
USCA1 Opinion

	




          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.                                         -20-                                          20
