                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2753
                                  ___________

Lawrence Sedric Rowan,                 *
                                       *
            Petitioner-Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
United States of America,              *
                                       *      [UNPUBLISHED]
            Respondent-Appellee.       *
                                  ___________

                            Submitted: June 10, 2004
                               Filed: June 28, 2004
                                ___________

Before WOLLMAN, LAY, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

       Lawrence Rowan appeals from the district court’s1 order denying his motion
for habeas relief brought pursuant to 28 U.S.C. § 2255. The district court granted
Rowan a certificate of appealability on the issue of whether his counsel provided
ineffective assistance. We affirm.

       Rowan was charged with four counts of violating federal drug law. He hired
an attorney who already represented one of his co-defendants, Kenric McMurtry. A

      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
hearing was held concerning the joint representation at which it was determined that
a conflict did not exist. Rowan signed a conflict waiver following the hearing.
Rowan and the Government subsequently entered into a written plea agreement in
which Rowan agreed to plead guilty to only Count 2 of the Superseding Indictment,
which charged him with possession with intent to distribute one kilogram of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The Government agreed that
it would move to dismiss the remaining counts at sentencing, including Count 4,
which charged Rowan with aiding and abetting the possession with intent to
distribute approximately 452 grams of cocaine base. However, the parties agreed that
Rowan would be accountable for relevant conduct of approximately 452 grams of
cocaine base.

      On May 2, 2001, the district court sentenced Rowan to 151 months’
imprisonment. This court affirmed his conviction and sentence on direct appeal.
Rowan then filed the present § 2255 motion, arguing that his counsel was ineffective
because of an actual conflict of interest relating to the joint representation and
because his counsel allegedly told Rowan he would not be held accountable for the
452 grams of cocaine base if he pled guilty. The district court denied the motion
without holding an evidentiary hearing.

       Because Rowan’s ineffective assistance claim presents a mixed question of law
and fact, we review the district court’s conclusion de novo and its findings of fact for
clear error. See United States v. White, 341 F.3d 673, 677 (8th Cir. 2003). In order
to prevail on his ineffective assistance claim, Rowan must show that his counsel’s
“‘representation fell below an objective standard of reasonableness’ and that ‘there
is a reasonable probability that, but for counsel[’s] unprofessional errors, the result
of the proceeding would have been different.’” Whitmore v. Lockhart, 8 F.3d 614,
616-17 (8th Cir. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)).



                                          -2-
      Rowan first claims he was sentenced for the crime charged in Count 4, even
though he was not convicted of that crime, which resulted in application of the
incorrect base offense level and imposition of an illegal sentence. Rowan argues he
was prejudiced by ineffective assistance of counsel because his counsel failed to
object to these errors. We find no merit in Rowan’s argument. The record clearly
shows that Rowan was not sentenced for the crime charged in Court 4, but rather
according to the plea agreement. The parties stipulated in the plea agreement that
Rowan’s base offense level was 34 pursuant to § 2D1.1 of the Sentencing Guidelines
and that he would receive a three-level reduction for acceptance of responsibility.
The base offense level of 34 took into account the 452 grams of cocaine base for
which Rowan had agreed to be held accountable. See U.S.S.G. § 2D1.1(c). The plea
agreement and plea colloquy make it clear that Rowan knew and understood that the
cocaine base would be considered relevant conduct and would affect his sentence.
He therefore has no basis on which to claim that he was sentenced for the wrong
crime or that his counsel rendered ineffective assistance with respect to his
sentencing.

       Rowan also argues he was prejudiced by ineffective assistance of counsel due
to his attorney’s actual conflict of interest. In this regard, Rowan alleges that his
attorney failed to disclose to him or the district court that McMurtry was cooperating
with the Government concerning Rowan’s criminal activity. The district court found
that Rowan’s allegations could not be accepted as true because several facts in the
record showed McMurtry was not cooperating with the Government. We find no
error in the district court’s finding. Having no basis in fact to claim that his counsel
had an actual conflict of interest, Rowan’s claim that he was prejudiced by the alleged
ineffective assistance of his counsel fails.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________



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