                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                              March 9, 2005

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                   No. 04-20240


                         UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

                     ERNESTO ANIBAL VARGAS-DELEON,

                                                         Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                           (4:03-CR-359-ALL)


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ernesto Vargas-DeLeon pleaded guilty to reentering the country

illegally after deportation, following being convicted for an

aggravated     felony.   See   8    U.S.C.     §   1326(a),   (b)(2).     Before

sentencing,     Vargas-DeLeon        allegedly       obtained    incriminating

information about his cell-mate.          Later, it was realized that both

were represented by the same Federal Public Defender’s office.                    A

motion to withdraw by the Assistant Federal Public Defender (AFPD)

representing Vargas-DeLeon was denied.               At sentencing, the AFPD

stated:   because of the potential conflict of interest, he could


     *
      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this opinion should not be published and is not precedent except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.
not move for a continuance in order to pursue having the Government

move (possibly) for a sentencing reduction for Vargas-DeLeon under

Sentencing Guidelines § 5K1.1 (2004) (substantial assistance to

authorities).     Vargas-DeLeon claims this denied him the effective

assistance   of   counsel,   in   violation   of   the   Sixth   Amendment.

AFFIRMED.

                                    I.

     Vargas-DeLeon was deported on 12 July 2003; he had previously

been convicted, inter alia, of burglary of a habitation with the

intent to commit sexual assault and possession of marijuana in a

useable quantity of more than five pounds.         Shortly thereafter, he

reentered the United States illegally, without consent from the

Secretary of Homeland Security, as required by 6 U.S.C. §§ 202(3),

(4) & 557.   On 11 September 2003, after being found in the Harris

County Jail (located in Houston, Texas), Vargas-DeLeon was indicted

for illegal reentry following deportation for an aggravated felony.

     When Vargas-DeLeon made his initial appearance before the

district court on 30 September, the Federal Public Defender was

appointed to represent him, and Vargas-DeLeon was ordered to be

detained pending trial.      Early that December, represented by AFPD

Richard Ely, Vargas-DeLeon pleaded guilty without a written plea

agreement.   A presentence investigation report (PSR) was prepared;

and, on 5 February 2004, Vargas-DeLeon filed a notice of no




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objections to the PSR.   Sentencing was scheduled for 25 February

2004.

     Prior   to   sentencing,    however,    Vargas-DeLeon     allegedly

obtained incriminating information about his cell-mate, Garcia-

Garcia; and hoped to provide this information to the Government, in

order to pursue a possible sentence reduction under Guidelines §

5K1.1.   (The Government alone must move for such a reduction.)

Vargas-DeLeon provided this information to Ely, but the record does

not disclose when he did so.

     On 20 February, five days before sentencing, Ely learned that

both Vargas-DeLeon and Garcia-Garcia were represented by the same

Federal Public Defender’s office.      Ely, however, did not represent

Garcia-Garcia.    That same day, Ely moved to withdraw as Vargas-

DeLeon’s counsel.   (Garcia-Garcia’s     AFPD-counsel   also   moved   to

withdraw.)

     The district    court   denied Ely’s withdrawal motion during

sentencing on 25 February.      Prior to its doing so, Ely contended

that, because of the potential harm to Garcia-Garcia, he could not

move for a continuance in order for Vargas-DeLeon to pursue with

the Government a possible § 5K1.1 sentence reduction.          Ely noted

that, even though the AFPD representing Garcia-Garcia had been

allowed to withdraw on 23 February, two days before Vargas-DeLeon’s

scheduled 25 February sentencing, Ely’s “duty of loyalty” to




                                   3
Garcia-Garcia survived that former representation.           Vargas-DeLeon

was sentenced, inter alia, to 66 months imprisonment.

      That same day, post-sentencing, Ely was allowed to withdraw.

Post-sentencing,     and   prior   to   Garcia-Garcia’s   sentencing   that

August, Vargas-DeLeon did not pursue having the Government possibly

move for a Federal Rule of Criminal Procedure 35(b) sentence

reduction for substantial assistance to authorities.

                                     II.

      The denial of a motion to withdraw based on a conflict of

interest is reviewed for abuse of discretion.          E.g., United States

v. Wild, 92 F.3d 304, 307 (5th Cir.), cert. denied, 519 U.S. 1018

(1996).    This review includes determining, inter alia, whether an

“actual” conflict of interest existed, as defined infra.             United

States v. Medina, 161 F.3d 867, 870 (5th Cir. 1998) (citing United

States v. Rico, 51 F.3d 495, 508 (5th Cir.), cert. denied, 516 U.S.

883 (1995)).     Although denial of a motion to withdraw is reviewed

for     abuse   of   discretion,    the     district   court’s   underlying

determination whether an actual conflict exists is reviewed de

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

(actual conflict determination is mixed question of fact and law,

reviewed de novo).

      Normally, “a defendant alleging a Sixth Amendment violation

must demonstrate [,inter alia,] ‘a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

                                        4
would have been different’”.            Mickens v. Taylor, 535 U.S. 162, 166

(2002) (quoting Strickland v. Washington, 466 U.S. 668, 685-86

(1984)).    This is the familiar “prejudice” prong for ineffective

assistance of counsel claims.

     An exception exists to the general Strickland rule, however,

for conflict of interest claims involving multiple representations.

In those instances, “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”.                     Cuylar v.

Sullivan, 446 U.S. 335, 349-50 (1980) (emphasis added); see also

Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (en banc), cert.

denied, 517 U.S. 1157 (1996) (the Sullivan “test sets a lower

threshold   for       reversal    of    a       criminal    conviction   than    does

Strickland” and applies only to Sixth Amendment claims involving

multiple representation).

     Thus, Vargas-DeLeon “must establish that an actual conflict of

interest adversely affected his lawyer’s performance”.                    Sullivan,

446 U.S. at 350 (emphasis added).                 As stated in Mickens:         “‘[A]n

actual conflict of interest’ mean[s] precisely a conflict that

affected counsel’s performance – as opposed to a mere theoretical

division of loyalties”.          535 U.S. at 171 (emphasis deleted).              See

also id. at 172 n.5 (“An ‘actual conflict’, for Sixth Amendment

purposes,   is    a    conflict    of       interest       that   adversely   affects

counsel’s performance.”).          In short, “defects in assistance that

                                            5
have no probable effect upon the trial’s outcome do not establish

a violation” of a criminal defendant’s Sixth Amendment right to

“the Assistance of Counsel for his defence”.    Id. at 166 (emphasis

added).

     Another exception to Strickland’s prejudice requirement is

“where assistance of counsel has been denied entirely or during a

critical stage of the proceeding”.     Mickens, 535 U.S. at 171; see

also United States v. Cronic, 466 U.S. 648, 658-61 (1984).       In

these situations, prejudice will be presumed.    Unlike the Sullivan

standard, this exception is not limited to situations involving

conflicts caused by multiple representations.

     We will assume that a conflict existed, resulting from the

Federal Public Defender’s simultaneously representing Vargas-DeLeon

and Garcia-Garcia.   Therefore, at issue is whether the conflict

occurred during a critical stage of the proceeding; and, if not,

whether it was an actual conflict — a conflict that adversely

affected counsel’s performance.

                                  A.

     Vargas-DeLeon contends:   because of Ely’s conflict, he was

denied representation during “the critical stage of sentencing”;

and, therefore, prejudice should be presumed.    Vargas-DeLeon does

not present a basis for how this applies to sentencing, much less

to the one extremely speculative aspect of sentencing at issue.

Arguably, Vargas-DeLeon fails to adequately brief this claim.


                                  6
       In any event, for prejudice to be presumed, “the likelihood

that the verdict is unreliable [must be] so high that a case-by-

case inquiry is unnecessary”.             Mickens, 535 U.S. at 166 (emphasis

added). “But only in ‘circumstances of that magnitude’ do we forgo

individual inquiry into whether counsel’s inadequate performance

undermined the reliability of the verdict.”                      Id. (citing Cronic,

466 U.S. at 659 n.26).

       Along this line, the Supreme Court has presumed prejudice in

a number of     situations.       See Geders v. United States, 425 U.S. 80,

88-89   (1976)    (district       court’s       sequestration           order    prevented

defendant from conferring with counsel during overnight recess

between defendant’s direct and cross-examination); Herring v. New

York,   422    U.S.     853,    864-65    (1975)     (statute       gave      trial    court

discretion not to hear closing arguments); Davis v. Alaska, 415

U.S.    308,    318    (1974)    (denial        of   right    of     effective        cross-

examination);         Hamilton    v.     Alabama,     368     U.S.      52,     55    (1961)

(arraignment      was      a     critical       stage      for      Alabama       criminal

proceedings);      Ferguson      v.    Georgia,      365     U.S.    570,       596   (1961)

(statute denied defendant right to have counsel question him at

trial).       We note that, in Lockhart v. Fretwell, 506 U.S. 364

(1993), the Court did not presume prejudice in addressing a Sixth

Amendment      claim    for    ineffective       assistance        of    counsel      during

sentencing.



                                            7
       In any event, based on this record, the “likelihood” of the

sentence being “unreliable” falls far short of the quantum required

for presumed prejudice. Restated, the claimed adverse effect (from

not    being    able       to   continue       sentencing    and    have     new    counsel

appointed       in    order     to    pursue    seeking     to    have    the    Government

possibly move for the § 5K1.1 sentence reduction) is far too

speculative for imposition of a per se rule, for the following

reasons.

       The record does not contain any evidence that Vargas-DeLeon

contacted the Government about his providing assistance in Garcia-

Garcia’s prosecution.                Moreover, Vargas-DeLeon pleaded guilty to

the charge, without a plea agreement, prior to any conflict.

Therefore, the possibility of the Government’s moving to reduce

Vargas-DeLeon’s sentence is extremely remote.                       (This is discussed

infra in more detail.)               Again, no threat exists that the conflict

“undermined the reliability of the [sentence]”.                          See Mickens, 535

U.S. at 166.

                                               B.

       In   the       alternative,         Vargas-DeLeon         claims    the     conflict

adversely affected Ely’s representation because his continuing duty

of    loyalty     to      Garcia-Garcia        prevented    Ely    from    moving    for a

continuance          in   order      for   Vargas-DeLeon     to    pursue       having   the

Government possibly move for a § 5K1.1 sentence reduction.                               See

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.6 cmt. 4 (“Loyalty to a client is


                                                8
impaired ... in any situation when a lawyer may not be able to

consider, recommend or carry out an appropriate course of action

for   one    client   because    of   the   lawyer’s    own   interests   or

responsibilities to others.”).            (Obviously, the denial of the

withdrawal motion was not linked to the Guidelines’ then being

mandatory.    Therefore, the issue at hand is not affected by United

States v. Booker, 125 S. Ct. 738 (2005).          Vargas-DeLeon does not

contend otherwise.)

      Vargas-DeLeon concedes he could have sought the same relief,

post-sentence, pursuant to Federal Rule of Criminal Procedure

35(b). In district court, Ely asserted Vargas-DeLeon was adversely

affected, however, because “[t]he ability to get a 5K [sentence

reduction] is somewhat easier than getting [one under] Rule 35

after the fact”.      (Emphasis added.)

      Guidelines § 5K1.1 provides, in part:            “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”.      (Emphasis     added.)     Similarly,   Federal   Rule   of

Criminal Procedure 35(b)(1) states:         “Upon the government’s motion

made within one year of sentencing, the court may reduce a sentence

if:   (A) the defendant, after sentencing, provided substantial

assistance in investigating or prosecuting another person; and (B)




                                      9
reducing the sentence accords with the Sentencing Commission’s

guidelines and policy statements”.     (Emphasis added.)

      We are not persuaded that Vargas-DeLeon’s representation was

adversely affected because of his counsel’s assertion at sentencing

that a reduction is “somewhat easier” to obtain under § 5K1.1 than

Rule 35.    Both procedures require a motion by the Government.

Moreover, the requirements necessary to obtain a reduced sentence

are essentially the same – both require the defendant’s having

provided substantial assistance in the investigation or prosecution

of   another.   Although   Rule   35(b)(1)   contains    an   additional

provision, stating that any sentence reduction must “accord[] with

the Sentencing Commission’s guidelines and policy statements”, this

requirement is implied in § 5K1.1, which is, after all, part of the

Guidelines. Therefore, there does not appear to be any appreciable

difference between seeking a sentence reduction pursuant to § 5K1.1

or Rule 35(b)(1).

      In any event, there is nothing in the record stating that

Vargas-DeLeon ever contacted the Government concerning providing

substantial assistance in Garcia-Garcia’s prosecution.           Vargas-

DeLeon contends this was because of the conflict caused by the

Federal Public Defender’s dual representation.      Ely did not learn

of the conflict, however, until 20 February 2004.       It is undisputed

that Ely was aware Vargas-DeLeon claimed to have incriminating

information about Garcia-Garcia before Ely learned of the conflict.



                                  10
(As noted, the record does not disclose when he became aware of

this information.)        Therefore, Ely could have consulted with the

Government about its possibly moving for a § 5K1.1 reduction in

exchange    for     Vargas-DeLeon’s        information    about    Garcia-Garcia

between    the     time   he    learned     Vargas-DeLeon    had    the   alleged

information and when, on 20 February 2004, he became aware of the

dual representation.       The Government, however, was never contacted

by Ely.

     Concerning the possible relief under Rule 35(b), Ely was

allowed to withdraw on 25 February 2004, following sentencing;

Vargas-DeLeon filed a pro se notice of appeal on 5 March; and he

was appointed       new counsel on 9 March, 13 days after he was

sentenced.       Garcia-Garcia had been indicted approximately a month

earlier, on 11 February; pleaded guilty on 24 May; and was not

sentenced until 31 August.

     While Vargas-DeLeon’s appeal is pending, the district court

lacks jurisdiction to rule upon a Rule 35(b) motion.                 See United

States v. Sanzo, 831 F.2d 671, 672 (6th Cir. 1987) (“A district

court has no jurisdiction to rule upon a Rule 35(b) motion after a

notice of appeal has been filed.”).            Nevertheless, Vargas-DeLeon’s

new, un-conflicted counsel was still free to consult with the

Government   regarding         providing    substantial     assistance    in   the

prosecution of Garcia-Garcia.              Had counsel done so, and had the

Government elected to move under Rule 35(b), the motion could have


                                          11
been filed; and, upon certification by the district court of its

inclination to grant the motion, the case could have been remanded

so that it would have had jurisdiction.     Id.

     Lacking evidence that Vargas-DeLeon contacted the Government,

either prior to sentencing or post-sentencing, concerning his

desire to provide substantial assistance in the prosecution of

Garcia-Garcia, we cannot say AFPD Ely’s conflict was anything more

than “a mere theoretical division of loyalties”. Mickens, 535 U.S.

at 171.     Therefore, the conflict had no adverse effect on Ely’s

representation of Vargas-DeLeon and was, accordingly, not an actual

conflict.    In sum, based on this record, the district court did not

abuse its discretion in denying the motion to withdraw.

                                 III.

     For the foregoing reasons, the judgment is

                                                        AFFIRMED.




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