

March 27, 1995    United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 94-1710

                        MARTIN CAREY,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]                                                             

                                         

                         ERRATA SHEET                                     ERRATA SHEET

   Please make the  following changes to the opinion  issued on
March 22, 1995:

        Page  2, line 1  - change "18  U.S.C." to "28
        U.S.C."

        Page 15, line  2 - change "18  U.S.C." to "28
        U.S.C."

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 94-1710

                        MARTIN CAREY,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]                                                             

                                         

                            Before

                     Selya, Circuit Judge,                                                     
                Bownes, Senior Circuit Judge,                                                        
                  and Stahl, Circuit Judge.                                                      

                                         

Judith  Mizner  with whom  Marshall  A.  Stern  was  on brief  for                                                          
appellant.
Margaret  D.  McGaughey, Assistant  United  States  Attorney, with                                   
whom Jay P. McCloskey,  United States Attorney and Richard  W. Murphy,                                                                             
Assistant United States Attorney, were on brief for appellee.

                                         

                        March 22, 1995
                                         

          STAHL,  Circuit Judge.    Pursuant to  28 U.S.C.                         STAHL,  Circuit Judge.                                           

2255, petitioner  Martin Carey ("Carey") moved  to (1) vacate

his guilty plea on the ground that he was taking prescription

drugs at  the time of his  change of plea, and  (2) set aside

his  sentence because  of claimed  ineffective  assistance of

counsel.   A magistrate  judge recommended denial  of Carey's

motion  and, following  de  novo review,  the district  court                                            

agreed.  We affirm.  We discuss separately the two issues and

the facts giving rise to them.

                          DISCUSSION                                      DISCUSSION                                                

A.  Voluntariness of Plea                                     

          1.  Relevant Facts                                        

          On  August 2,  1990, Carey  initially appeared  and

pled   not  guilty   to  a   one-count  indictment   charging

manufacture  of  marijuana.   He was  released  on bail.   On

October 18,  1990, Carey  and the  government entered into  a

written agreement under which he would enter a plea of guilty

conditioned on his right to appeal a previously denied motion

to suppress.  

          On the  same day,  Carey and his  retained counsel,

Pasquale  Perrino, appeared  for the  change-of-plea hearing.

In  a handwritten  affidavit appended  to his  habeas motion,

Carey  states that,  "[a]t the  time I  entered my  change of

plea,  I was  taking  prescription drugs"  to help  deal with

depression arising from  the recent deaths of my daughter and

                             -2-                                          2

father.   Carey further states  that:  "I  believe that these

medications affected my judgment," and that, "[w]ithout them,

I do not believe that I  would have decided to change my plea

at  that time."   Carey notes  that, because  of a  drug test

administered  in August  1990, "pretrial  services  was aware

that I  was  taking  these  medications."   During  the  plea

colloquy, the district court  did not ask Carey about  use of

prescription medications.

          2.  Discussion                                    

          Summary  dismissal   of  a      2255  petition   is

appropriate if it plainly appears from the face of the motion

that the movant is not entitled  to relief.  Rule 4(b) of the

Rules Governing   2255 Proceedings.  While genuine issues  of

material  fact  may not  be  resolved  without a  hearing,  a

hearing  is  not  required  where  a  habeas  motion  (1)  is

inadequate on its face, or (2) although facially adequate, is

conclusively refuted as to the alleged facts by the files and

records of the case.  United States v. DiCarlo, 575 F.2d 952,                                                          

954 (1st Cir.), cert. denied, 439 U.S. 834 (1978).  The court                                        

must  take  the  allegations contained  in  the  petitioner's

motion  as  true,  except  to   the  extent  that  "they  are

contradicted by the record  or are inherently incredible, and

to the  extent that they  are merely conclusions  rather than

statements of fact."  Mack v. United States, 635 F.2d 20, 26-                                                       

27 (1st Cir. 1980). 

                             -3-                                          3

          "[T]he strictures  of Rule 11 of  the Federal Rules

of  Criminal Procedure  . .  . are  calculated to  insure the

voluntary  and intelligent  character of  the plea."   United                                                                         

States v. Parra-Ibanez, 936 F.2d 588, 590 (1st Cir. 1991).  A                                  

plea will be  set aside if a violation of the rule implicates

one of its "core concerns," United States v. Allard, 926 F.2d                                                               

1237,  1244  (1st Cir.  1991),  but  variances not  affecting

substantial rights constitute  harmless error, Fed. R.  Crim.

Proc.  11(h).   We have  never stated that  the voluntariness

requirement, indisputably a "core concern," see, e.g., United                                                                         

States  v. Cotal-Crespo, No. 94-1354, slip op. at 7 (1st Cir.                                   

Jan. 30, 1995), compels the district court to ask a defendant

about prescription  drug use,  see Parra-Ibanez, 936  F.2d at                                                           

595.    Nonetheless,  many  judges  routinely  inquire  about

alcohol or drug  use during the  Rule 11 colloquy.   We  have

made  clear that  voluntariness does  require that,  once the

court 

               "has   been    informed   that   the
               defendant   has  recently   ingested
               drugs or other substances capable of
               impairing  his  ability  to  make  a
               knowing  and  intelligent waiver  of
               his  constitutional  rights", .  . .
               [it]  must  broaden   its  Rule   11
               inquiry with a view to assessing the
               impact of the ingested substances on
               the    defendant's    capacity    to
               understand     the    change-of-plea
               process and intelligently  determine
               a proper course of action.

                             -4-                                          4

Id. (quoting United States v. Cole, 813 F.2d 43,  46 (3d Cir.                                              

1987)).  

          Although  the  district  court  did  not  ask Carey

directly  about  prescription drug  use,  our  review of  the

transcript reveals nothing that  even arguably suggests  that

the  defendant was not in complete  command of his faculties.

Cf.  United  States v.  Pellerito, 878 F.2d  1535, 1542  (1st                                             

Cir. 1989) (mere  fact defendant  ingested potentially  mood-

altering medication insufficient to vitiate plea;  there must

be   some  evidence   that   the  medication   affected   his

rationality),  cert. denied, 502 U.S. 862 (1991).  Indeed, at                                       

one   point   Carey   sought    to   correct   the    court's

characterization of the plea.   ("Q.  Do you  acknowledge you

are  in  fact  guilty as  charged  in  this  indictment?   A.

Conditionally, yes sir.")  

          Nor do we agree  with Carey that the court  was put

on  constructive notice  because  pretrial services  had  the

August  1990  drug-test  results.    As  we  have  frequently

observed,  the  district court  is a  busy place,  see, e.g.,                                                                        

United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990),                                   

and  the  Rule 11  strictures  certainly  do not  diminish  a

judge's burdens, see, e.g., United States v. Medina-Silverio,                                                                        

30 F.3d 1, 3 (1st  Cir. 1994).  In this instance,  we believe

the protections in the  Rule are sufficient without requiring

a  judge  to search  out  all  possibly relevant  information

                             -5-                                          5

contained in  every government agency's files.   The district

court properly denied Carey's voluntariness claim.   Assuming

the  facts in  Carey's  allegations as  true, we  nonetheless

conclude that he is not entitled to relief, and his motion to

vacate fails.  

                             -6-                                          6

B.  Ineffective Assistance of Counsel                                                 

          Carey   premises   his   ineffective-assistance-of-

counsel  claim on  the  government's refusal  to  move for  a

downward  departure  pursuant   to  U.S.S.G.      5K1.11  for

substantial assistance and the  government's opposition to  a

downward adjustment for acceptance of responsibility pursuant

to U.S.S.G.   3E1.1.  We find his arguments unpersuasive.2

          1.  Relevant Facts                                        

          On an unspecified date following the change-of-plea

hearing, Carey and Perrino traveled to Portland, Maine, for a

debriefing  by  the  U.S.  Drug   Enforcement  Administration

("DEA").    At  this  time, Perrino  (Carey's  counsel)  also

represented Joe Darling ("Darling"),  who faced state charges

relating to the same  marijuana-growing operation that led to

Carey's  federal charges.    On the  way  to Portland,  Carey

claims Perrino  told him  to "tell the  government everything

[he knew] but that there was no reason to mention Mr. Darling

                                                    

1.  U.S.S.G   5K1.1 in relevant part states: 

          Upon  motion  of  the government  stating
          that    the   defendant    has   provided
          substantial     assistance     in     the
          investigation  or prosecution  of another
          person who has committed an  offense, the
          court may depart from the guidelines.  

2.  The magistrate's report  considered Carey's  ineffective-
assistance-of-counsel  claim in the  context of  vacating his
guilty plea  rather than sentencing.   As  we discuss  below,
Carey's motion alleges that ineffective assistance of counsel
affected his sentencing and not his entry of plea. 

                             -7-                                          7

at all."  Carey  did not mention Darling at  that debriefing.

Several  weeks later, at a second debriefing session with DEA

immediately  prior  to  his  sentencing  hearing,  Carey  did

discuss Darling.   Carey contends that  Perrino's conflict of

interest  led to  his initial  failure to  disclose Darling's

involvement,  which  in turn  led  to  both the  government's

refusal to file a motion pursuant to Section 5K1.1 and to the

government's   opposition  to   a  downward   adjustment  for

acceptance of responsibility.  

          The  district  court  conducted Carey's  sentencing

hearing on  January 25,  1991.  The  presentence investigator

appended to  his report a memorandum  entitled "Acceptance of

Responsibility," which described an  investigation undertaken

by   state  authorities   of  a   separate  marijuana-growing

operation.    According  to  the memorandum,  Carey  actively

participated  in  this operation,  which  took  place over  a

period  of about six weeks  during the late  summer and early

fall of 1990 (that  is, following his initial appearance  but

prior  to  his change-of-plea  hearing).    Darling was  also

involved  in   this  operation.    As   to  cooperation,  the

prosecutor  stated   at  the  sentencing  hearing   that  the

information Carey  had provided to date  was not significant,

but  that   Carey  pledged  his  future   cooperation.    The

government did not file  a section 5K1.1 motion.   During his

allocution, Carey stated,  among other things,  that "[t]here

                             -8-                                          8

are no victims  who will suffer  long-term effects from  this

crime  except my family."  The court concluded that, based on

Carey's post-charge conduct and  his statement that there was

no long-term  victim from  the  crime, Carey  "has not  truly

accepted  responsibility for  his conduct  in this  case, and

that his effort at the ninth hour . . . to cooperate with the

government, is  not capable of sufficient  evaluation for the

court to overcome the conclusion that is thereby yielded." 

          2.  Discussion                                    

          To  establish  an ineffective-assistance-of-counsel

claim,  a defendant  must demonstrate  (1) that  counsel fell

below the  applicable standard for performance,  and (2) that

prejudice resulted.   See, e.g., United  States v. Fisher,  3                                                                     

F.3d  456,   463  (1st  Cir.  1993)   (citing  Strickland  v.                                                                     

Washington, 466  U.S. 668, 687  (1984)).   Carey argues  that                      

prejudice per se  exists.  Prejudice  is legally presumed  if

"the   defendant   demonstrates   that    counsel   `actively

represented  conflicting  interests'   and  that  `an  actual

conflict   of  interest   adversely  affected   his  lawyer's

performance.'"   Strickland, 466 U.S. at  692 (quoting Cuyler                                                                         

v. Sullivan, 446 U.S.  335, 349-50 (1980)).  The  conflict of                       

interest must be actual  or "real."  United States  v. Fahey,                                                                        

769 F.2d  829, 834 (1st  Cir. 1985).  To  establish an actual

conflict of interest, the defendant must show (1)  the lawyer

could have pursued  a plausible alternative  defense strategy

                             -9-                                          9

or tactic, and  (2) the  alternative strategy  or tactic  was

inherently  in conflict with,  or not undertaken,  due to the

attorney's other  interests or  loyalties.  United  States v.                                                                      

Soldevila-Lopez, 17 F.3d 480,  486 (1st Cir. 1994).   On this                           

point, Carey's claim fails.  

          Carey's   theory   rests   on  a   single   factual

allegation: that Perrino told Carey not to mention Darling in

his initial debriefing.  Carey argues that an actual conflict

is "clear"  because his best interests  required "telling the

government  everything  he  knew  about  anybody  or  anyone,

including Joseph  Darling, at the outset"  and, further, that

defense  counsel could  have  offered to  have Carey  testify

against  Darling.  We think that the single fact of Perrino's

statement is  insufficient to  establish that  the counselled

course of  action was either  "inherently in conflict  or not

undertaken  due to" Perrino's other loyalties.  Id.  In fact,                                                               

Carey's  best interests  could  have dictated  precisely  the

course suggested  by Perrino.  For example, inasmuch as state

authorities already knew of Darling's activities, any proffer

by  Carey would  be unlikely  to  impress his  debriefers but

could  potentially  antagonize  Darling into  divulging  more

about  Carey.   Furthermore, because  both Carey  and Darling

were  involved in the  post-appearance growing  operation, it

might  well have  been  in Carey's  interest  to have  heeded

Perrino's advice.  To  be sure, all this is  speculation, but

                             -10-                                          10

so is Carey's conclusory suggestion that Perrino breached his

duty of loyalty.   Carey must show more.   In actual-conflict

cases,  we have  repeatedly  stated that  the defendant  must

demonstrate  that the  alleged  conflict is  more than  "some

attenuated  hypothesis  having  little  consequence   to  the

adequacy  of representation."   Brien  v. United  States, 695                                                                    

F.2d  10,  15  (1st  Cir.  1982)  (citing  United  States  v.                                                                     

Martorano, 620 F.2d  912, 916  (1st Cir. 1980)).   Even  when                     

accepted as true  and read  in its most  friendly light,  the

single factual  allegation offered by Carey  does not surpass

this  hurdle.   Accordingly,  because no  actual conflict  of

interest  existed,  we  conclude  that  prejudice  cannot  be

legally presumed.  

          One step  remains in  our analysis.   Assuming that

Perrino's advice  fell short of Strickland's  first prong, we                                                      

still must determine  whether prejudice in fact resulted.  We

conclude  that  it  did  not.    To  establish  prejudice,  a

defendant  must  demonstrate  that  there  was  a  reasonable

probability that, but for counsel's errors, the result in the

proceeding would  have been different.   Strickland, 466 U.S.                                                               

at   694.     Prejudice   incorporates   more  than   outcome

determination; we also must  determine whether "the result of

the  proceeding  was  fundamentally  unfair  or  unreliable."

Lockhart  v. Fretwell, 113 S.  Ct. 838, 842  (1993); see also                                                                         

Scarpa  v. Dubois,  38  F.3d 1,  12  (1st Cir.  1994),  cert.                                                                         

                             -11-                                          11

denied,  115  S. Ct.  940 (1995).    We conclude  that absent                  

Perrino's statement,  the outcome  in this case  would be  no

different.    By  its  terms,  section  5K1.1  vests  in  the

government full discretion  to file a  substantial-assistance

motion, subject to  review only  if the refusal  to file  was

based  on  an  unconstitutional  motive.3    Wade  v.  United                                                                         

States, 112 S. Ct.  1840, 1843-44 (1992).  The  record allows                  

us  to conclude with near  certainty that, even  if Carey had

discussed Darling at the initial debriefing,  any information

about  Darling  would  not  have  changed  the   government's

ultimate  determination  that  Carey's  assistance  was  "not

significant."  At least  three facts support this conclusion.

First,  at   the  time  of  the   initial  debriefing,  state

authorities  already  knew  that Darling  was  involved  with

drugs.  Second, although Carey did freely discuss  Darling at

his   second  debriefing,   the  government   was  apparently

unimpressed with whatever information Carey provided.  Third,

in  its response  to Carey's  objections to  the magistrate's

report, the government makes clear that if Carey were ordered

to be resentenced, it would not move for a downward departure

because, at  that point, "substantial assistance  [could not]

be rendered and [could] never be rendered."  

                                                    

3.  Carey did  not enter  into an agreement  under which  the
government would be bound to seek a downward departure.

                             -12-                                          12

          Finally,  upon  careful review  of  the  record, we

detect no  evidence  even arguably  suggesting  that  Carey's

sentencing was either unfair  or unreliable.  Accordingly, we

conclude  that Carey  suffered  no prejudice  and, thus,  his

ineffective-assistance-of-counsel claim fails.

                          CONCLUSION                                      CONCLUSION                                                

          For  the  foregoing reasons,  the  decision  of the

district court is

          affirmed.                      affirmed.                              

                              Dissent follows.                                                          

                             -13-                                          13

          BOWNES, Senior Circuit  Judge, dissenting in  part:                      BOWNES, Senior Circuit  Judge,                                                   

I fully  agree that there was no error in the failure to hold

an   evidentiary   hearing   on   Carey's   claim   that  the

voluntariness of his plea was compromised by his ingestion of

prescription medications prior to the change of plea hearing.

I  disagree, however,  that  the  district court  permissibly

rejected  Carey's  conflict  of  interest  claim  without  an

evidentiary hearing.  For this reason, I respectfully dissent

from Part B of the majority opinion.

                              I.                                          I.                                            

          At the outset,  I think it important to  state some

bedrock  legal tenets.  First,  "the right to  counsel is the

right  to  effective  assistance  of  counsel."    McMann  v.                                                                     

Richardson, 397 U.S. 759, 771 n.14 (1970).  Second, the right                      

to effective assistance of counsel is always denied  where an                                                        

actual conflict  of  interest negatively  affects a  lawyer's

performance.   See Cuyler  v. Sullivan, 446  U.S. 335, 345-50                                                  

(1980).  In other words, an actual conflict of interest is  a

special  breed  of  ineffective  assistance  which  is  never

harmless and is presumptively prejudicial.  Id. at 349-50.                                                           

And  third,  the right  to  effective  assistance of  counsel

applies at the sentencing stage of  a felony case.  See Mempa                                                                         

v. Rhay, 389 U.S. 128, 134 (1967).                    

          I   recognize   that    the   standard   by   which

effectiveness ordinarily  is judged  may be  more lax at  the                                                    

                             -14-                                          14

sentencing  stage of a noncapital  case than it  is at trial.

Cf.  Strickland  v.  Washington,  466 U.S.  668,  686  (1984)                                           

(leaving open the question whether Strickland's effectiveness                                                         

definition should  apply  to  counsel's  performance  at  "an

ordinary  sentencing, which may  involve informal proceedings

and standardless  discretion in the sentencer,  and hence may

require   a  different   approach   to   the  definition   of

constitutionally effective assistance").4   There  can be  no

doubt, however, that a lawyer whose performance at sentencing

was compromised by  an actual  conflict of  interest has  not

rendered the  client  the  effective  assistance  of  counsel

mandated by the  Constitution.  See United  States v. Swartz,                                                                        

975 F.2d 1042, 1048  (4th Cir. 1992) (applying Cuyler  at the                                                                 

sentencing  stage); United  States v.  Ziegenhagen, 890  F.2d                                                              

937, 939-41 (7th Cir. 1989) (same); see also United States v.                                                                      

Green,  680 F.2d 183, 191-205  (D.C. Cir. 1982) (Bazelon, J.,                 

dissenting), cert. denied, 459 U.S. 1210 (1983).                                     

                             II.                                         II.                                            

          In light  of the  foregoing authority, it  is clear

that the  appropriate inquiry here simply  is whether Carey's

                                                    

4.  Strickland,   of   course,   predated    the   Sentencing                          
Guidelines.  Federal sentencing  proceedings today can hardly
be  described,   in  the  words  of   Strickland,  as  either                                                            
"informal" or  as governed by a  sentencer with "standardless
discretion."  466 U.S. at 686.  
          It must also be noted that despite the above-quoted
dictum, we have applied the Strickland effectiveness standard                                                  
at sentencing.  See Carsetti v. Maine, 932 F.2d 1007, 1012-14                                                 
(1st Cir. 1991).

                             -15-                                          15

allegation is sufficient to state a claim that his lawyer had                                                     

an  actual conflict of  interest.  As  the majority concedes,

under  28 U.S.C.     2255, a  petitioner  is entitled  to  an

evidentiary hearing  "[u]nless the  motion and the  files and

records of  the case conclusively  show that the  prisoner is

entitled to no  relief .  . .  ."   Thus, a  petition can  be

dismissed  without   a  hearing  only  if   the  petitioner's                                                 

allegations, if credited, would not entitle the petitioner to                                               

relief,  or "if  the allegations  cannot be accepted  as true

because  they  are  contradicted  by  the  record, inherently

incredible, or conclusions  rather than statements  of fact."

United States v. Rodriguez Rodriguez,  929 F.2d 747, 751 (1st                                                

Cir. 1991); see also Dziurgot, v. Luther, 897 F.2d 1222, 1225                                                    

(1st  Cir. 1990); Mack v.  United States, 635  F.2d 20, 26-27                                                    

(1st Cir. 1980).  

          Here,  Carey's allegation that  his lawyer told him

not to tell the government about Darling  is not contradicted

by   the  record,   inherently  incredible,   conclusory,  or

unremediable.  Moreover, if true, it might well be sufficient

to satisfy  the two-pronged  test for establishing  an actual

conflict of interest:  (1) that counsel "actively represented

conflicting interests";  and (2) that "an  actual conflict of

interest  adversely affected his  lawyer's performance."  See                                                                         

                             -16-                                          16

Cuyler, 446 U.S.  at 349-50.5   The majority speculates  that                  

"Carey's best  interests  could have  dictated precisely  the                                           

course suggested  by Perrino."   See  opinion at  9 (emphasis                                                

supplied).     Perhaps,  but   we  cannot  know   without  an

evidentiary hearing  at which  Perrino could either  deny the

allegation  or explain his action.  After  all, the inference

that  Carey  would have  us draw  from  his petition  -- that

Perrino's  advice was  motivated  by loyalty  to Darling  and

could  well have  harmed  him at  sentencing  -- is  just  as

plausible as the  majority's speculation.   I  think the  law

required  the district court to hold a hearing and to resolve

these questions. 

                             III.                                         III.                                             

          After  concluding  that  Carey does  not  state  an

actual conflict of counsel claim, the majority states that it

"still  must determine whether  prejudice in  fact resulted."

See opinion  at 10.  It  does not need to  engage, and should               

not  have engaged, in  this analysis.   If, on the  one hand,

Carey's  allegation   is  insufficient  to  state  an  actual

conflict  claim (as the  majority holds), there  is no viable

                                                    

5.  It  should be  borne  in mind  that Cuyler's  "adversity"                                                          
requirement  is  not  tantamount  to  a  showing  of  harm or                                
prejudice;  Cuyler  makes   very  clear   that  a   defendant                              
victimized by a lawyer with dual loyalties need not show harm
or prejudice.  Cuyler, 446 U.S. at 349-50.   For this reason,                                 
adversity must be construed  as any action taken by  a lawyer
which  was prompted  by the  lawyer's  loyalty to  some other
partyand which was not in the complaining client's interest. 

                             -17-                                          17

claim of ineffective assistance of counsel, and the prejudice

analysis  is entirely superfluous.  If, on the other, Carey's

allegation is  sufficient to  state an actual  conflict claim

(as I maintain), the prejudice analysis is patently improper.

The majority in  Cuyler could  not have been  clearer:   "[A]                                   

defendant  who shows  that  a conflict  of interest  actually

affected  the   adequacy  of  his  representation   need  not

demonstrate prejudice in order to  obtain relief."  446  U.S.

at 349-50.

                             IV.                                         IV.                                            

          Even were I to ignore Cuyler and deem Carey's claim                                                  

as being  properly subject to  a prejudice analysis,  I could

not agree that there  was no prejudice here.   Hoisting Carey

by the petard  of an assertion Cuyler did not  require him to                                                 

make, the majority confines its prejudice inquiry to the harm

emphasized by Carey in  his motion (that his failure  to talk

about  Darling  at the  initial  debriefing  resulted in  the

absence of a   5K1.1 motion at his sentencing) and determines

"with  near  certainty  that,  even if  Carey  had  discussed

Darling  at the  initial  debriefing,  any information  about

Darling  would not  have  changed  the government's  ultimate

determination that Carey's assistance was `not significant.'"

See opinion at 11.                 

          I  have  two   problems  with  this  determination.

First,  I am  loath to  decide what  the government  would or

                             -18-                                          18

would  not  have done  in this  case without  sworn testimony

tested by  adversarial  questioning.   And more  importantly,

even if I could conclude that Carey would not have received a

  5K1.1 motion at  his initial sentencing, I cannot  say that

Carey  was not  harmed in  some other  way if his  lawyer was

disloyal.  In  this vein, I point  out that Carey could  come

out of a second sentencing with a lower sentence than the one

he currently is serving.  Carey's guideline  range was 97-121

months,  and he  received a  sentence of  109 months.   Thus,

regardless  of whether  there was  a    5K1.1 motion,  if the

district  court  found that  Carey  had received  ineffective

assistance   of  counsel   in  connection   with   his  first

sentencing,  it would  in  no way  be  engaging in  an  empty

exercise  by setting  Carey's sentence  aside and  ordering a

second sentencing hearing.   It is not at all  far-fetched to

assume  that a lawyer completely loyal to Carey might be able

to persuade the judge to sentence him at the lower end of the

appropriate guideline range.

          The  majority concludes  its prejudice  analysis by

stating that it  does not "detect any evidence  even arguably

suggesting  that  Carey's  sentencing was  either  unfair  or

unreliable."   Id. at 11.   While I don't disagree  with this                              

statement,  I  hardly  find   it  surprising;  there  was  no

evidentiary hearing  at which  such evidence might  have been

developed.  That is the main point of my dissent.

                             -19-                                          19

                              V.                                          V.                                            

          Binding   Supreme   Court  and   Circuit  precedent

prohibited the district court from rejecting Carey's conflict

of  interest  claim  without   an  evidentiary  hearing.    I

therefore dissent from Part B  of the majority opinion, which

affirms the denial of Carey's claim without a hearing.

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