                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30088

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00087-WFN-1
 v.

ARTHUR FRANK CARDENAS,                          MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Wm. Fremming Nielsen, District Judge, Presiding

                             Submitted May 10, 2018**
                               Seattle, Washington

Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,*** Chief District
Judge.

      Arthur Cardenas was convicted by a jury on five counts relating to his illegal

possession of weapons and almost 250 grams of methamphetamine. Cardenas


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
argues (1) that the district court erred in denying his motion to suppress evidence

and in not granting him a hearing under Franks v. Delaware, 438 U.S. 154, 155–56

(1978), which provides that under certain circumstances defendants are entitled to

hearings to determine whether there was a false statement recklessly or

intentionally included in a warrant affidavit that was necessary to a finding of

probable cause; (2) that he received ineffective assistance of counsel; and (3) that a

jury needed to determine beyond a reasonable doubt the quantity of

methamphetamine he possessed before the district court could calculate his base

offense level under the United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1.

We affirm.

      1.     Cardenas identified a few omissions in the warrant application: It left

out information that suggested Alicia Favro—whose statement was offered in

support of the application—was an unreliable witness and that a neighbor—whose

statement also supported the application—identified the man she saw engaged in a

shootout as white and wearing a white shirt when Cardenas is Hispanic and was

wearing a black shirt with a white design. But even without Favro’s statement, and

even if the alleged inconsistency in the neighbor’s statement had been provided,

the facts recounted in the warrant application easily would have been sufficient to

support a finding of probable cause. Thus “no constitutional error . . . occurred,”

and the district court did not err in denying Cardenas’s motion to suppress and


                                          2
request for a Franks hearing. See Bravo v. City of Santa Maria, 665 F.3d 1076,

1084 (9th Cir. 2011).

      2.     Next, Cardenas argues that his lawyer, John Crowley, was ineffective

because he (1) did not seek a severance of the felon in possession charges from the

other charges, (2) did not communicate a plea deal offer to Cardenas, and (3) had

an inherent conflict because he was representing Cardenas pro bono.

      We adopt a “strong presumption” that Crowley employed sound trial

strategy. See Sanders v. Cullen, 873 F.3d 778, 813 (9th Cir. 2017) (quoting

Strickland v. Washington, 466 U.S. 668, 689 (1984)). Here, Crowley provided

rational justifications for why he did not seek severance, the strongest being that he

did not want to allow the government two trials, giving it a chance to perfect its

case during the first. Also, the parties stipulated that Cardenas was a convicted

felon, so the jury did not need to be told the details of his criminal record. This

avoided the prejudice of having Cardenas’s entire criminal history conveyed to the

jurors. See United States v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996) (noting that

stipulating that a defendant has a criminal record, to avoid having the jury hear

about prior bad acts, can be a way to minimize prejudice). We conclude that

Crowley’s decision not to seek a severance was not unreasonable and did not

constitute ineffective assistance of counsel.




                                           3
      Further, Cardenas offers nothing to suggest that the district court’s finding

that Crowley communicated the plea deal offer to him was clearly erroneous. See

United States v. Alvarez-Tautimez, 160 F.3d 573, 575 (9th Cir. 1998) (requiring a

showing of clear error to overturn a district court’s factual findings). We reject

Cardenas’s contention that Crowley did not convey plea deal offers to him.

      As to Cardenas’s contention that Crowley had a conflict of interest with him

because Crowley represented him pro bono, Cardenas must “prove actual conflict,

not just a possibility of conflict, ‘through a factual showing on the record.’”

United States v. Nickerson, 556 F.3d 1014, 1019 (9th Cir. 2009) (quoting United

States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998)). The mere fact that Crowley

represented Cardenas pro bono is insufficient to show an actual conflict by itself.

See Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995). Cardenas vaguely

asserts that Crowley should have performed additional investigation, but the few

concrete omissions that Cardenas identifies are insufficient to demonstrate any

actual conflict. We conclude that Cardenas did not receive ineffective assistance

of counsel.

      3.      Cardenas contends that a jury needed to determine the quantity of

methamphetamine he possessed beyond a reasonable doubt before the judge could

calculate his U.S.S.G. range based on that quantity. This contention is not correct:

We have squarely held that “as with all factors which increase a defendant’s


                                          4
offense level, the government is required to prove the approximate quantity by a

preponderance of the evidence.” United States v. Culps, 300 F.3d 1069, 1076 (9th

Cir. 2002) (emphasis added) (quoting United States v. August, 86 F.3d 151, 154

(9th Cir. 1996)). And a district court is tasked with resolving factual disputes

regarding drug quantity by applying the preponderance of the evidence standard at

sentencing. See United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013). The

cases that Cardenas cites requiring that facts that increase the statutory minimum

or maximum penalty for an offense must be proved to a jury beyond a reasonable

doubt are beside the point. Adjusting a sentencing guidelines range is not the same

as altering the statutory penalty for an offense. There was no need for the district

court to submit the question of the quantity of methamphetamine Cardenas

possessed to a jury. See id.

      AFFIRMED.




                                          5
