acceptance of
responsibility, the probation officer had subsequently
withdrawn that recommendation, finding that Levine had
frivolously minimized his role in the conspiracy. The district
4
United States v. Levine, No. 04-10710, Hearing Transcript
(“Tr.”) Vol. 2, pp. 81–82.
5
740 F.2d 339, 343–44 (5th Cir. 1984).
4
court agreed to the denial of the reduction for acceptance, but
based that decision on Levine’s testimony in the June 10
hearing in support of his motion to withdraw his guilty plea.
Levine received a 360-month sentence, in part reflecting career
offender status.
Levine appeals the district court’s denial of his motion
to withdraw his guilty plea and the refusal to reduce the
offense level for acceptance of responsibility.
II. The Claim of a Conflict of Interest
Levine argues that the court abused its discretion in
denying his motion to withdraw the guilty plea he entered while
his attorneys labored under a conflict of interest. To prevail
on his claim, Levine must show that his attorneys had a
conflict of interest that adversely affected their
performance.6
Courts analyzing allegations of conflicted counsel
typically ask two questions: “(1) whether there was an actual
conflict of interest, as opposed to a merely potential or
hypothetical conflict, and (2) whether the actual conflict
adversely affected counsel’s representation.”7 If a conflict
does not adversely affect counsel’s performance, no “actual
6
See Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100 S. Ct. 1708,
64 L. Ed. 2d 333 (1980); United States v. Infante, 404 F.3d 376,
392 (5th Cir. 2005).
7
Infante, 404 F.3d at 391 (emphasis in original).
5
conflict” exists. “An ‘actual conflict’ exists when defense
counsel is compelled to compromise his or her duty of loyalty
or zealous advocacy to the accused by choosing between or
blending the divergent or competing interests of a former or
current client.”8 If a defendant “establishes an actual
conflict that adversely affected counsel’s performance,
prejudice is presumed without any further inquiry into the
effect of the actual conflict on the outcome of the defendant’s
trial.”9
Levine has not shown an actual conflict of interest.
Levine has not identified how Greene’s prior representation of
Shed adversely affected Greene’s or House’s representation of
Levine. Specifically, Levine has not identified any “plausible
alternative defense strategy that could have been pursued, but
was not, because of the actual conflict.”10 To the contrary,
at oral argument, counsel for Levine acknowledged that the
defense strategy Levine had followed — early and extensive
cooperation followed by a guilty plea — would have been the
same had Levine retained conflict-free counsel from the outset.
8
Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000), citing
Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067,
80 L. Ed. 2d 674 (1984).
9
Perillo, 205 F.3d at 781–82.
10
Infante, 404 F.3d at 393, citing Perillo, 205 F.3d at 807.
6
Without a specific showing of an adverse effect, no actual
conflict exists. In the absence of an actual conflict, and
because the district court properly considered the Carr
factors, we reject this ground for appeal.
III. Acceptance of Responsibility
Levine also appeals the district court’s denial of a
reduction in the offense level for timely acceptance of
responsibility in determining the guideline sentence. We
review the district court’s decision to reduce the sentence for
acceptance of responsibility “with even more deference than is
due under a clearly erroneous standard because the sentencing
judge is in a unique position to assess the defendant’s
acceptance of responsibility and true remorse.”11
Levine asserts, without argument or support, that the
district court denied the reduction as punishment for bringing
his counsels’ conflict to the court’s attention. Levine’s
argument does not take into account or explain the testimony
he gave that led the district court to withhold the adjustment
for acceptance of responsibility.12 Given the level of
11
United States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir.
2005); United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002).
12
The district court stated during the sentencing hearing:
I’m convinced the defendant hasn’t accepted
responsibility from the testimony he gave from
the witness stand today. So I’m denying
acceptance of responsibility, but I’m doing it
because of the defendant’s testimony today
7
deference this court affords to a district court’s
determination of whether a defendant should be credited for
accepting responsibility, we conclude that the court’s
sentencing decision provides no basis for reversal.
IV. Conclusion
The conviction and sentence are affirmed.
that he’s denying that he’s guilty after he
clearly has previously admitted that he’s
guilty.
Tr. Vol. 3, p. 50.
8