                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                          F I L E D
               IN THE UNITED STATES COURT OF APPEALS        July 12, 2005
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk
                           No. 04-10710


                    UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,
                              versus
                          QUINCY LEVINE

                                            Defendant-Appellant.



         Appeal from the United States District Court
              for the Northern District of Texas
                   USDC No. 4:03-CR-316-5-A


Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL,
District Judge.1
PER CURIAM:2

     Quincy Levine appeals his conviction and sentence for

cocaine distribution.     Levine argues that the district court
erred by refusing to allow him to withdraw his guilty plea and
by denying him a reduction under the sentencing guidelines for

acceptance of responsibility.     Levine claims that he pleaded
guilty while represented by counsel who had a conflict of


1
     District Judge for the Southern District of Texas, sitting by
designation.
2
     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this opinion should not be published and is not precedent except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.
interest arising from prior representation of a codefendant.

Levine asserts that when he raised this conflict, the court not
only refused to grant the motion to withdraw the plea, but also
punished him by withholding the offense level reduction for
acceptance of responsibility.
       We find no actual conflict of interest or other basis to

reverse the district court’s decision to deny Levine’s motion
to withdraw the guilty plea. We further find that the district
court did not err in sentencing Levine.             The reasons are
explained below.

               I.   Factual and Procedural Background

       A grand jury in the Northern District of Texas indicted
Levine and seven others on December 17, 2003, charging Levine

with one count of conspiracy to possess a controlled substance
with    the   intent   to   distribute   it,   in   violation   of   21

U.S.C. §§ 841(a)(1), (b)(1)(A) & 846 (count one), and one count
of aiding and abetting the possession of a controlled substance

with the intent to distribute it, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (count three).               On

December 19, 2003, attorney Ronald Couch was appointed to
represent Levine.      On February 9, 2004, attorney Shaun House

entered an appearance as Levine’s retained counsel, and the
court granted House’s motion to substitute.          On February 27,
2004, Levine pleaded guilty to count three of the indictment,


                                   2
which charged possession with the intent to distribute and

aiding and abetting.
     On May 7, 2004, after the presentence report issued,
Levine filed a pro se “Motion to Excuse Retained Council.”         He
argued, among other things, that his (unnamed) counsel had a
conflict of interest because he had previously represented a

codefendant, Kevin Shed.3     In a later filing, Levine alleged
that his wife had actually hired another attorney, Douglas
Greene, to represent him. Levine asserted that Greene told his
wife that House, who shared an office with Greene, would be

designated as Levine’s attorney, because Greene had formerly

represented Shed and the judge would likely view this as a
conflict.      Greene   assured   Levine’s   wife   that   he   would

nonetheless continue to work on the case.
     The district court held a hearing on June 2, 2004 at which

Levine, his wife, and House testified.       The court discharged
both Greene and House, finding that Greene had been Levine’s

attorney “behind the scenes” and that House had served as the
“front man.”   The district court was appropriately critical of




3
     Shed also appealed, arguing that the district court abused its
discretion in denying his motion to withdraw his guilty plea based
in part on his counsel’s conflict of interest. This court recently
affirmed the district court’s refusal to set aside Shed’s guilty
plea. United States v. Shed, 2005 WL 1427391, at *1 (5th Cir. June
20, 2005).

                                  3
both Greene and House.      The court, however, carefully stated

that it had
            made no determination whatsoever that this
            defendant’s rights have been adversely
            affected by the fact that Mr. Greene has
            been involved in the defendant’s legal
            representation behind the scenes. . . . I’m
            not making any determination that that in
            any way has caused you to be adversely
            affected.    So don’t think that this is
            going to lead necessarily to another result
            such as setting aside the plea agreement —
            or the plea of guilty, because I have not
            made any findings that would cause me to
            think that the plea of guilty should be set
            aside   or    that   there    is   anything
            inappropriate about the plea agreement.4

    The court again appointed attorney Couch to represent

Levine.   Couch filed a motion to withdraw Levine’s guilty plea
on June 9, 2004.     In a hearing on the motion held on June 10,

2004, the court denied the motion after analyzing each of the
seven factors set out in United States v. Carr.5          The court

then proceeded to sentencing.
    Although the initial presentence report had recommended a

three-point reduction in offense level for acceptance of
responsibility,      the   probation   officer   had    subsequently

withdrawn     that   recommendation,   finding   that   Levine   had
frivolously minimized his role in the conspiracy. The district



4
     United States v. Levine, No. 04-10710, Hearing Transcript
(“Tr.”) Vol. 2, pp. 81–82.
5
    740 F.2d 339, 343–44 (5th Cir. 1984).

                                  4
court agreed to the denial of the reduction for acceptance, but

based that decision on Levine’s testimony in the June 10
hearing in support of his motion to withdraw his guilty plea.
Levine received a 360-month sentence, in part reflecting career
offender status.
     Levine appeals the district court’s denial of his motion

to withdraw his guilty plea and the refusal to reduce the
offense level for acceptance of responsibility.
           II.       The Claim of a Conflict of Interest
     Levine argues that the court abused its discretion in

denying his motion to withdraw the guilty plea he entered while

his attorneys labored under a conflict of interest. To prevail
on his claim, Levine must show that his attorneys had a

conflict      of     interest     that   adversely    affected    their
performance.6

     Courts        analyzing    allegations   of   conflicted    counsel
typically ask 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.”7           If a conflict
does not adversely affect counsel’s performance, no “actual


6
     See Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100 S. Ct. 1708,
64 L. Ed. 2d 333 (1980); United States v. Infante, 404 F.3d 376,
392 (5th Cir. 2005).
7
     Infante, 404 F.3d at 391 (emphasis in original).

                                     5
conflict” exists.    “An ‘actual conflict’ exists when defense

counsel is compelled to compromise his or her duty of loyalty
or zealous advocacy to the accused by choosing between or
blending the divergent or competing interests of a former or
current client.”8     If a defendant “establishes an actual
conflict   that   adversely   affected   counsel’s   performance,

prejudice is presumed without any further inquiry into the
effect of the actual conflict on the outcome of the defendant’s
trial.”9
     Levine has not shown an actual conflict of interest.

Levine has not identified how Greene’s prior representation of

Shed adversely affected Greene’s or House’s representation of
Levine. Specifically, Levine has not identified any “plausible

alternative defense strategy that could have been pursued, but
was not, because of the actual conflict.”10      To the contrary,

at oral argument, counsel for Levine acknowledged that the
defense strategy Levine had followed — early and extensive

cooperation followed by a guilty plea — would have been the
same had Levine retained conflict-free counsel from the outset.




8
     Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000), citing
Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067,
80 L. Ed. 2d 674 (1984).
9
     Perillo, 205 F.3d at 781–82.
10
     Infante, 404 F.3d at 393, citing Perillo, 205 F.3d at 807.

                                6
      Without a specific showing of an adverse effect, no actual

conflict exists.         In the absence of an actual conflict, and
because   the     district    court   properly    considered     the   Carr
factors, we reject this ground for appeal.
                  III.    Acceptance of Responsibility
      Levine also appeals the district court’s denial of a

reduction    in   the     offense   level   for   timely   acceptance    of
responsibility in determining the guideline sentence.                    We
review the district court’s decision to reduce the sentence for
acceptance of responsibility “with even more deference than is

due under a clearly erroneous standard because the sentencing

judge is in a unique position to assess the defendant’s
acceptance of responsibility and true remorse.”11

      Levine asserts, without argument or support, that the
district court denied the reduction as punishment for bringing

his counsels’ conflict to the court’s attention.                 Levine’s
argument does not take into account or explain the testimony

he gave that led the district court to withhold the adjustment
for   acceptance     of    responsibility.12       Given   the   level   of

11
     United States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir.
2005); United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002).
12
      The district court stated during the sentencing hearing:

            I’m convinced the defendant hasn’t accepted
            responsibility from the testimony he gave from
            the witness stand today.      So I’m denying
            acceptance of responsibility, but I’m doing it
            because of the defendant’s testimony today

                                      7
deference     this   court   affords   to   a   district     court’s

determination of whether a defendant should be credited for
accepting    responsibility,   we    conclude   that   the   court’s
sentencing decision provides no basis for reversal.
                         IV.   Conclusion
     The conviction and sentence are affirmed.




            that he’s denying that he’s guilty after he
            clearly has previously admitted that he’s
            guilty.

Tr. Vol. 3, p. 50.

                                 8
