                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                         REVISED MAY 12, 2005
                                                            March 21, 2005
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk


                             No. 02-50665



     UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

     RICARDO M INFANTE

                     Defendant - Appellant


          Appeal from the United States District Court
            for the Western District of Texas, Pecos


Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

KING, Chief Judge:

     Defendant-Appellant Ricardo Macias Infante appeals his

conviction and sentence for conspiracy to distribute and to

possess with intent to distribute marijuana, conspiracy to import

marijuana, and possession with intent to distribute marijuana.

For the following reasons, we VACATE and REMAND to the district

court for a determination on the question whether Infante’s trial

counsel’s conflict of interest adversely affected his

representation.

                            I.   BACKGROUND

                                  -1-
     By a grand jury indictment returned on January 9, 2001,

Defendant-Appellant Ricardo Infante and four co-defendants1 were

charged in a twelve-count indictment in the Pecos Division of the

Western District of Texas.   Only counts one, two, and ten of the

indictment implicated Infante.   The charges against him were: (1)

conspiracy to distribute and to possess with intent to distribute

more than 1,000 kilograms of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846 (Count One); (2) conspiracy to import more

than 1,000 kilograms of marijuana from Mexico to the United

States in violation of 21 U.S.C. §§ 952(a), 960, and 963 (Count

Two); and (3) possession with intent to distribute, or aiding and

abetting the possession with intent to distribute, more than 100

kilograms but less than 1,000 kilograms of marijuana on June 29,

2000 in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2

(Count Ten).   The indictment charged Infante with participation

in a conspiracy spanning from January 23, 2000 to July 14, 2000.

It charged him with only a single substantive count (Count Ten),

relating to a drug-trafficking incident occurring on June 29,

2000.

     Infante pled not guilty to all counts on January 12, 2001.

His case was tried before a jury on August 20 and 21, 2001.    At


     1
        The four co-defendants were Ramon Manuel Sanchez, Saul
Montoya Salcido, Maria Teresa Zubia-Salgado, and Mayla Brenisa
Polanco-Pando. Sanchez was severed prior to trial. Salcido
remains a fugitive. Zubia-Salgado and Polanco-Pando both pled
guilty.

                                 -2-
trial, the government presented evidence to establish six

different incidents in which members of the alleged conspiracy

were apprehended while transporting marijuana from Mexico into

the United States.2   First, the government introduced evidence

that on January 23, 2000, Zubia-Salgado and Polanco-Pando were

stopped at a checkpoint south of Marfa, Texas while driving a

pickup truck that was found to have a hidden compartment

containing 369.86 pounds of marijuana.    Neither Zubia-Salgado nor

Polanco-Pando testified at Infante’s trial.

     Second, the government presented evidence that on January

29, 2000, Juan Gallegos-Natera was intercepted in or around

Alpine, Texas while driving a pickup truck with a secret

compartment containing 290.72 pounds of marijuana.    Natera

testified that he was promised payment by Sanchez, whom he met

through a friend, for transporting the marijuana from Mexico into

Texas.   However, he stated that he had never met nor heard of

Infante.

     Third, the government set forth evidence that on February

26, 2000, the border patrol stopped Kristy Navarette and Lionel

Campos, Salcido’s nephew, while driving a Ford Bronco through the

checkpoint south of Marfa, Texas.     The border patrol discovered

     2
        The evidence presented in relation to each incident
included the testimony of border patrol agents, Drug Enforcement
Agency (“DEA”) agents, and immigration inspectors who were
involved in the apprehension of the drug smugglers. With the
exception of one incident, the government also presented the
testimony of the apprehended drug smugglers themselves.

                                -3-
96.52 pounds of marijuana hidden in the Bronco’s gas tank.

Navarette admitted that she had transported drugs across the

border on a number of other occasions before being caught on

February 26, 2000.   She stated that she had used a Ford Bronco

and a blue 1995 Chevy Suburban on those occasions.   Navarette

further testified that Campos, Sanchez, and Salcido were all

players in the drug-trafficking operation with which she was

involved, that Salcido is a known drug trafficker in the Ojinaga,

Mexico area, and that she had met Polanco-Pando at some point in

connection with this operation as well.   However, she indicated

that she never had met nor heard of Infante.

     Fourth, the government presented evidence that on May 10,

2000, Benjamin Belloc was stopped at the checkpoint south of

Marfa while driving a pickup truck that was discovered to have a

hidden compartment containing 285.3 pounds of marijuana.   Belloc

admitted that Sanchez hired him to transport the marijuana into

the United States and that he had smuggled drugs into the United

States on at least five separate occasions.    He testified that he

had previously used a black truck, a red and gray Ford truck, and

a blue Suburban on those occasions.   He also stated that he did

not know Infante and never had seen him before.

     Fifth, the government introduced evidence that on June 29,

2000, the border patrol stopped Benigno Castellon while he was

driving a Suburban that was found to have a secret compartment

containing 715.46 pounds of marijuana.    Castellon testified that

                                -4-
prior to being arrested for drug trafficking, he had worked at

Infante’s auto-mechanic shop, Infante Motors.   He stated that he

had gone to Mexico with Infante on or about June 18, 2000, where

he met Salcido, who is Infante’s brother-in-law.    Castellon

testified that he agreed at that time to transport his first load

of marijuana (roughly forty-seven pounds) into the United States

in exchange for $2,000.   Castellon stated that he delivered the

first marijuana load from Mexico to Infante’s house.    He further

testified that on June 29, 2000, Infante drove him to the bus

station so that he could travel to Mexico, pick up the Suburban

containing a second load of marijuana, and drive it back to

Texas.    It was while transporting this second load that Castellon

was apprehended by the authorities.    The Suburban that Castellon

was driving when he was arrested was confiscated.    An examination

of the impounded Suburban revealed that it had been freshly

painted and that it was blue underneath the new coat of white

paint.3

     3
          The government concedes that Castellon is the only
apprehended drug smuggler to implicate Infante directly.
However, the government also introduced phone records showing
that Infante’s cell phone had been used to call certain players
in the cross-border drug runs described above. For example,
between April 8 and July 29, 2000, twelve calls were made from
Infante’s cell phone to Campos’s phone. Between June 25 and June
28, 2000, roughly twenty calls were made from Sanchez’s cell
phone to Infante’s cell phone. On June 25, 2000, five calls were
made from Infante’s cell phone to Sanchez’s cell phone and three
calls were made from Infante’s cell phone to Salcido’s cell
phone. Between May 18 and June 28, 2000, eight calls were made
from Infante’s to Castellon’s phone. After Castellon was
arrested on June 29, Infante’s cell phone was used to call the

                                 -5-
     Sixth, the government presented evidence that on July 14,

2000, Barbara Rivera-Hernandez was apprehended while driving a

pickup truck between 100 and 200 yards from the US-Mexico border

in Presidio, Texas.    The border patrol discovered 341.24 pounds

of marijuana hidden in a compartment under the floor-board of the

truck.    Rivera-Hernandez testified that Salcido, a known drug

trafficker, had arranged for her to transport the marijuana into

the United States.    She also testified that she did not know

Infante.

     On August 21, 2001, the jury found Infante guilty of all

three counts of the indictment.    However, the jury found Infante

guilty on the conspiracy counts with respect to only between 100

and 1,000 kilograms of marijuana, in contrast to the indictment,

which charged Infante with conspiracy involving more than 1,000

kilograms.    With respect to Count One, the jury expressly noted

on its verdict form that it found Infante guilty only “as of June

29, 2000.”    The district court interpreted this note to mean that

the jury found that Infante was involved only in the one

transaction, which involved Castellon and occurred on June 29,

2000.    Accordingly, the district court directed the probation

officer assigned to Infante’s case to take into consideration the

amount of marijuana involved only in that single transaction when

preparing the presentencing report (“PSR”).    The probation


Presidio County Sheriff’s Office, the Presidio County Jail, the
Brewster County Sheriff’s Office, and the Brewster County Jail.

                                  -6-
officer complied with this instruction, listing 324.53 kilograms

(715.46 pounds) as the amount of marijuana attributable to

Infante.4    The PSR, applying the 2001 edition of the U.S.

Sentencing Guidelines Manual, recommended a base offense level of

twenty-six.     See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(a)(3)(c)(7)

(2001).5    The PSR also recommended an upward adjustment of two

levels for obstruction of justice because Infante became a

fugitive from justice after he was convicted.        See U.S.S.G.

§ 3C1.1.    The PSR gave Infante four criminal history points,

putting him in a criminal history category of three.         The PSR

noted that the total recommended period of incarceration under

the applicable Guidelines for an offense level of twenty-eight

and a criminal history category of three was 97 to 121 months.

As to each of the three counts, the district court sentenced

Infante to 109 months of imprisonment, followed by five years of

supervised release, the sentences on all counts to run

concurrently.

     Infante now appeals his conviction and sentence.         He raises

seven issues on appeal.      First, Infante argues that the

government presented insufficient evidence to convict him.

Second, he asserts that his conviction should be reversed because


     4
        The total amount of marijuana seized by the government in
relation to the alleged conspiracy was 2,250.45 kilograms.
     5
        The U.S. SENTENCING GUIDELINES MANUAL is hereinafter referred
to as the “Guidelines” or “U.S.S.G.”

                                   -7-
the government failed to disclose that Castellon had been ordered

to undergo a psychological evaluation to determine if he was

competent to stand trial in a separate, but related, criminal

case against him (for trafficking drugs on June 29, 2000 and for

his involvement in the drug conspiracy).     Third, Infante claims

that the district court erred in denying his motion for a new

trial based on newly acquired evidence that Castellon suffers

from memory problems.   Fourth, he claims that the district court

erred by admitting evidence that he received traffic tickets for

failure to change the registration on a vehicle he was driving to

Mexico.   Fifth, Infante asserts that the district court

improperly commented on the evidence in a written response to a

jury note.   Sixth, he argues that he was denied effective

assistance of counsel because his attorney labored under a

conflict of interest.   Seventh, he argues that the district court

erred in enhancing his sentence for obstruction of justice.     We

address each of these arguments in turn.

                          II.   DISCUSSION

A.   Sufficiency of the Evidence

     Infante asserts that the evidence presented at his trial was

insufficient to sustain his conviction.6     This court reviews a

defendant’s claim of insufficient evidence to determine “whether,



     6
        Infante moved for a judgment of acquittal at the close of
the government’s case and at the close of all evidence.

                                   -8-
after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Bellew, 369 F.3d 450, 452 (5th Cir. 2004)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (internal

quotation marks omitted).   In applying this standard, we must

“accept all reasonable inferences [that] tend to support the

jury’s verdict.”   United States v. McDow, 27 F.3d 132, 135 (5th

Cir. 1994).   “The evidence need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is free to choose

among reasonable constructions of the evidence.”   United States

v. Dadi, 235 F.3d 945, 949-50 (5th Cir. 2000) (quoting United

States v. Bermea, 30 F.3d 1539, 1551 (5th Cir. 1994)) (internal

quotation marks omitted).

     The jury convicted Infante of conspiracy to distribute

marijuana and possess marijuana with the intent to distribute

under 21 U.S.C. §§ 841(a) and 846 (Count One) and conspiracy to

import marijuana under 21 U.S.C. §§ 952(a), 960, and 963 (Count

Two).   To establish a conspiracy under these sections, the

government must prove beyond a reasonable doubt that: (1) an

agreement existed between the defendant and one or more persons

to violate the applicable narcotics laws; (2) each defendant knew

of the conspiracy and intended to join it; and (3) the defendant

participated voluntarily in the conspiracy.   United States v.

                                -9-
Medina, 161 F.3d 867, 872 (5th Cir. 1998).    An express agreement

is not required; a tacit, mutual agreement with common purpose,

design, and understanding will suffice.    United States v. Prieto-

Tejas, 779 F.2d 1098, 1103 (5th Cir. 1986).    Moreover, because

secrecy is the norm in drug conspiracies, each element of the

crime may be established by circumstantial evidence.    United

States v. Bobo, 586 F.2d 355, 368 (5th Cir. 1978); see also

United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.

1988).

     The jury also convicted Infante of possession of marijuana

with intent to distribute, including aiding and abetting such

possession with intent to distribute, under 18 U.S.C. § 2 and 21

U.S.C. § 841(a) (Count Ten).   To convict a defendant of

possession with intent to distribute, the government must prove:

(1) knowing (2) possession of an illegal substance (3) with the

requisite intent to distribute.    See United States v. Garza, 990

F.2d 171, 174 (5th Cir. 1993).    A person who aids and abets

another to commit a crime is punishable as a principal.    18

U.S.C. § 2.   For the government to prove guilt under an aiding

and abetting theory, it must show that the defendant: (1)

associated with a criminal venture; (2) participated in the

venture; and (3) sought by action to make the venture successful.

United States v. Lombardi, 138 F.3d 559, 561 (5th Cir. 1998)

(noting further that “to aid and abet, a defendant must share in

the intent to commit the offense as well as play an active role

                                 -10-
in its commission”).   To be guilty of possession with intent to

distribute, the defendant must have aided and abetted both the

possession and the intent to distribute.    United States v.

Williams, 985 F.2d 749, 753 (5th Cir. 1993).

     Infante claims that the evidence introduced at his trial was

insufficient to allow a reasonable juror to find him guilty of

these crimes beyond a reasonable doubt.    We disagree.   The

government introduced the testimony of Castellon, which

established that Castellon and Infante had traveled to Mexico

together on or around June 18, 2000.   According to Castellon’s

testimony, once in Mexico, Infante introduced Castellon to

Infante’s brother-in-law, Salcido.    The three men then arranged

for Castellon to drive a small shipment of marijuana

(approximately forty-seven pounds) across the border into Texas.

Castellon did so and delivered the drugs to Infante at his home.

Castellon also stated that Infante discussed the arrangements for

the June 29 load and that Infante drove Castellon to the bus

station, where Castellon took the bus to Mexico to pick up a

second load of marijuana.   Castellon testified that Infante knew

the drug-related purpose of the trip because the two men had

discussed the plans during the preceding weeks and because

Salcido had contacted Infante about the load a number of times on

his cell phone.   This testimony, when viewed in the light most

favorable to the prosecution, sufficiently supported the jury’s


                               -11-
verdict.   See United States v. Turner, 319 F.3d 716, 721 (5th

Cir. 2003), cert. denied, 538 U.S. 1017 (2003) (stating that the

uncorroborated testimony of a co-conspirator can provide

constitutionally sufficient evidence to sustain a conviction).

     Moreover, Castellon’s testimony was corroborated by the

telephone toll records establishing a connection between Infante,

Salcido, and Sanchez.   For example, a number of calls were made

between these three men’s cell phones, including an increased

number of calls in the days before Castellon’s load of marijuana

was scheduled to go across the border.    In addition, a number of

calls were made from Infante’s cell phone to the Presidio and

Brewster county jails and Sheriffs’ offices on the day after

Castellon was arrested.   Infante maintains on appeal that no

evidence proves the contents of these calls were drug related,

and he further argues that the discussions theoretically could

have been family or work related.     Although this might be true,

it does not make the jury’s inference of Infante’s involvement

with the drug conspiracy unreasonable, especially because when

Infante took the stand, he did not claim to have discussed non-

drug-related matters in these calls.    Instead, he denied ever

making the twenty-plus calls to Sanchez (he denied knowing

Sanchez at all) or the calls to the jails the day after Castellon

was arrested.   In fact, he maintained that he had no idea who had

made any of these calls with his cell phone.    The jury reasonably


                               -12-
disbelieved his explanation in light of the evidence that very

few other people had access to Infante’s cell phone.    Similarly,

the jury reasonably disbelieved Infante’s testimony that these

calls must have been made by an unknown member of the general

public who broke into Infante’s garage in the middle of the night

and used his cell phone to call the drug traffickers.   In sum,

the jury discredited Infante’s testimony and found his story to

be unbelievable.   Accordingly, the testimony of Castellon

providing direct evidence, which was supported by other

circumstantial evidence, sufficiently supported the jury’s guilty

verdict on all three counts.

B.   Disclosure of Evidence under Brady

     Next, Infante argues that his conviction should be reversed

because the government violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose the fact that Castellon had filed

a motion requesting a psychiatric evaluation of himself in

connection with his own criminal trial for drug trafficking and

that the district court had granted the motion and ordered the

evaluation.   This court reviews allegations of Brady violations

de novo.   United States v. Hughes, 230 F.3d 815, 819 (5th Cir.

2000).   To prevail upon his Brady claim, Infante must establish

that: (1) the prosecution did not disclose evidence; (2) the

evidence was favorable to the defense; and (3) the evidence was

material--i.e., there is a reasonable probability that if the


                               -13-
government had disclosed the evidence, the result of the

proceeding would have been different.    Lawrence v. Lensing, 42

F.3d 255, 257 (5th Cir. 1994).

     Even if we assume, without deciding, that Infante has

established the factors required for a Brady claim, his argument

still fails.   “Brady rights are not denied where the information

was fully available to the defendant and his reason for not

obtaining and presenting such information was his lack of

reasonable diligence.”   United States v. Dean, 722 F.2d 92, 95

(5th Cir. 1983); accord Wilson v. Whitley, 28 F.3d 433, 435 n.3

(5th Cir. 1994) (collecting cases); Smith v. Black, 904 F.2d 950,

964 (5th Cir. 1990) (noting that Brady “exempts information that

the defense could have obtained from other sources by exercising

reasonable diligence”), cert. granted and vacated on other

grounds, 503 U.S. 930 (1992), reinstated in relevant part on

remand, 970 F.2d 1383 (5th Cir. 1992); United States v. Fogg, 652

F.2d 551, 559 (5th Cir. 1981).    Here, Infante concedes that the

motion seeking, and the court order granting, Castellon a

psychiatric exam was part of Castellon’s file for the criminal

case against him for drug trafficking on June 29, 2000--the same

incident that formed part of the conspiracy case against Infante.

Infante does not deny that Castellon’s case file was a matter of

public record, that he could have obtained the file upon request,

and that the psychiatric exam order would have been apparent upon


                                 -14-
review of the file.    Instead, he argues that due diligence does

not require a criminal defendant or his attorney to obtain and

review the court file on the government’s star witness.      We

cannot agree, especially when the file pertains to an alleged co-

conspirator and the charges against the co-conspirator are so

closely related to the conspiracy with which the defendant is

charged.   Under these particular facts, Infante’s Brady argument

is without merit.

C.   Motion for New Trial and Newly Discovered Evidence

     Infante also argues that the district court erred by not

granting his motion for a new trial.      Several months after

Infante was convicted, the previously discussed psychological

evaluation of Castellon was prepared in connection with the

criminal case against him.      Infante argues that this

psychological evaluation, which disclosed that Castellon suffered

from memory problems, constitutes newly discovered evidence

warranting a new trial.

     This court reviews the denial of a motion for new trial for

an abuse of discretion.       United States v. Jaramillo, 42 F.3d 920,

924 (5th Cir. 1995).   “We disfavor these motions and view them

with great caution.”    Id.    We find that the district court did

not abuse its discretion in denying Infante’s motion.      To receive

a new trial under FED. R. CRIM. P. 33 for newly discovered

evidence, Infante “must prove that: (1) the evidence is newly


                                   -15-
discovered and was unknown to the defendant at the time of trial;

(2) failure to detect the evidence was not due to a lack of

diligence by the defendant; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5)

the evidence introduced at a new trial would probably produce an

acquittal.”   Jarmillo, 42 F.3d at 924.

     The district court denied Infante’s motion because it

remained unconvinced that the introduction of the psychiatric

report probably would have produced an acquittal.   We cannot say

that the court abused its discretion in denying Infante’s motion

because, as the district court noted, Castellon admitted on the

stand that he had memory problems and that he had to write things

down to remember.   Thus, the jury had information that

Castellon’s memory was imperfect, and the defense had the

opportunity to cross-examine him on that point.   The jury

credited Castellon’s testimony when compared to Infante’s

conflicting testimony notwithstanding their knowledge that

Castellon had a bad memory.   Furthermore, Castellon’s critical

testimony that Infante was involved in the alleged conspiracy did

not rely heavily on a memory of intricate facts such as the

precise order of dates and times, and it was supported by

corroborating evidence in the form of phone records.   In

addition, although the psychiatric evaluation placed Castellon in

the below-average range in the area of immediate memory, it


                               -16-
placed him well within the average range for working memory.       In

light of these facts, we cannot say that the introduction of the

information contained in the psychiatric evaluation probably

would have resulted in an acquittal.       Thus, the district court

did not err in denying Infante’s motion for a new trial.

D.   404(b) Evidence

     Infante also complains that the district court erred in

admitting evidence that he received traffic tickets for driving a

Suburban without registration and for failing to change the name

on the registration.     DEA Agent Mike Hill testified at Infante’s

trial that after he found the traffic tickets in Infante’s home,

he questioned Infante about them.       Infante replied that he had

received the tickets in December 2000 (which is after the scope

of the conspiracy with which Infante was charged) while he was

driving a 1984 Chevy Suburban to Mexico to have it painted.7      The

government presented other evidence at trial that the

conspirators drove unregistered vehicles to Mexico where they had

them painted before using them to transport marijuana back into

the United States.     Infante argues that this evidence is

extrinsic to the crimes with which he was charged and that it is




     7
        Infante testified that he drove the Suburban to Mexico (a
full day’s round trip) to have it painted there because it was
considerably less expensive than having it painted in the United
States.
                                 -17-
inadmissible propensity evidence under FED. R. EVID. 404(b).8

     Because Infante did not object to the admission of this

evidence at trial, our review is for plain error.   See United

States v. Avants, 367 F.3d 433, 443 (5th Cir. 2004), pet. for

reh’g denied, 2004 WL 1335740 (5th Cir. 2004).   Under this

standard, Infante “must show clear or obvious error that affects

his substantial rights; if he does, this court has discretion to

correct a forfeited error that seriously affects the fairness,

integrity, or public reputation of judicial proceedings, but we

are not required to do so.”   United States v. Redd, 355 F.3d 866,

874 (5th Cir. 2003) (internal quotation marks omitted).

Infante’s claim fails under this standard.

     For admission under Rule 404(b), extrinsic evidence must

satisfy two criteria: “(1) it must be relevant under Federal Rule

of Evidence 401 to an issue other than the defendant’s character;

and (2) it must have probative value that substantially outweighs

its prejudicial impact under Federal Rule of Evidence 403.”

United States v. Walters, 351 F.3d 159, 165 (5th Cir. 2003);

United States v. Beechum, 582 F.2d 898, 911-13 (5th Cir. 1978)



     8
         Rule 404(b) provides that:

     Evidence of other crimes, wrongs, or acts is not
     admissible to prove the character of a person in order
     to show action in conformity therewith. It may,
     however, be admissible for other purposes, such as
     proof of motive, opportunity, intent, preparation,
     plan, knowledge, identity, or absence of mistake or
     accident . . . .
                               -18-
(en banc).   Here, the evidence that Infante was caught driving an

unregistered Suburban to Mexico where he planned to have the

vehicle painted is relevant under Rule 401 to an issue other than

Infante’s character because it links Infante to the method used

by the drug conspirators for trafficking drugs into the United

States.   This probative value substantially outweighed any

marginal prejudicial impact that might have arisen from the

information that Infante received traffic tickets for driving an

unregistered vehicle.   Other than connecting him to the methods

used by the drug conspiracy, the evidence of his receipt of a

ticket for failing to register a vehicle did not show that

Infante had a propensity to commit crime or had a dishonest or

otherwise unlawful character.   Regardless, even if the evidence

were wrongly admitted, its admission did not seriously affect the

fairness, integrity, or public reputation of the judicial

proceedings.   Thus, reversal of Infante’s conviction is not

warranted on this ground.

E.   Comment on the Evidence

     Infante also argues that his conviction should be reversed

because the district court improperly commented on the evidence.

During its deliberations, the jury wrote a note to the district

court asking: “The Suburban that [Infante] was pulled over by the

DPS--and rec[ei]ved a ticket for not having registration on it.

Is it the same one that was confiscated?”   The district court

responded in writing: “There is no evidence either way.”    Infante
                                -19-
claims that this was an incorrect characterization because the

evidence showed that the Suburban that Naverette admitted to

having used to transport marijuana was a 1995 model, whereas the

Suburban that Infante drove when he received his ticket was a

1984 model.    He argues that, although he did not object at trial,

the comment should be reviewed for abuse of discretion rather

than plain error because the record does not show that he had an

opportunity to object (i.e., it does not show that he knew the

judge had received the note and intended to comment on the

evidence).    We need not decide the proper standard of review

here, however, because Infante’s argument fails under either

standard.

      The government points out that, although the Assistant

United States Attorney (“AUSA”) argued the inference that

Navarette (and Belloc) had used the same vehicle as Castellon,

the Suburban that was confiscated was the one Castellon was

driving when he was arrested on June 29, 2000, and no evidence

indicates the year of that Suburban.    Thus, no evidence directly

linked or refuted a possible link between the confiscated

Suburban and the unregistered Suburban that Infante was driving

when he received his ticket.

     Infante also complains that the district court did not

instruct the jury that it was not bound by his comment on the

evidence.    Although the district court did not specifically

admonish the jury when it answered this particular question, the
                                -20-
court instructed the jury a number of times throughout the trial

that the jury, and not the court, is the sole judge of the facts.

More important, even if the district court did so err, any such

error was harmless because the jury had ample evidence before it

to find Infante guilty even if it had been conclusively proven

that the Suburbans driven by Castellon and Infante were not the

same.    See United States v. Mitchell, 166 F.3d 748, 752 (5th Cir.

1999).    Thus, the district court’s comment on the evidence was

not reversible error.

F.   Conflict of Interest

     Infante argues that he was denied his constitutional right

to effective assistance of counsel because his attorney labored

under a conflict of interest.     “Under the Sixth Amendment, if a

defendant has a constitutional right to counsel, he also has a

corresponding right to representation that is free from any

conflict of interest.”      United States v. Vaquero, 997 F.2d 78, 89

(5th Cir. 1993) (citing Wood v. Georgia, 450 U.S. 261, 271

(1981)).    Infante’s trial counsel, Anthony Foster (“Attorney

Foster” or “Foster”), represented two of the witnesses who

testified against Infante, Gallegos-Natera and Rivera-Hernandez,

in their own criminal cases.     Those cases involved Gallegos-

Natera and Rivera-Hernandez’s transportation of marijuana into

the United States on January 29, 2000 and July 14, 2000.     Those

drug-smuggling incidents were, coincidentally, the same incidents

about which the witnesses testified at Infante’s trial in support
                                  -21-
of the conspiracy charges.

     Before trial, the government filed a Rule 44 motion to bring

Attorney Foster’s potential conflict of interest to the district

court’s attention.    The district court held a limited hearing on

the matter.9   At that hearing, the AUSA stated that he saw a

potential conflict of interest but did not believe an actual

conflict existed.    The AUSA indicated that Foster represented

Gallegos-Natera and Rivera-Hernandez previously in their own

criminal cases but that neither witness knew anything about

Infante or would directly implicate him in their testimony.

Foster explained to the court that he had not gained any

confidential information from either Gallegos-Natera or Rivera-

Hernandez about Infante’s case.    The court asked whether these

two prospective witnesses were former clients of Attorney Foster,

and Foster replied that they were former clients in the sense

that they had pled guilty and had been sentenced.    However,

Foster added that if Gallegos-Natera or Rivera-Hernandez did

testify against Infante, then he would “pull [his] files and run

over to the [g]overnment’s office and ask for a Rule 35 [motion

for a reduction in their sentences for substantial assistance in

the prosecution of Infante] on [behalf of] the former clients.”

Notwithstanding this statement, the district court concluded that


     9
        Although the district judge presiding over Infante’s
trial was Judge W. Royal Furgeson, Jr., visiting Judge Stanwood
Duval presided over the hearing relating to Infante’s attorney’s
possible conflict of interest.
                               -22-
no conflict of interest existed and that there was therefore no

need to go into a more extensive Garcia10 hearing.   Accordingly,

the district court did not question Infante regarding his

understanding of the potential conflict of interest, and Infante

did not waive his right to conflict-free representation.

     As noted above, Gallegos-Natera and Rivera-Hernandez both

testified against Infante at his trial, but neither one directly

implicated him in the alleged conspiracy.   Attorney Foster’s

cross-examination of these witnesses neither disputed their

testimony that their drug transportation efforts were arranged by

Sanchez and Salcido nor did it contest their credibility or

motive for testifying against Infante (by, for example, delving

into the details of their plea agreements or their hopes of

receiving a reduction in their sentences for substantial

assistance).   Instead, Foster limited his cross-examination to


     10
        United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).
As we explained in United States v. Newell, 315 F.3d 510, 519-20
(5th Cir. 2002):

     After twenty-seven years the requirements of United
     States v. Garcia are at the hand of every trial judge
     in the circuit. It commands that the district court
     “address each defendant personally and forthrightly
     advise him of the potential dangers of representation
     by a counsel with a conflict of interest” and detail
     specifics about potential conflicts that are then
     foreseeable. The trial court should then seek to
     elicit a response from each defendant “that he
     understands the details of his attorney’s possible
     conflict of interest and the potential perils of such a
     conflict.”

(quoting Garcia, 517 F.2d at 278) (footnotes omitted).
                               -23-
eliciting testimony that the witnesses had no knowledge of any

involvement in the conspiracy by Infante.   Infante argues that

these facts demonstrate that he was denied his right to conflict-

free counsel.

     To prevail on his ineffective-assistance-of-counsel claim,

Infante must show that his trial attorney was acting under the

influence of an actual conflict of interest that adversely

affected his performance at trial.   See Cuyler v. Sullivan, 446

U.S. 335 (1980); see also Strickland v. Washington, 466 U.S. 668

(1984); Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000).

He need not show prejudice in the sense that the outcome of the

proceeding would have been different if it were not for his

attorney’s conflict of interest.11   Perillo, 205 F.3d at 781-82

(“Assuming the defendant establishes an actual conflict that

adversely affected counsel’s performance, prejudice is presumed


     11
          As we noted in Perillo:

     The Cuyler standard applicable when a criminal
     defendant alleges that counsel’s performance was
     impaired by an actual conflict of interest differs
     substantially from the Strickland standard generally
     applicable to Sixth Amendment ineffectiveness claims.
     Strickland requires a showing that counsel’s
     performance was deficient, in that it fell below an
     objective standard of reasonableness, as well as a
     showing of prejudice, which is defined as a reasonable
     probability that counsel’s error changed the result of
     the proceeding. Cuyler, on the other hand, permits a
     defendant who raised no objection at trial to recover
     upon a showing that an actual conflict of interest
     adversely affected counsel’s performance.

205 F.3d at 781 (internal citations omitted).
                               -24-
without any further inquiry into the effect of the actual

conflict on the outcome of the defendant’s trial.”).   The Cuyler

standard applies here because Infante’s claim involves his

attorney’s conflict of interest stemming from multiple

representation, rather than a conflict of interest springing

“from a conflict between the attorney’s personal interest and

that of his client.”   United States v. Newell, 315 F.3d 510, 516

(5th Cir. 2002) (quoting Beets v. Scott, 65 F.3d 1258, 1265 (5th

Cir. 1995) (en banc)).12   The determinations whether a conflict

existed and whether the conflict had an adverse effect are mixed



     12
        The Cuyler standard applies to Infante’s claim
notwithstanding the Supreme Court’s recent decision in Mickens v.
Taylor, 535 U.S. 162 (2002). In Mickens, the Supreme Court noted
that it has never extended Cuyler to cases of successive, as
opposed to concurrent, representation, and the Court expressed
concern about whether Cuyler or Strickland provides the proper
standard for resolving conflict-of-interest claims involving
successive representation. See Mickens, 535 U.S. at 174-76. On
the facts here, however, we are reluctant to conclude that
Mickens’s distinction between concurrent and successive
representations resolves Infante’s claim that Foster was laboring
under an actual conflict of interest. The representations at
issue here were closely related in subject matter (all three
defendants were charged with the same conspiracy) and time. See
Hall v. United States, 371 F.3d 969, 974 (7th Cir. 2004)
(distinguishing the defendant’s successive-representation claim
from the Mickens distinction between concurrent and successive
representations because the representations in Hall were close in
time and were of closely interrelated subject matter).
Furthermore, this case is unique because Attorney Foster
indicated that he would actively lobby the government to file a
Rule 35 motion on behalf of Gallegos-Natera and Rivera-Hernandez
if they testified against his client Infante. Moreover, we
continue to be bound by circuit precedent applying Cuyler to
cases of successive representation. See, e.g., Perillo, 205 F.3d
at 797-99; United States v. Martinez, 630 F.2d 361, 362-63 (5th
Cir. 1980).
                               -25-
questions of law and fact, which we review de novo.   Strickland,

466 U.S. at 698; Perillo, 205 F.3d at 781.

     Courts of appeals applying Cuyler traditionally have couched

its test in terms of two questions: (1) whether there was an

actual conflict of interest, as opposed to a merely potential or

hypothetical conflict; and (2) whether the actual conflict

adversely affected counsel’s representation.   See, e.g., Perillo,

205 F.3d at 782; Hernandez v. Johnson, 108 F.3d 554, 559-61 (5th

Cir. 1997).   However, in Mickens, the Supreme Court announced

that “the Sullivan standard is not properly read as requiring

inquiry into actual conflict as something separate and apart from

adverse effect.   An ‘actual conflict,’ for Sixth Amendment

purposes, is a conflict of interest that adversely affects

counsel’s performance.”   Mickens, 535 U.S. at 172 n.5.

Regardless of this clarification of the terminology, the relevant

questions remain the same, and we must ask whether Attorney

Foster labored under a conflict of interest, which was not merely

hypothetical, and whether that conflict adversely affected the

representation (i.e., whether it was an actual conflict).     See

McFarland v. Yukins, 356 F.3d 688, 705-06 (6th Cir. 2004) (noting

that Mickens changed the terminology, but not the substance, of

the Cuyler test); Moss v. United States, 323 F.3d 445, 467 n.23

(6th Cir. 2003).13


     13
          As the Sixth Circuit explained:

                                -26-
     The district court concluded that Attorney Foster did not

labor under any conflict of interest.   We disagree.    “A conflict

[of interest] exists when defense counsel places himself in a

position conducive to divided loyalties.”    United States v.

Medina, 161 F.3d 867, 870 n.1 (1998) (quoting United States v.

Carpenter, 769 F.2d 258, 263 (5th Cir. 1985)) (alteration in

original) (internal quotation marks omitted); accord Mitchell v.

Maggio, 679 F.2d 77, 79 (5th Cir. 1982).    This question is highly

fact-sensitive.   See Perillo, 205 F.3d at 782, 798-99.    Whether a

conflict of interest exists depends on a number of factors,

including, but not limited to, whether the attorney has

confidential information that is helpful to one client but

harmful to another; whether and how closely the subject matter of

the multiple representations is related; how close in time the

multiple representations are related; and whether the prior

representation has been unambiguously terminated.      See id. at

798-99.

     Although Attorney Foster denied having learned any relevant

confidential information from his former clients while


     In Mickens, the Supreme Court clarified its prior
     definition of the term “actual conflict of interest” as
     comprising both requirements of the Sullivan test--a
     conflict of interest and adverse effect. . . . [I]t
     appears that the “actual conflict of interest” required
     in the first prong of the court’s test requires only
     that the petitioner demonstrate a real or genuine, as
     opposed to a hypothetical, conflict of interest.

Moss, 323 F.3d at 467 n.23
                               -27-
representing them, the subject matter of the representations was

nearly identical.   Foster represented Gallegos-Natera and Rivera-

Hernandez in their own criminal cases, and the crimes to which

they pled guilty in those cases were part of the same alleged

conspiracy with which Infante was charged.    Gallegos-Natera and

Rivera-Hernandez’s testimony at Infante’s trial consisted

primarily of recounting the crimes with which they were charged

in the cases in which Foster represented them.    Moreover,

Foster’s representation of the two witnesses had not been

unambiguously terminated because he admitted that he would seek a

substantial assistance motion from the government for their

testimony against his new client Infante.    Even if Foster’s

representation of the witnesses was actually completed prior to

Infante’s trial, the representations were relatively close in

time to his representation of Infante.   These factors support our

conclusion that a conflict of interest did in fact exist.       See

id.   Once Gallegos-Natera and Rivera-Hernandez took the stand to

testify against Infante, Foster was put in a position conducive

to divided loyalties because he had to choose between vigorously

cross-examining his former clients, which might jeopardize their

chances of the government filing a Rule 35 motion on their

behalf, and not vigorously cross-examining them, which would risk

allowing the government to establish through their testimony an

essential element of the case against Infante--namely, that a

conspiracy existed.   Cf. Perillo, 205 F.3d at 801-02 (finding,
                               -28-
under the particular facts of the case, that a conflict existed

when an attorney cross-examined his own client as an adverse

witness); Hoffman v. Leeke, 903 F.2d 280, 285-87 (4th Cir. 1990)

(finding that an attorney labored under a conflict of interest

when he cross-examined one client as an adverse witness in the

related trial of another client); United States v. Martinez, 630

F.2d 361, 362-63 (5th Cir. 1980) (finding a conflict when an

attorney previously represented a witness who testified against a

current client in a related matter).   Thus, Foster labored under

a conflict of interest.

      However, the question remains whether this conflict of

interest was an actual conflict in the sense that it adversely

affected Attorney Foster’s representation of Infante.    “An

adverse effect on counsel’s performance may be shown with

evidence that counsel’s judgment was actually fettered by concern

over the effect of certain trial decisions on other clients.”

Perillo, 205 F.3d at 807 (internal quotation marks omitted).

      [W]hen a [defendant’s] claim is premised solely upon
      what a conflicted lawyer failed to do on his or her
      behalf, the [defendant] must generally establish
      adverse effect by demonstrating that there was some
      plausible alternative defense strategy that could have
      been pursued, but was not, because of the actual
      conflict.

Id.   Infante argues that Foster should have pursued a strategy at

trial designed to show that no drug conspiracy existed at all

(which would negate an essential element of the conspiracy

charges) but that he neglected to do so because of his
                               -29-
conflicting duty to his other clients to request that the

government file a substantial assistance motion for their

testimony against Infante.   The government argues that the

strategy that Foster pursued, i.e., questioning the witnesses

only enough to show that they had no knowledge of Infante, was

effective, as evidenced by the jury’s finding that Infante was

guilty of conspiracy only as to the June 29 load.

     Although we are satisfied that the record demonstrates that

a conflict on interest existed, we are not prepared to say that

the record is sufficiently developed to allow us to determine

whether Attorney Foster’s conflict of interest adversely affected

his performance.   Therefore, it is necessary to vacate Infante’s

conviction and remand to the district court for a determination

on the question whether Foster’s conflict of interest adversely

affected his representation of Infante.   See United States v.

Salado, 339 F.3d 285, 291-92 (5th Cir. 2003) (remanding to the

district court on direct appeal for a determination of whether an

actual conflict of interest existed and, if so, whether the

conflict adversely affected the attorney’s performance).

G.   Sentencing

     1.    Application of Obstruction of Justice Enhancement

     Infante argues that the district court erred in determining

that his sentence should be enhanced for obstruction of justice

under the Guidelines.   We review the district court’s factual

determination that Infante obstructed justice for clear error.
                               -30-
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).14      “As

long as a factual finding is plausible in light of the record as

a whole, it is not clearly erroneous.”     Huerta, 182 F.3d at 364.

We review the district court’s interpretation and application of

the Guidelines de novo.    Id.; see also United States v. Villegas,

No. 03-21220 (5th Cir. Mar. 17, 2005).

     As discussed previously, the PSR recommended the addition of

two levels to Infante’s offense level because Infante had become

a fugitive from justice after he was convicted but before he was

sentenced.   At sentencing, the probation officer further informed

the court that he had made a number of attempts to contact

Infante in connection with preparing the PSR but was unable to

find him.    The district court asked whether Infante’s absence was

involuntary.   Infante’s attorney replied: “No, it was just a

temporary thing.   He was at the point he felt he shouldn’t have

to do any time because he was not guilty so he kind of wishy

washed around and then finally came in.”    The court responded:

“Well, he didn’t come in when he was supposed to come in.”

Accordingly, the court assessed the two additional levels under

U.S.S.G. § 3C1.1, which provides that an obstruction enhancement

is proper when a defendant “escape[s] or attempt[s] to escape

from custody before trial or sentencing; or willfully fail[s] to



     14
          Both parties agree that we review the judge’s factual
findings for clear error. Accordingly, we assume without
deciding that clear error is the proper standard post-Booker.
                               -31-
appear, as ordered, for a judicial proceeding.”   U.S.S.G. § 3C1.1

cmt. 4(e).   The court’s finding that Infante’s failure to appear

constituted obstruction of justice is plausible in light of the

record as a whole and therefore is not clearly erroneous.

Furthermore, its application of the Guidelines to enhance

Infante’s sentence because of that conduct was proper.

Therefore, Infante is not entitled to relief on this ground.

     2.   Booker Error

     Infante also avers that his Sixth Amendment rights were

violated under United States v. Booker, 125 S. Ct. 738 (2005),

and its progeny because the district court enhanced his sentence

for obstruction of justice under the mandatory sentencing regime

after finding facts not admitted by the defendant or proved

beyond a reasonable doubt.   Because Infante did not raise this

claim in the district court below, our review is for plain error.

E.g., United States v. Mares, 2005 WL 503715, at *7 (5th Cir.

Mar. 4, 2005).   We find plain error when: (1) there was an error;

(2) the error was clear and obvious; and (3) the error affected

the defendant’s substantial rights.    United States v. Olano, 507

U.S. 725, 732-37 (1993); Mares, 2005 WL 503715, at *8.   “If all

three conditions are met an appellate court may then exercise its

discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation

of judicial proceedings.”    Mares, 2005 WL 503715, at *8 (quoting

United States v. Cotton, 535 U.S. 625, 631 (2002)).
                                -32-
     Infante satisfies the first two prongs of the plain-error

test because the district court committed Sixth Amendment Booker

error and because that error is now plain after Booker.       See

Mares, 2005 WL 503715, at *8.      However, he has not satisfied the

third prong of the plain-error test because he cannot show that

the error in question affected his substantial rights.      Infante

has not shown, with a probability sufficient to undermine

confidence in the outcome, that if the judge had sentenced him

under an advisory sentencing regime rather than a mandatory one,

he would have received a lesser sentence.       See id. (quoting

United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340

(2004)).   The judge imposed a sentence in the middle of the

properly determined Guidelines range, and there is no indication

in the record from the judge’s remarks or otherwise that the

judge would have reached a different conclusion in an advisory

regime.    See id. at *9.    Having failed to meet his burden,

Infante is not entitled to resentencing on this ground.

                            III.   CONCLUSION

     For the foregoing reasons, we DENY Infante’s appeal on all

grounds other than his claim that he was denied effective

assistance of counsel.      Because we find that Infante’s attorney

labored under a conflict of interest at Infante’s trial but we

cannot determine whether that conflict adversely affected

Infante’s representation, we VACATE the judgment of the district

court and REMAND for a determination on that issue.      If the
                                   -33-
district court should find that Attorney Foster’s conflict of

interest did not adversely affect his performance, then it should

reinstate Infante’s conviction and sentence, leaving Infante free

to pursue a new appeal on that ground.   Any further appeal will

be heard by this panel.

     VACATED and REMANDED.




                              -34-
