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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12959
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT “BOB” JOHNSON, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cr-80223-KAM-2
____________________
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2 Opinion of the Court 21-12959
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Robert Johnson, Jr., appeals his 24-month sentence for con-
spiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349.
He argues that his sentence is procedurally unreasonable because
the district court failed to make independent factual findings sup-
ported by specific and reliable evidence when determining the
amount of restitution and the amount of loss used in calculating his
Sentencing Guidelines sentencing range. He also contends that the
district court erred by failing to investigate the possibility of a con-
flict of interest when defense counsel apologized to the court for
having made unsupported factual representations based on infor-
mation Johnson provided. Finding no reversible error, we affirm.
I.
Johnson was employed by the Department of Veterans Af-
fairs as an inventory management specialist at a VA medical facil-
ity. For at least five years, Johnson and others conspired to have
the VA order and pay vendors for items that it did not need and
that the vendors often did not provide. The vendors would then
pay “kickbacks” to the involved employees.
A grand jury charged Johnson with one count of conspiracy
to commit healthcare fraud, four counts of healthcare fraud, and
one count of bribery. Johnson entered a guilty plea to the conspir-
acy charge pursuant to a written plea agreement in which he
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21-12959 Opinion of the Court 3
stipulated to the facts recounted above. In exchange, the govern-
ment agreed to dismiss the remaining counts and recommend a re-
duction in Johnson’s Sentencing Guidelines calculation for ac-
ceptance of responsibility and a sentence at the low end of his
Guidelines range, unless Johnson was found to have misrepre-
sented facts. The parties also agreed that the loss amount attribut-
able to Johnson was less than $1.5 million and would be deter-
mined by the court at sentencing. The government reserved the
right to recommend that the court find that the estimated loss
amount attributable to Johnson was more than $550,000 but not
more than $1.5 million, which would result in a 14-level increase
to his Guidelines offense level, and that the offense involved a fed-
eral health program where the loss was more than $1 million,
which would result in an additional 2-level increase to his offense
level.
Before sentencing, the probation officer prepared a presen-
tence investigation report (PSR) describing Johnson’s background
and his offense conduct and calculating a proposed Guidelines sen-
tencing range. The PSR stated, among other things, that Johnson
and a coconspirator, Clinton Purvis, placed the “vast majority” of
VA orders totaling approximately $852,000 with one group of ven-
dors, placed orders totaling $1.2 million (of which approximately
$850,000 represented fraudulent orders) with a second vendor
group, and were the “primary recipients” of kickback payments
from a third set of vendors. The PSR stated that the government
estimated that the loss attributable to Johnson was approximately
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4 Opinion of the Court 21-12959
$800,000, the loss attributable to Purvis was approximately $1.4
million, and the total loss attributable to the vendors with whom
Johnson was involved was over $6.6 million.
The PSR relied on those loss estimates to calculate Johnson’s
Guidelines sentencing range. Specifically, it calculated that under
§ 2B1.1 of the Guidelines, Johnson’s base offense level should be
increased by 14 levels based on his “total intended loss amount” of
$800,000 and increased 2 additional levels because the offense “in-
volved a federal health care program where the loss was more than
$1 million.” See U.S.S.G. § 2B1.1(b)(1)(H), (b)(7). These calcula-
tions resulted in a Guidelines sentencing range of 30 to 37 months
in prison followed by 1 to 3 years of supervised release. The PSR
also noted that according to the government, Johnson should be
ordered to pay restitution in the amount of $800,000.
Johnson objected to the PSR’s Guidelines calculations on
the grounds that the $800,000 loss amount attributed to him was
unsubstantiated and that the two-level enhancement under
§ 2B1.1(b)(7) depended on the district court finding that the loss at-
tributable to him was more than $1 million.
Johnson also filed a sentencing memorandum in which he
argued for a downward variance based on the simplicity of the of-
fense, his lack of criminal history, his multiple medical conditions,
his mental health, and his military service. In the memorandum,
Johnson represented that his mental health conditions, including
post-traumatic stress disorder, could be attributed in significant
part “to his victimization in a hate crime while on active military
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21-12959 Opinion of the Court 5
duty,” in which “he was kidnapped, beaten, bound and dragged by
a moving vehicle then suspended from a tree with a rope by his
neck” and ultimately rescued by a law enforcement officer who re-
moved “his unconscious, suspended body from the noose and
tree.”
Johnson argued that his honorable and distinguished mili-
tary service also weighed in favor of a downward variance. He
stated that he had attained the rank of E-8 in the Army (master ser-
geant), had completed “over 400 training and combat military
jumps” as part of the 82nd Airborne Division, and had “participated
in real world military operations where his unit was deployed as
combatants and an occupational force.” During “one of these op-
erations,” Johnson said, he “sustained near death injuries,” includ-
ing a broken back, leg, and arm, “when his parachute malfunc-
tioned causing him to plummet to the ground with his partially de-
ployed canopy.” Johnson stated that because of these catastrophic
injuries he had undergone 19 back surgeries, including “surgical
placement of an indwelling nerve stimulator and spine cage for his
vertebrae.” Johnson said that he had continued to serve despite
being offered the opportunity for a medical discharge.
Johnson also stated in his sentencing memorandum that he
expected that he and the government would reach an agreement
before sentencing as to restitution and the aggregate loss amount.
At the first sentencing hearing, the parties represented that they
had in fact reached an agreement on those issues. When the district
court inquired about Johnson’s objections to the PSR, defense
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6 Opinion of the Court 21-12959
counsel responded that the parties had reached an agreement to
resolve his objection to the monetary-loss amount. The govern-
ment confirmed that the parties had agreed “that as to the conspir-
acy, there was a loss to a federal healthcare program over
$1,000,000, and that as to this defendant, the amount in restitution
owed is at $800,000.” The court clarified, “So that means that the
guideline range that was submitted by probation is correct?” The
government agreed that it was, after which Johnson’s attorney
stated, “The guideline range, Judge, we’re not going to contest, and
I guess for the record as well, we withdraw the objection as to the
aggregate tendered loss amount and the restitution amount, per
the agreement.” The district court then adopted the PSR’s findings
as its own, “with that agreement, and with the withdrawal of the
objection.”
After the government argued that a sentence at the low end
of the Guidelines range (30 months) was appropriate, defense
counsel argued in favor of a downward variance. He acknowl-
edged that Johnson “was a part of the conspiracy, and the nature of
the conspiracy, therefore, would make him accountable for a num-
ber of things, including an aggregate amount.” He also acknowl-
edged that “we understand the nature of the conspiracy and how
he can be financially responsible for the monetary loss even though
your hands are not in the pie. That’s why we came to the table and
we agreed with the previous prosecutor and [the current prosecu-
tor] that we were not going to contest the 800,000 that is set for
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21-12959 Opinion of the Court 7
restitution, nor the intent of the loss that is represented by the
$1,000,000 marking in the pre-sentence report.” 1
Nonetheless, Johnson argued that a downward variance
from his Guidelines range was appropriate, based in part on his mil-
itary service. Counsel argued that Johnson’s service was extraordi-
nary not only because of his 20-year enlistment and honorable dis-
charge, but also because of the nature of his service as a “combat-
ready and combat-introduced soldier,” his end rank of master ser-
geant, and his serious injuries during one combat mission when his
parachute did not deploy properly, which he said resulted in a bro-
ken back, arm, and leg and hospitalization for 11 months.
Johnson testified in support of his request for a variance,
confirming and elaborating on the claims he had made through
counsel about his military service. For example, Johnson testified
that he broke his back, arm, and leg during one military jump when
his main parachute collapsed and his reserve chute got tangled and
did not open completely. Johnson testified that he was hospitalized
for 11 months after the injury and had 20 back surgeries, including
placement of a protective cage around his spine and a nerve
1 Where the defendant’s criminal actions were undertaken as part of a conspir-
acy, his Guidelines loss calculation “may be based on the losses resulting from
the reasonably foreseeable acts of co-conspirators in furtherance of the con-
spiracy.” United States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir. 2014)
(quoting United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010)); see
U.S.S.G. § 1B1.3(a)(1)(B). Contrary to Johnson’s suggestion on appeal, there-
fore, the loss amount used to calculate a defendant’s Guidelines range may
exceed the amount of loss attributed to him individually.
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8 Opinion of the Court 21-12959
stimulator from his neck to his tailbone to manage his constant
pain from the injury. Despite his serious injuries, Johnson said, he
requalified to jump and jumped again. By his count, he completed
a total of 478 jumps during his military service.
Johnson testified that he traveled during the 1980s with the
82nd Airborne Division for operations in Grenada, Panama, Ger-
many, and Iran, and participated in jumps in each location. He said
that he sustained two injuries—a gunshot wound from a “ricochet
bullet” and chemical burns from an incendiary device—while in
Panama helping to destroy military equipment and documents.
He testified that he was hit by another ricochet bullet in Germany
when a fellow American soldier “freaked out” and fired shots inside
a silo where they were both working.
Johnson testified that he has sarcoidosis (an inflammatory
condition affecting the lungs and lymph nodes) from working with
white phosphorous in the military, and he suffers from high blood
pressure, glaucoma, and diabetes. He said that he also received
mental health treatment in the military, beginning after an incident
in 1977 when he and two other soldiers were attacked while trav-
eling on leave through Jackson, Mississippi. Johnson said that he,
“the black guy,” was dragged from the car, tied up, and lifted up on
a tree with a noose around his neck. He lost consciousness and was
saved by the arrival of a deputy sheriff, who made the attackers cut
him down. Johnson said that his attackers were not charged, but
he and the other two soldiers were arrested and jailed for their own
safety until their commander came to Jackson and had them
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21-12959 Opinion of the Court 9
released. At the commander’s request, Johnson said, he began see-
ing a psychiatrist after the event, and he had continued the treat-
ment since that time.
The government called David Spilker, a special agent with
the VA Criminal Investigations Division, to testify at the sentenc-
ing hearing about his review of Johnson’s military and VA records.
Spilker testified that although Johnson trained as an infantryman
and attended airborne school, he reclassified as a supply sergeant
immediately upon his assignment to the 82nd Airborne Division in
1977 and served “as a general supply man” thereafter until he be-
came a recruiter in 1986. Spilker acknowledged that Johnson
served honorably for 20 years and received several commendation
medals, achievement medals, and good conduct medals. He also
acknowledged that Johnson was airborne qualified and would have
had to jump five times to get his wings and once every three
months thereafter to maintain his qualification, but he testified that
Johnson’s records did not contain a jump log recording the total
number of jumps he made, and Spilker believed that Johnson’s con-
tention that he jumped 478 times during a ten-year period was “un-
supportable.”
According to Spilker, Johnson’s military records contained
no indication that Johnson had traveled with the 82nd Airborne to
Grenada, Iran, or Panama for the operations he referenced in his
testimony. Johnson was assigned to a unit that deployed to Gre-
nada, but he served the unit in a support position from Ft. Bragg in
North Carolina—and in any event, the 82nd did not jump into
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10 Opinion of the Court 21-12959
Grenada during the operation there. The operation in Panama that
Johnson had referenced took place in 1989, after Johnson left the
airborne unit and began working as a recruiter in Miami.
Spilker further testified that Johnson’s records indicated that
the highest rank he attained was E-6 (staff sergeant), not E-8, and
that there were no records of him being attacked and hung with a
noose in the 1970s, receiving psychiatric care in the late 1970s or
1980s, or undergoing back surgery and being hospitalized for 11
months as a result of a parachute malfunction. Johnson’s records
indicated that he was injured in one jump at Ft. Bragg, but he sus-
tained only a bruised leg and was treated with Motrin, crutches,
and a few weeks’ exemption from physical training. His records
did not indicate that he ever injured his back or broke any bones
during a jump, or that he was ever hospitalized due to injuries sus-
tained in a jump or hospitalized for 11 months for any reason.
The district court indicated its concern that the parties were
telling “very divergent stories of what may have occurred with Mr.
Johnson’s military career.” The court informed Johnson that it had
been inclined to give him a variance from the Guidelines range
based on Johnson’s representations about his service, but if it
turned out that Johnson was “making things up,” the court would
have “a different attitude.” The court postponed sentencing to give
Johnson and his attorney an opportunity to review the records col-
lected by the government and to obtain any other records that
might support Johnson’s version of the facts.
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21-12959 Opinion of the Court 11
Three months later, Johnson filed an amended sentencing
memorandum withdrawing some of his factual representations.
Specifically, he amended his previous memorandum to state that
the highest rank he achieved in the military was E-6 (staff sergeant),
not E-8 (master sergeant); he was assigned to logistics support in
the military and had no combat deployment; he had an unsubstan-
tiated number of jumps, none of which were combat jumps; his
injuries from a parachute malfunction were “non-serious” and did
not involve a broken back, arm, and leg; and the “hate-crime inci-
dent” that he had described to the court was “unsubstantiated.”
Johnson also withdrew as unsubstantiated his representations that
he had suffered gunshot wounds during his service and that he had
had an opportunity to take a medical discharge from the military
and declined it.
The amended memorandum stated that Johnson had “au-
thorized the undersigned counsel to withdraw the above-refer-
enced factual recitations and amend the sentencing representation.
He was also afforded the opportunity to terminate the attorney-
client relationship with the undersigned and to seek substitution of
counsel if he objected to the foregoing remedial action.” The
memorandum also stated that “undersigned counsel stands pre-
pared to undertake further remedial and responsive action con-
sistent with the Rules Regulating the Florida Bar as the sentencing
hearing advances, should the Defendant fail to testify or conduct
himself consistent with the amended memorandum and personal
or military service substantiated history.” The amended
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12 Opinion of the Court 21-12959
sentencing memorandum also reiterated that the “Defendant and
United States agreed upon restitution and aggregate loss amount.”
(emphasis in original).
At the beginning of the second sentencing hearing, the dis-
trict court confirmed its understanding of the parties’ prior resolu-
tion of the “issues about guideline calculations” and asked whether
it recalled correctly that the guidelines calculations in the PSR had
been adopted and there were no further issues with those calcula-
tions. Both parties answered in the affirmative.
The district court then asked defense counsel to speak about
the withdrawal of some of Johnson’s factual representations.
Counsel stated that he had a desire and, under Florida Bar rules, a
duty to “set the record straight.” He expressed his belief in the im-
portance of reputation and credibility in the practice of law and his
hope that he would not lose the respect and confidence of the
court. Counsel stated that as a Black man, he was particularly trou-
bled by the representation that he had made on Johnson’s behalf
about the hate-crime incident, given the strong emotions evoked
by allegations of racist violence. He called those representations
“deplorable” and stated that he wanted “to make certain that that
is retracted” because he was unable to represent to the court that
the allegations were “unrebuttable truth.” The court responded
that it believed that counsel had “acted admirably and profession-
ally, ethically,” and had “made an excellent presentation on behalf
of Mr. Johnson based upon what [counsel] believed in good faith
were the facts.”
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21-12959 Opinion of the Court 13
Following this colloquy, the parties presented argument
about the appropriate sentence for Johnson. The government ad-
vocated a sentence between 27 and 36 months, asking the court to
consider not only the sentences of 27 months and 36 months re-
ceived by two coconspirators with similar charges, but also the fact
that Johnson had made several misrepresentations under oath
about his military service.
Johnson’s counsel requested a downward variance to a sen-
tence between 18 and 20 months. He argued that while Johnson
had retracted some of the representations made in his initial sen-
tencing memorandum as unsubstantiated, his representations that
he suffered from several serious health conditions, including sar-
coidosis, an indwelling nerve stimulator and spine cage, high blood
pressure, glaucoma, diabetes, and mental health conditions includ-
ing post-traumatic stress disorder, anxiety, and depression had
been substantiated and supported his request for a downward var-
iance. He also discussed the sentences imposed on Johnson’s code-
fendants, some of whom had cooperated with the government and
received sentences of probation or short terms of imprisonment.
Against the advice of counsel, Johson addressed the court di-
rectly. He stated, “Your Honor, I would like to apologize to you,
the other attorney, the probation officer and my attorney on my
behalf. I’m truly sorry. If I could turn back the clock, Your Honor,
I would do that. I would truly like to say, I’m sorry. I’m really,
truly sorry. Thank you.”
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14 Opinion of the Court 21-12959
The district court stated that it was troubled by the fact that
Johnson had made statements that were intended to influence the
court in its sentencing decision and that later turned out to be inac-
curate. It explained that it had decided to vary below the Guide-
lines range, in part to ensure that Johnson was sentenced fairly in
comparison to coconspirators, but that it was going to be “less gen-
erous in the variance” than it would have been if everything that
Johnson had reported about his history had been accurate. The
court sentenced Johnson to 24 months in prison followed by two
years of supervised release and imposed restitution in the amount
of $800,000. Johnson now appeals.
II.
Ordinarily, we review the district court’s factual findings re-
garding the amount of loss and the amount of restitution for clear
error, and we review the court’s application of the Sentencing
Guidelines to the facts de novo. United States v. Cobb, 842 F.3d
1213, 1218 (11th Cir. 2016); United States v. Barrington, 648 F.3d
1178, 1194–95 (11th Cir. 2011). Where the defendant fails to raise
an objection in the district court, we may review the issue for plain
error, which generally requires the defendant to show that the dis-
trict court committed a plain or obvious error that affected his sub-
stantial rights and that, “if left uncorrected, would seriously affect
the fairness, integrity, or public reputation of a judicial proceed-
ing.” United States v. Maurya, 25 F.4th 829, 836 (11th Cir. 2022)
(citation omitted).
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21-12959 Opinion of the Court 15
Under the doctrine of “invited error,” however, we will not
review on appeal an error that was induced or invited by the appel-
lant. United States v. Harris, 443 F.3d 822, 823–24 (11th Cir. 2006).
Thus, when a defendant clearly and affirmatively withdraws a sen-
tencing objection, he waives review of the objection on appeal,
even for plain error. Cobb, 842 F.3d at 1222; see also United States
v. Masters, 118 F.3d 1524, 1525–26 (11th Cir. 1997) (the “plain error
doctrine is inapplicable” where a defendant knowingly withdraws
a sentencing objection).
III.
A.
Johnson first argues that the district court’s sentence was
procedurally unreasonable because the district court failed to make
independent factual findings supporting its Guidelines calculations
based on the amount of loss and failed to properly calculate his res-
titution amount. We conclude that Johnson invited any error in
this respect when he affirmatively withdrew his objection to those
calculations at sentencing and explicitly agreed that the loss
amount for Guidelines purposes was over $1 million and the cor-
rect amount for restitution was $800,000. See Cobb, 842 F.3d at
1222.
Johnson contends that the doctrine of waiver or invited er-
ror does not preclude review here because the district court did not
address him directly to confirm that he agreed with his counsel’s
withdrawal of his earlier objections to the PSR. But although the
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16 Opinion of the Court 21-12959
defendant’s personal and explicit consent is required for the waiver
of certain basic rights (such as the right to counsel and the right to
plead not guilty), in most contexts a waiver expressed by counsel
acting on the defendant’s behalf is effective. See New York v. Hill,
528 U.S. 110, 114–15 (2000); see also United States v. Jernigan, 341
F.3d 1273, 1289–90 (11th Cir. 2003) (defendant waived argument
alleging constitutional error in the admission of a codefendant’s
statements where defense counsel agreed to the introduction of the
evidence at trial).
Where, as here, the subject of the waiver is the alleged lack
of record evidence supporting the district court’s sentencing deci-
sion, counsel’s statement is sufficient to waive the issue on the de-
fendant’s behalf. See Harris, 443 F.3d at 823–24 (declining to re-
view defendant’s argument that the district court erred in failing to
obtain a PSR where the record did not otherwise contain a suffi-
cient factual basis for the sentence because defense counsel waived
the PSR “and that waiver invited any error that may have arisen
here”). Because any error by the district court with respect to the
calculation of the Guidelines loss amount and the amount of resti-
tution was invited by the defendant, we decline to review his argu-
ment on those issues on appeal.
B.
Johnson next contends that the district court erred by failing
to inquire into whether his attorney had a conflict of interest in
representing him when counsel expressed his concern for his own
reputation and credibility after learning that several
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21-12959 Opinion of the Court 17
representations he made on Johnson’s behalf (based on infor-
mation provided by Johnson) were inaccurate or unsubstantiated.
A criminal “defendant has a constitutional right to effective assis-
tance of counsel at sentencing.” 2 Jones v. United States, 224 F.3d
1251, 1259 (11th Cir. 2000) (citation omitted). Where the right to
counsel exists, the defendant has “a correlative right to representa-
tion that is free from conflicts of interest.” Wood v. Georgia,
450 U.S. 261, 271 (1981).
To safeguard this right, attorneys are obligated to inform the
trial court immediately if a conflict of interest arises, and the trial
court must then conduct an appropriate inquiry to determine
whether continued representation is appropriate. Holloway v. Ar-
kansas, 435 U.S. 475, 485–86 (1978). Trial courts must rely on the
“good faith and good judgment” of defense counsel to determine
whether a conflict of interest exists and to bring any conflicts to the
court’s attention—and if counsel does not notify the court of a con-
flict, the court generally may assume that either the representation
is conflict-free or the defendant and his counsel knowingly accept
the risk of the conflict. Cuyler v. Sullivan, 446 U.S. 335, 346–47
(1980). Trial courts have some duty to investigate apparent con-
flicts, but “[u]nless the trial court knows or reasonably should
2 Johnson emphasizes that he is not, at this time, raising an ineffective-assis-
tance-of-counsel claim. See United States v. Patterson, 595 F.3d 1324, 1328
(11th Cir. 2010) (“We will not generally consider claims of ineffective assis-
tance of counsel raised on direct appeal where the district court did not enter-
tain the claim nor develop a factual record.”).
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18 Opinion of the Court 21-12959
know that a particular conflict exists, the court need not initiate an
inquiry.” Id. at 347; see Dallas v. Warden, 964 F.3d 1285, 1303 (11th
Cir. 2020).
Defense counsel’s statements at sentencing did not require
the district court to investigate whether he was laboring under a
conflict of interest. Johnson argues that counsel’s expression of
concern for his own reputation and his statement that he found the
unsubstantiated allegation that Johnson had been the victim of a
racially motivated hate crime “deplorable” should have alerted the
court to a potential conflict. We do not agree.
As Johnson concedes, defense counsel was required to with-
draw several representations he had made to the court on John-
son’s behalf once he learned that they were inaccurate. See Nix v.
Whiteside, 475 U.S. 157, 176 (1986). Some statement by counsel
acknowledging his duty of candor to the court, recognizing the
gravity of the situation, and assuring the court that counsel would
continue to uphold his ethical obligations likely was expected—and
more importantly, was not necessarily inconsistent with Johnson’s
own interest. An attorney’s credibility with the court is valuable
not only to the attorney himself but also to his client, especially
when the court has reason to doubt the client’s own honesty.
While the trial court undoubtedly was aware of counsel’s embar-
rassment and dismay over having unintentionally misled the court,
this alone is insufficient to show that the court knew or reasonably
should have known that a conflict of interest existed. See Sullivan,
446 U.S. at 347. Even if the trial court was aware of some “vague,
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21-12959 Opinion of the Court 19
unspecified possibility of conflict,” it had no duty to investigate fur-
ther under the circumstances. Mickens v. Taylor, 535 U.S. 162, 169
(2002).
IV.
For the foregoing reasons, we affirm Johnson’s conviction
and sentence.
AFFIRMED.