     Case: 14-50052         Document: 00512946779          Page: 1     Date Filed: 02/24/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                         No. 14-50052                                FILED
                                                                             February 24, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee

v.

OSCAR HUMBERTO REYES,

                                                     Defendant - Appellant


                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 3:13-CR-1451



Before JOLLY and DENNIS, Circuit Judges, and RAMOS, District Court
Judge. *
PER CURIAM: **
       Oscar Humberto Reyes pleaded guilty to transportation of aliens within
the United States for financial gain, pursuant to 8 U.S.C. §§ 1324(a)(1)(A)(ii),
(a)(1)(B)(i), and was sentenced to 15 months of imprisonment and three years




       *   District Judge of the Southern District of Texas, sitting by designation.
       ** 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-50052

of supervised release. The Federal Public Defender (FPD) for the Western
District of Texas was appointed to represent Reyes.
      The charge against Reyes stemmed from his role as the pick-up driver
for four aliens illegally crossing into the United States from Mexico. Following
their arrests, Reyes and the four aliens were each charged in separate
indictments filed in the El Paso Division of the Western District of Texas. Like
Reyes, the FPD was appointed to represent the four aliens in their respective
proceedings. Each alien pleaded guilty to illegal reentry; three were sentenced
to time served, and the fourth was sentenced to 12 months of imprisonment.
Unlike Reyes, none of the four aliens filed a notice of appeal.
      The Assistant Federal Public Defender (AFPD) who was assigned to
represent Reyes on appeal—a different AFPD than the attorney who
represented him during plea proceedings—then filed a motion in this court
asking that he and the FPD’s office be allowed to withdraw due to a “direct
conflict of interest between Reyes and the aliens” and that new counsel be
appointed. Counsel contended that his continued representation of Reyes on
appeal would violate the Texas ethical rules concerning conflicts of interest
between and among clients, namely, Rule 1.06(b) of the Texas Disciplinary
Rules of Professional Conduct. 1     Further, counsel explained that Reyes’s
possible issues for appeal—that the district court erred in denying a mitigating
role adjustment based on relative culpability among the participants and that
the factual basis was inadequate regarding the element of knowledge of the
aliens’ illegal status—make Reyes’s interests directly adverse to those of the
aliens who Reyes attempted to transport, who were also represented by FPD.


      1    See Tex. Disciplinary R. Prof. Conduct R. 1.06 (1989), available       at
http://legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-
Professional-Conduct/I--CLIENT-LAWYER-RELATIONSHIP/1-06-Conflict-of-Interest--
General-Rule.aspx.
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Counsel averred that the conflict of interest was not discovered until he
reviewed the record on appeal.
       On January 8, 2015, this court granted the FPD’s motion to withdraw as
counsel on appeal and, thereafter, new counsel was appointed. Reyes’s new
counsel on appeal now moves for leave to withdraw and has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and United States
v. Flores, 632 F.3d 229 (5th Cir. 2011). When considering counsel’s motion to
withdraw under Anders, we must consider whether the appeal presents a non-
frivolous argument and if we find any “legal points arguable on their merits
(and therefore not frivolous), [we] must, prior to decision, afford [appellant] the
assistance of counsel to argue the appeal.” See United States v. Condren, 18
F.3d 1190, 1193 n.8 (5th Cir. 1994) (quoting Anders, 386 U.S. at 744).
       Counsel’s Anders brief fails to address Reyes’s previous attorney’s
conflict of interest. As noted, Reyes was represented below by FPD, as were
the other individuals involved in the criminal conduct for which he was
arrested and convicted. Accordingly, Reyes may argue on appeal that he was
deprived of his Sixth Amendment right to effective assistance of counsel
because he was denied conflict-free counsel. See Cuyler v. Sullivan, 446 U.S.
335 (1980); Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). Although
Sixth Amendment claims of ineffective assistance of counsel are generally
resolved on collateral review, 2 we have previously vacated a conviction and
remanded to the district court on direct appeal where the record demonstrated
that counsel had an actual conflict of interest but was insufficient to determine

       2 The “general rule in this circuit is that a claim of ineffective assistance of counsel
cannot be resolved on direct appeal when the claim has not been raised before the district
court since no opportunity existed to develop the record on the merits of the allegations.” See
United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (quoting United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir. 1987) (citations omitted)). “Only in those rare occasions where
the record is sufficiently developed will the court undertake to consider claims of inadequate
representation on direct appeal.” Id.
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whether such conflict adversely impacted the proceedings. See United States
v. Infante, 404 F.3d 376, 390-93 (5th Cir. 2005) (vacating the defendant-
appellant’s conviction and remanding to the district court on direct appeal “for
a determination on the question of whether [counsel’s] conflict of interest
adversely affected his representation”); see also United States v. Salado, 339
F.3d 285, 291-92 (5th Cir. 2003) (remanding to the district court on direct
appeal where the defendant-appellant “sufficiently alleged that an actual
conflict of interest existed based on [counsel’s] joint representation such that
further examination by the district court of this claim is warranted.”). Without
expressing any opinion as to the ultimate merit of Reyes’s potential Sixth
Amendment claim, we conclude that Reyes’s prior counsel’s conflict of interest
below presents a non-frivolous argument on appeal.
      Accordingly, the motion to withdraw is DENIED. We ORDER counsel
for Reyes to file within 15 days a brief on the merits addressing Reyes’s
counsel’s conflict of interest and any other non-frivolous issues that counsel
deems appropriate.




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