                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 14, 2017
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                          No. 16-3276
                                               (D.C. No. 2:14-CR-20014-KHV-DJW-12)
 FAUSTINO SOTO,                                               D. Kansas

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BACHARACH, McKAY, and MURPHY, Circuit Judges.



I.    Introduction

      Appellant Faustino Soto pleaded guilty to drug and firearm charges and was

sentenced to a total term of imprisonment of 420 months. Soto appeals, arguing

his Sixth Amendment rights were violated by the district court’s failure to

question him personally about a potential conflict between himself and his

appointed counsel. He argues the district court also erred by failing to properly

consider a motion to withdraw his guilty plea. Soto’s claim of procedural

      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
sentencing error is based on his assertion the district court failed to acknowledge

his request for a downward variance from the advisory sentencing range.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

this court affirms Soto’s convictions and sentence.

II.   Background

      Soto was charged in a sixth superseding indictment with four crimes: (1)

conspiracy to distribute and possess with intent to distribute fifty grams or more

of methamphetamine, (2) possession with intent to distribute more than five

grams of methamphetamine, (3) possession of firearms in furtherance of a drug

trafficking crime, and (4) possessing a firearm while being an unlawful user of a

controlled substance. During a change of plea hearing held on February 2, 2016,

appointed counsel informed the district court that Soto intended to retain new

counsel and did not want to plead guilty. Soto’s appointed counsel noted serious

logistical issues that counseled against permitting Soto to retain new counsel,

asserting it would be impossible for new counsel, who was ill and hospitalized, to

prepare for trial on such short notice. 1 Appointed counsel, nonetheless, sought a

continuance on Soto’s behalf. The government opposed any continuance,

asserting it believed Soto was threatening witnesses. It wanted the case tried as




      1
       The hearing was held on Tuesday February 2, 2016. The trial was
calendared to begin on Monday February 8, 2016.

                                        -2-
soon as possible to minimize the possibility that witnesses would be intimidated

into not testifying.

         Soto also spoke at the hearing and engaged in a colloquy with the district

court.

         The Court: Okay. Let’s just talk about why you want a new lawyer
         or why you want the trial to be continued.

         Soto: For the reason that [Mr. Rork] was the attorney that was
         appointed to me that I had for my first case. And then when this
         case came up, [Mr. Rork] didn’t show up. He’s been very sick.
         Like, he’s been sick and I don’t know if—like, I felt like I was
         abandoned. So I would like to see if you could grant a continuance
         to see if I can get more help.

         The Court: What’s wrong with [appointed counsel]?

         Soto: Well, what I know is that [Mr. Rork] has more experience in
         this type of cases and he said that he would help me. Honestly,
         that’s the reason. I don’t have a problem with [appointed counsel]
         but the numbers of—in the sentence are too much. Thirty to 35
         years is too much for the first time for the first mistake in my life.

         I have worked legitimately for over 20 years to help my daughters,
         and now my wife is taking care of them alone. That’s why I’m
         asking you for an opportunity to see if I can reduce my sentence. I
         also have heart problems. I also had an open heart surgery five years
         ago and I have to check it regularly.

         I apologize for having changed my mind such at the last minute but
         I’m trying to see if I can get a fair sentence.

Soto also told the district court, “I know I’m guilty but I deserve an opportunity

. . . to see if I can reduce the sentence.” Appointed counsel told the district court

Soto was being pressured by his family to not plead guilty and to retain a



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different attorney. Soto confirmed that was true. When asked by the district

court why he waited until six days before trial to seek substitute counsel, Soto

told the court he had “been trying to hire [retained counsel] for a while.”

      The district court denied the request for substitute counsel, concluding Soto

had “not shown any reason for a substitution of counsel.” The court determined

the evidence did not demonstrate either a conflict of interest or a complete

breakdown of communication between Soto and appointed counsel. The court

specifically noted that Soto “said he doesn’t have any problem with [appointed

counsel].” The district court also denied the request to continue the trial,

concluding neither pressure from Soto’s family nor Soto’s desire to “get a better

deal from the government or reduce his sentence” justified a continuance. Soto,

still represented by appointed counsel, pleaded guilty two days later.

      With adjustments and enhancements, the Presentence Investigation Report

(“PSR”) calculated Soto’s total offense level as 38. Combined with Soto’s

criminal history category of I, his advisory guidelines sentencing range was 235

to 293 months’ imprisonment. Both Soto and the government objected to the

PSR. A sentencing hearing was held on August 23, 2016.

      At the beginning of the hearing, Soto’s appointed counsel advised the

district court that a “third person,” whom he believed to be named Abdullah

Qawi, had filed motions in Soto’s case. Counsel represented to the court that Mr.

Qawi “holds himself out to be a legal consultant or a paralegal with a business

                                         -4-
that is being held out as Raw, R-A-W, Legal Assistance.” The motions filed by

Mr. Qawi included a motion for a continuance, a motion to withdraw the guilty

plea, and a motion titled, “Motion For Appointment of New Counsel Due to

Conflict of Interest.” All three documents bore Soto’s signature. When Soto was

questioned by the district court, he confirmed that he had not signed any of the

motions. The district court suggested striking the motions, stating “so if we

strike these, we don’t need to address them.” Soto’s appointed counsel replied, “I

think that’s probably accurate.” The district court then struck the filings.

      During an in camera discussion, appointed counsel explained to the district

court the circumstances surrounding the filing of the motions. Appointed counsel

was not notified of the motions before they were filed but became aware of them

through the electronic case filing system. He stated he visited Soto “to get to the

root of what was going on” when he suspected Soto’s signature on the motions

had been falsified. Soto confirmed they had been filed by someone retained by

his family and that he had not signed them. Appointed counsel further informed

the court that Soto’s family had communicated Mr. Qawi’s advice about a

scheduled polygraph examination to Soto. Mr. Qawi’s advice was contrary to the

advice he had given Soto. Counsel characterized Mr. Qawi’s involvement as the

catalyst in a very brief breakdown in communication that delayed finalization of

the polygraph. He represented to the court, however, that “Mr. Soto told me that




                                         -5-
at that point he still wanted me to be his lawyer but we had an issue” with the

polygraph.

      Soto ultimately followed the advice of appointed counsel and the polygraph

examination was conducted a few days later. Because of the short delay,

however, appointed counsel was unable to provide the government with

information it requested for the sentencing hearing. Accordingly, counsel asked

the district court to continue Soto’s sentencing. The government opposed a

continuance, asserting it was prepared to go forward with sentencing even though

it did not receive the requested information. It opposed any delay because of

continuing concerns that Soto was involved in witness intimidation. After

questioning Soto’s appointed counsel about the issues surrounding the polygraph

examination, the district court denied counsel’s request to continue the

sentencing.

      The district court then ruled on the objections to the PSR, overruling

Soto’s drug-quantity objection and his objection to an obstruction enhancement.

The court sustained the government’s objection to application of the

acceptance-of-responsibility adjustment, finding Soto had engaged in “a pattern

of intimidation and harassment.” The district court also sustained a two-level

increase under § 2D1.1(b)(2) for maintaining a residence for the purpose of

distributing a controlled substance.




                                         -6-
      The district court determined Soto’s total offense level was forty-two, his

criminal history category was I, and his advisory guidelines range was 360

months’ to life imprisonment. Soto then argued for a below-Guidelines sentence,

emphasizing his family circumstances and his history and characteristics. Soto

addressed the district court himself, expressing his remorse and telling the court

he began dealing drugs because he had “a lot of bills to pay.” The district court

imposed a total term of 420 months’ imprisonment. The court explained the

sentence as follows:

      As I was saying, when I’m trying to consider what type of sentence
      is appropriate, I have to take into account the scope of defendant’s
      involvement in the drug activities which are the subject of this case.

      I take in too the fact that methamphetamine is an extremely . . .
      destructive and addictive drug which has brought a lot of human
      misery into our community and that Mr. Soto is responsible for that
      on a major scale.

      I also take into account the fact that he is in criminal history
      category one and has no prior convictions aside from two minor
      traffic offenses.

      It’s also important to know the significant danger that is presented to
      the community when drug traffickers possess firearms, as they did in
      the scope of this case.

      So taking all of these factors and others into account, it seems to me
      that defendant has not made a good case on why he should receive a
      sentence lower than what the guidelines provide.

III. Discussion

      A. Unauthorized Motions



                                         -7-
      Soto’s appeal centers on two of the three motions filed by Mr. Qawi: the

motion for new counsel and the motion to withdraw the guilty plea. Soto asserts

the motion for new counsel, even though it was not authorized by him, triggered a

duty on the part of the district court to address him personally about the

possibility of a conflict of interest. See Holloway v. Arkansas, 435 U.S. 475, 484

(1978) (holding a district court has a “duty to inquire” into a potential joint

representation conflict of interest when the court is aware of the alleged conflict

prior to trial). Although the record shows the district court discussed the matter

with appointed counsel, Soto argues that discussion cannot serve as a proxy for

the court’s duty to inquire of him personally.

      In Holloway, the case upon which Soto relies, the Supreme Court held that

a district court must “take adequate steps to ascertain whether the risk” from joint

representation warrants appointment of separate counsel. Id. at 484. The failure

of the district court to take such steps “deprive[s] [defendants] of the guarantee of

assistance of counsel” and mandates reversal. Id. The Court declined to extend

Holloway to cases in which the defendant did not raise the conflict of interest

prior to trial. Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). It held in Cuyler that

the Sixth Amendment does not require a state trial court to “initiate inquiries into

the propriety of multiple representation” unless the court “knows or reasonably

should know that a particular conflict exists.” Id. at 346-47; United States v.

Williamson, 859 F.3d 843, 852-53 (10th Cir. 2017) (“[A]bsent a credible

                                          -8-
indication of an actual conflict of interest before trial, a trial court’s duty to

inquire is limited. Prejudice will not be presumed, and the automatic reversal

rule will not apply.”).

      Both Holloway and Cuyler involved multiple representation. Cuyler, 446

U.S. at 346. Recently, this court considered whether “Holloway’s duty to inquire

(and automatic reversal if the trial court fails to inquire) extends outside the

multiple representation context.” Williamson, 859 F.3d at 853. We held “that the

automatic reversal rule applies only to multiple representation conflicts of

interest.” Id. at 856. There is no “duty to inquire into potential conflicts of

interest” when the potential conflict “is not a multiple representation conflict.”

Id. Even if the trial court “knows or has reason to know of an actual conflict”

and it fails to inquire, the automatic reversal rule does not apply and the

defendant must show prejudice. Id.

      Here, Soto argues the district court was “on notice” that there was a

potential conflict of interest. 2 It is undisputed that this potential conflict did not

      2
        During the sentencing hearing, appointed counsel admitted to the district
court there had been a breakdown in communication over a polygraph
examination but represented to the court that he and Soto had resolved the issue
and Soto “still wanted [him] to be his lawyer.” Soto nonetheless, argues the court
could not rely on counsel’s representations because counsel had “a strong self-
interest in defending himself from what he might subjectively view as spurious
accusations.” But see Holloway v. Arkansas, 435 U.S. 475, 486 (1978)
(“[A]ttorneys are officers of the court, and when they address the judge solemnly
upon a matter before the court, their declarations are virtually made under oath.”
(quotations omitted)) The record confirms counsel’s representation to the court
                                                                       (continued...)

                                           -9-
involve multiple representation. Accordingly, under this court’s holding in

Williamson, the district court had no duty to inquire and, thus, no duty to

personally address Soto at the sentencing hearing. See id. Even assuming a duty

to inquire, Soto has not shown or attempted to show any prejudice, relying on

Holloway for his assertion reversal is automatic. His argument therefore fails.

      Soto also argues the district court abused its discretion when it “overruled”

the “pro se” motion to withdraw the guilty plea. The problem with this argument

is that Soto never filed a pro se motion to withdraw his guilty plea. A third party

with no connection to Soto filed a fraudulent motion with a forged signature.

Once the district court determined the motion was not filed by Soto, it struck the

motion—the motion was not overruled. The district court did not abuse its

discretion in striking the motion.

      B. Sentencing Variance

      In his opening appellate brief, Soto argued the district court committed

procedural error by failing to acknowledge his non-frivolous arguments in favor

of a variance from the advisory guidelines range. Gall v. United States, 552 U.S.

38, 51 (2007). In his reply brief, Soto correctly acknowledges his argument is


      2
       (...continued)
that Soto had taken the polygraph and Soto does not argue an actual conflict
existed at the time of the sentencing hearing. United States v. Williamson, 859
F.3d 843, 852 (10th Cir. 2017) (“[A]n actual conflict exists when counsel is
forced to make choices advancing other interests to the detriment of his client.”
(quotation and alteration omitted)).

                                        -10-
foreclosed by this court’s opinion in United States v. Wireman, 849 F.3d 956, 963

(10th Cir. 2017), but wishes to preserve the issue for en banc review or a

certiorari petition.

IV. Conclusion

       Soto’s convictions and sentence are affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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