     Case: 11-50908       Document: 00512138217         Page: 1     Date Filed: 02/07/2013




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

                                                                            FILED
                                                                         February 7, 2013

                                       No. 11-50908                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

CARLOS FLORES OLMOS,

                                                  Defendant – Appellant



                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-1233


Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Carlos Flores Olmos appeals his drug trafficking conviction and sentence
on the ground that the district court erred in failing to inquire as to a purported
conflict of interest that arose between him and his defense counsel.                      We
AFFIRM.
                           FACTS AND PROCEEDINGS
       On May 4, 2011, Olmos was arrested at a checkpoint in El Paso, Texas,
after the car he was driving was found to contain approximately twenty-five

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50908

pounds of cocaine, wrapped in kilogram bundles and hidden in a non-factory-
installed compartment. The district court appointed a federal public defender
to represent Olmos, but a retained attorney, Francisco Macias, entered an
appearance and successfully moved to substitute himself as counsel shortly
thereafter.
       Olmos was charged by indictment with importing into the United States
and possessing with the intent to distribute five kilograms or more of a
substance containing cocaine. On June 24, Olmos entered into a plea agreement,
pleading guilty to the importation charge in return for the Government moving
to dismiss the possession charge. The Government also agreed not to oppose a
“safety valve” downward reduction pursuant to U.S. Sentencing Guidelines
Manual §§ 2D1.1(b)(16), 5C1.2 at sentencing so long as Olmos provided truthful
information about his offenses. The district court accepted Olmos’s plea on July
13.
       Olmos’s sentencing was scheduled to occur on September 15. On that day,
however, Macias requested a continuance on the ground that there had been
difficulties with the safety valve disclosure process. The district court granted
a brief continuance, and sentencing recommenced on September 19.              At
sentencing, the Government informed the court that it did not believe that
Olmos had been sufficiently honest and forthcoming to qualify for safety valve
treatment and that, over the course of three interviews, he had given various
explanations for his actions that the Government considered incredible. The
Government also noted “that prior to Mr. Macias getting there, [Olmos] inquired
about who had hired Mr. Macias. And we told him we didn’t know, but if he was
concerned about Mr. Macias, that we would be happy to relay that information
to the Court.” During the course of further questioning by the court, the
Government detailed a few instances in which the issue of Macias’s



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                                 No. 11-50908

representation of Olmos had arisen in the context of safety valve meetings
between Olmos and the Government.
      The court then questioned Macias directly. Macias disclosed that he had
been retained by a third party known to him only as “El Sobrino,” who several
times a year would send Macias $3,000 in cash along with the name of a
defendant for him to represent. Macias stated that he never had any other
contact with El Sobrino and that his practice was to withdraw in the event a
conflict arose in the course of these representations.
      The district court proceeded to question Olmos. Olmos denied knowing
anyone known by the sobriquet “El Sobrino” and told the court that Macias had
failed to tell him the identity of the man who had retained him. Olmos stated
that he never asked Macias to leave the room during his safety valve debriefings
because he “feared that would lend itself to misinterpretation” and that he “was
worried about the situation.” The district court then asked Olmos whether
Macias’s presence had affected his “ability to tell the truth,” to which Olmos
responded in the negative, and whether the declarations he had given to the
Government, which the Government had not found credible, were truthful.
Olmos replied that they had been.
      After hearing further argument from the parties as to whether Olmos
qualified for safety valve treatment, the district court denied a safety valve
reduction and sentenced Olmos to the statutory mandatory minimum of ten
years’ imprisonment. One day after Olmos’s final judgment was entered, Macias
moved to withdraw as counsel, stating that “Defense Counsel and Defendant
have developed a conflict . . . which cannot be resolved [and which] reaches
Constitutional proportions.”    The district court granted Macias leave to
withdraw and appointed Olmos new counsel. Olmos now appeals.
                          STANDARD OF REVIEW



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      “The determinations whether a conflict existed and whether the conflict
had an adverse effect [on counsel’s performance] are mixed questions of law and
fact, which we review de novo.” United States v. Infante, 404 F.3d 376, 391 (5th
Cir. 2005).
                                 DISCUSSION
      On appeal, Olmos contends that, on learning that Macias had been
retained by a third party, the district court erred in not inquiring of Olmos as to
whether he was waiving his right to conflict-free counsel, in accordance with
United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975).            “The Sixth
Amendment right to counsel includes the ‘right to representation that is free
from any conflict of interest.’” United States v. Garcia–Jasso, 472 F.3d 239, 243
(5th Cir. 2006) (quoting United States v. Vaquero, 997 F.2d 78, 89 (5th Cir.
1993)). “As a general rule, a conflict exists when defense counsel allows a
situation to arise that tempts a division in counsel’s loyalties.” United States v.
Hernandez, 690 F.3d 613, 618 (5th Cir. 2012) (quoting United States v. Burns,
526 F.3d 852, 856 (5th Cir. 2008)).
      In order for a defendant to be represented by conflicted counsel, “a district
court must conduct what is commonly known as a ‘Garcia hearing’ to ensure a
valid waiver by the defendant of his Sixth Amendment right.” Garcia–Jasso, 472
F.3d at 243 (citing Garcia, 517 F.2d at 278). At such a hearing, “the district
court must ‘ensure that the defendant (1) is aware that a conflict of interest
exists; (2) realizes the potential hazards to his defense by continuing with such
counsel under the onus of a conflict; and (3) is aware of his right to obtain other
counsel.’” Id. (quoting United States v. Greig, 967 F.2d 1018, 1022 (5th Cir.
1992)). Significantly, though, “[a] defendant must show more than a speculative
or potential conflict.” Id. “A district court need only conduct a Garcia hearing
if there is an actual conflict of interest.” Id. (emphasis added).



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                                  No. 11-50908

      Olmos argues that Macias had an actual conflict and that a Garcia hearing
was required because Macias was retained by El Sobrino, and there are
“inherent dangers that arise when a criminal defendant is represented by a
lawyer hired and paid by a third party, particularly when the third party is the
operator of the alleged criminal enterprise.” Wood v. Georgia, 450 U.S. 261,
268–69 (1981). Notwithstanding the Supreme Court’s opinion in Wood, however,
the mere fact that Macias was retained by a third party does not necessarily
mean that he was conflicted, and “[t]here is no requirement that [a Garcia
hearing] be held simply because the cost of a defendant’s legal fees have been
assumed by another person. . . . In drug cases, it is not uncommon for a third
party to pay the legal fees of the defendants. A conflict of interest does not
automatically arise from such arrangements.” United States v. Carpenter, 769
F.2d 258, 263 (5th Cir. 1985) (citation omitted).
      Olmos has advanced no argument for why Macias was actually conflicted
in his representation other than his being paid by a third party and innuendo
with respect to Macias’s rather strange business relationship with El Sobrino.
In light of Macias’s consistent denials that El Sobrino in any way directed his
representation of Olmos or was in any way involved in Olmos’s case beyond the
initial up-front payment, we fail to see how this is not merely a case of “the cost
of a defendant’s legal fees [being] assumed by another person.” Id. Given the
absence of more than a “speculative or potential conflict,” Garcia–Jasso, 472 F.3d
at 243, a Garcia hearing was not necessary.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM.




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