In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3939

United States of America,

Plaintiff-Appellee,

v.

Rickey B. Wallace,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-CR-30006-01-WDS--William D. Stiehl, Judge.

Argued May 10, 2001--Decided January 9, 2002



  Before Posner, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. Rickey B.
Wallace was a big-time marijuana dealer
in Southern Illinois. Over the years, he
was responsible for transactions
amounting to a whopping 13,471 kilograms
of that substance, according to one of
his co-conspirators, Ubaldo Diaz II. Law
enforcement authorities caught up with
him in early 1997, when he was indicted
along with several others for conspiring
to distribute "divers amounts of
marihuana" from approximately 1987
through September 1997, in violation of
21 U.S.C.    841(a)(1) and 846. He
pleaded guilty, but then thought better
of matters after he learned that he would
be held responsible for such a large
quantity. His motion to withdraw his
guilty plea became complicated by the
near-simultaneous discovery that his
first lawyer allegedly had a serious
conflict of interest. In the end, the
district court denied Wallace’s motion
(filed by a new lawyer) to withdraw the
plea and sentenced Wallace to 240 months’
imprisonment. Wallace appeals, and we
affirm.

I

  At the time of his guilty plea, Wallace
was 50 years old and the owner of a
roofing business in Southern Illinois.
Represented by attorney Clifford
Schwartz, Wallace stipulated in writing
that between 1987 and November of 1994,
he was a leader of an organization that
distributed marijuana in and around
Granite City, Illinois. Wallace admitted
that during this period he regularly
received large quantities of marijuana
from suppliers in Texas, including
co-conspirator Diaz. Wallace also
admitted that on two different occasions
in 1994 (July and October), law
enforcement officials seized from Diaz
separate 800-pound shipments of marijuana
(a total of over 700 kilograms) that were
intended for Wallace.

  In his plea agreement, Wallace
acknowledged that his offense was subject
to the United States Sentencing
Guidelines and that his sentence would be
determined by the court. The plea
agreement noted that the sentence would
depend on the amount of marijuana the
court found should be counted as relevant
conduct, and that if the amount exceeded
100 kilograms, he was facing a sentence
ranging from 5 to 40 years. Finally,
Wallace confirmed in the plea agreement
that there were no agreements or promises
relating to the length of his sentence.

  On February 3, 1998, prior to accepting
Wallace’s plea, the district court
conducted a lengthy Rule 11 colloquy. In
the course of that exchange, Wallace
stated under oath that he had discussed
the indictment and the evidence against
him with his attorney, Schwartz. Turning
to the plea agreement, the court asked
Wallace to confirm the fact that the plea
agreement contained no commitments about
his expected sentence. Asked if he
understood this, Wallace replied, "Yes,
sir." The court then again asked whether
"anyone made any other or different
promise or assurance of any kind to you,"
and Wallace replied, "No, sir."

  The court then explained to Wallace that
"the penalty provided by law for the
offense to which you are pleading is
governed by the amount of controlled
substance found to constitute your
relevant conduct. Here we have no
agreement as to that amount. That is
something that I will have to determine
at a later date." After reviewing all the
possible relevant conduct ranges and the
potential sentences that could attach,
the court asked, "Now do you understand
all of those possible consequences of
your plea?" Wallace said that he did. He
also affirmed that he had "discussed how
the sentencing guidelines might apply in
his case" with Schwartz. Finally, Wallace
agreed that he understood that the court
"will not be able to determine the
applicable guideline range in your case
until after a presentence report has been
prepared."

  Next, the government spelled out what it
was prepared to prove at trial, including
the two 800-pound shipments of marijuana
that government agents seized from Diaz
in 1994. Following the recitation the
court asked, "Mr. Wallace, is what [the
government] has just told us
substantially correct?" Wallace
responded: "Would that total be 1,600
pounds?" Clarifying, the court answered,
"Well, as I understand it, the amount
constituting your relevant conduct is not
agreed to, but that there, in this
recital of the facts . . . [the
government] talked about . . . two
shipments of 800 pounds. So is what he
told us substantially correct?" Wallace
agreed that it was, and also agreed that
the stipulation of facts was accurate.

  After entering his guilty plea, but
before the conclusion of the change of
plea hearing, Wallace interrupted the
court to ask whether at sentencing the
court would "judge what can be put in?"
He asked, "When the government puts on
what I consider to be lies that has been
told, then you are going to judge that,
is that true?" The court answered that
"[i]t will be just like a trial. The
government is going to put on evidence. .
. . You are going to have the right, or
your attorney will have the right, to
cross-examine their witnesses. Your side
is going to have the right to put on
witnesses . . . and after all of that,
then I have to make a determination."
Wallace then asked, "We’re almost having
a trial then, aren’t we?," and the court
replied that "[s]ome of these sentencings
come down to a mini trial. All it is is
a trial over the amounts. . . . Does that
answer your question?" Wallace said it
did.

  Following Wallace’s guilty plea, the
United States Probation Office prepared a
presentencing report. Relying largely on
information provided by Diaz, the report
found Wallace’s relevant conduct during
the seven years of the conspiracy to
include marijuana transactions totaling
13,471 kilograms (almost 30,000 pounds).
Apparently surprised by the relevant
conduct recommendation, Wallace filed,
through Schwartz, a motion to withdraw
his guilty plea.

  This was where matters veered from the
beaten track. Before the court had an
opportunity to rule on Wallace’s motion,
the government moved to disqualify
Schwartz. It accused Schwartz of either
witnessing or participating in suborning
perjury and witness tampering by Wallace.
In particular, it alleged that while
Wallace was out on bond, he and Schwartz
had gone to Rio Grande City, Texas, to
interview members of Diaz’s family. While
there, Wallace told Diaz’s sister Isabel
that they had to "shut [her brother] up."
He asked Isabel to lie about her
relationship with Wallace and told Diaz’s
father that he should testify that Diaz
was lying. In exchange, Wallace offered
to pay the family $50,000. The government
argued that whether or not Wallace was
allowed to withdraw his guilty plea,
Wallace’s actions on the trip to Rio
Grande City were relevant to the case,
and Schwartz would potentially be put in
the position of being called as a witness
against his client. Both Schwartz and
Wallace objected to the government’s
motion and submitted affidavits denying
the supporting allegations. The district
court held a hearing on the motion to
disqualify and, in a subsequent written
order, disqualified Schwartz on the
ground asserted by the government.

  Following Schwartz’s disqualification,
attorney John O’Gara entered his
appearance on behalf of Wallace. O’Gara
immediately filed an amended motion to
withdraw Wallace’s guilty plea. Whereas
the Schwartz motion to withdraw the plea
had argued that the government was
impermissibly shifting theories from a
single conspiracy to multiple
conspiracies, the O’Gara motion focused
principally on the conflict of interest
between Schwartz and Wallace that (it
argued) tainted the original guilty plea
proceedings. Schwartz, Wallace now urged,
had a powerful motive to induce Wallace
to plead guilty, because by avoiding a
trial, Schwartz could avoid having his
unethical and potentially criminal
conduct come to light. In his amended
motion, however, Wallace made clear that
he was not conceding any wrongdoing while
visiting Diaz’s family: "The defendant by
this motion does not admit to the
government’s allegations in its motion to
disqualify Mr. Schwartz." According to
Wallace, "[t]he actual conflict of
interest in this case is created by the
government’s allegations and implications
arising from the allegations." In his
amended motion to withdraw, Wallace also
alleged for the first time that Schwartz
did not fully apprise him of the
potential sentence he faced and that
Schwartz was confused about the issue.
According to Wallace, Schwartz promised
that he would only serve five years and
that "only because of this inducement did
he enter a plea of guilty."

  The district court denied Wallace’s
motion without an evidentiary hearing. It
rejected Wallace’s argument that because
his lawyer may have had a conflict of
interest at the time of the plea, this
was enough in itself to invalidate the
plea of guilty. Instead, the court
examined Wallace’s plea agreement and the
earlier Rule 11 colloquy for any evidence
that Wallace’s plea was not knowing or
voluntary. It concluded that Wallace’s
repeated sworn statements that he
understood that there was no agreement as
to sentence belied his claim that
Schwartz promised him he would receive
five years. Not finding any other
evidence of involuntariness or lack of
knowledge, and noting that Wallace was
not actually asserting that Schwartz
improperly pressured or compelled him to
enter into the guilty plea, the court saw
no grounds for permitting Wallace to
withdraw his plea.

  Wallace responded to the court’s ruling
with a motion seeking an evidentiary
hearing on the issues raised in his
amended motion to withdraw his guilty
plea. He made an offer of proof in which
he stated that he would testify at an
evidentiary hearing that Schwartz and the
U.S. Attorney both led him to believe he
would receive a five-year sentence and
that if he pleaded guilty, one of his
co-conspirators, Linda Adams, would be
"exonerated." The court granted a hearing
on the limited issue of what Schwartz had
told Wallace about the potential sentence
he faced if he elected to plead guilty.

  At the hearing, Wallace was the only
witness who testified. His statements
there amounted to a 180-degree shift from
his earlier testimony at the Rule 11
hearing. He claimed that he had not
discussed the terms of his plea agreement
with Schwartz, that he had not read the
plea documents, and that Schwartz did not
discuss the sentencing guidelines with
him. He testified that he did not
understand how relevant conduct would
affect his sentence. And he testified
that Schwartz had promised him a five-
year sentence. The district court was
unimpressed. In its order again denying
Wallace’s motion to withdraw his plea,
the court concluded that Wallace’s new
testimony simply "was not credible."
Revisiting the conflict issue, the court
supplemented its earlier reasoning with
the observation that if Schwartz and
Wallace had, as the government alleged,
intimidated and attempted to bribe the
Diaz family, Wallace was well aware of
Schwartz’s conflict when he entered his
plea and had thus effectively waived his
Sixth Amendment right. (If Schwartz had
really done nothing, as Wallace was also
asserting, then there would have been no
conflict that might have tainted his
advice.)

  The district court held a sentencing
hearing on November 1, 2000. Wallace
withdrew all objections to the
presentence report, but he argued that he
should not be sentenced to a term longer
than his life expectancy. The court
rejected this argument. Wallace also
mentioned the Supreme Court’s then-recent
decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), in order to "save the
issue for appeal." The court sentenced
Wallace to 240 months and five years of
supervised release.

II

  Wallace’s first three arguments on
appeal involve his motion to withdraw his
guilty plea. We review the district
court’s decision denying such a motion
for abuse of discretion. United States v.
Milquette, 214 F.3d 859, 861 (7th Cir.
2000). The court’s factual findings about
the existence (or not) of a fair and just
reason to withdraw the plea stand unless
they are clearly erroneous. United States
v. Messino, 55 F.3d 1241, 1247 (7th Cir.
1995).

  Federal Rule of Criminal Procedure 32(e)
provides that, prior to sentencing, a
defendant may be permitted to withdraw
his guilty plea for any "fair and just"
reason. Defendants do not have an
absolute right to withdraw a plea, United
States v. Pike, 211 F.3d 385, 388 (7th
Cir. 2000), but a defendant is entitled
to withdraw his plea if he can
demonstrate that it was not entered into
knowingly and voluntarily. United States
v. Ellison, 835 F.2d 687, 692-93 (7th
Cir. 1987) (lack of voluntariness is a
fair and just reason for withdrawing a
guilty plea).

  Wallace first argues that because
Schwartz labored under a conflict of
interest, Wallace received ineffective
assistance of counsel and thus his plea
was not voluntary. In broad terms, it is
true that a guilty plea entered by a
defendant who has received ineffective
assistance of counsel is generally deemed
to be involuntary. Hill v. Lockhart, 474
U.S. 52, 56 (1985). It is also true that
under certain circumstances, a defense
attorney who has an actual or a potential
conflict of interest renders ineffective
assistance. Cabello v. United States, 188
F.3d 871, 875 (7th Cir. 1999). But the
link between these two elements--the
conflict of interest, and the ineffective
assistance--must be demonstrated before
the defendant is entitled to withdraw his
plea on that basis.

  A defendant alleging ineffective
assistance must demonstrate both that her
attorney’s performance fell below an
objective standard of reasonableness and
that she was prejudiced by this deficient
representation. Strickland v. Washington,
466 U.S. 668, 687 (1984). In the typical
case, establishing prejudice requires
demonstrating that absent the attorney’s
deficient performance there is a
reasonable likelihood that the outcome of
the proceedings would have been
different. United States v. Henry, 933
F.2d 553, 561 (7th Cir. 1991). Because
"loyalty to her client is among the most
basic of an attorney’s duties and
[because of] the near impossibility of
measuring the precise effect on the
defense of representation corrupted by a
breach of this duty," however, it is
easier to satisfy Strickland’s prejudice
requirement in a conflict of interest
case. Cabello, 188 F.3d at 875.

  A defendant alleging a conflict of
interest can satisfy the prejudice
requirement in one of two ways. If the
trial judge knew or should have known
that a potential conflict of interest
existed and did not adequately address
the issue with the defendant, then we
will presume prejudice. Lipson v. United
States, 233 F.3d 942, 945 (7th Cir.
2000). Alternatively, if the trial judge
was not put on notice of a potential
conflict, following Cuyler v. Sullivan,
446 U.S. 335, 350 (1980), a court will
presume prejudice "if the defendant
demonstrates that her counsel actively
represented conflicting interests and
that the conflict adversely affected the
counsel’s performance." Cabello, 188 F.3d
at 875; see Cuyler, 446 U.S. at 348.

  In this case, the government’s motion to
disqualify Schwartz was the first sign
the court had of any conflicts Schwartz
might have with Wallace. As the court
implicitly recognized, there were two
possible areas of conflict. If the
government’s allegations of Schwartz’s
participation in witness-tampering were
true, then Schwartz had an actual
conflict throughout the proceedings,
including when he advised Wallace
regarding his guilty plea. Even if the
government’s allegations were not true,
however, the mere fact that Schwartz was
charged with wrongdoing created the
potential for his interests to conflict
with Wallace’s, and it certainly created
a potential public perception of
impropriety. The district court
disqualified Schwartz based only on these
potential future conflicts. It expressed
no opinion on whether the evidence
supported the government’s charges
against Schwartz and thus whether
Schwartz had an actual conflict at the
time Wallace pleaded guilty.

  Before the district court, Wallace
argued that Schwartz had an actual
conflict at the time he advised Wallace
regarding his plea. This is generally a
claim made under Cuyler. See Cabello, 188
F.3d at 874. To prevail, Wallace had to
"demonstrate with a reasonable degree of
specificity that a conflict actually
existed," Henry, 933 F.2d at 561, and
that the conflict adversely affected his
representation. Wallace did not attempt
to meet these burdens before the district
court. Instead, he maintained that an
actual conflict arose solely from the
"implications" of the government’s theory
of what happened in Rio Grande City and
that the mere possibility of an adverse
impact on Wallace’s representation was
enough to establish a Sixth Amendment
violation. In other words, as the
district court construed it, Wallace took
the position that the possibility of a
conflict was, by itself, enough to
establish a per se Sixth Amendment
violation.

  On appeal, Wallace again argues for a
per se rule, but he does not cite Cuyler
or offer an argument for why its
standards should not apply here. Wallace
argues instead that our opinion in Stoia
v. United States, 22 F.3d 766 (7th Cir.
1994), compels a ruling in his favor. We
disagree. In Stoia we expressly applied
Cuyler and required that the defendant
demonstrate both the existence of an
actual conflict and an adverse impact on
his representation. Unlike Wallace, Stoia
proved that at the relevant times his
attorney had an actual conflict of
interest that arose out of a plea
agreement that the attorney had entered
into with the government. There was no
dispute as to the existence of this plea
agreement nor was there any dispute as to
the competing interests it created for
Stoia’s attorney. In contrast, Wallace
never demonstrated that Schwartz actually
participated in any wrongdoing while in
Rio Grande City. While this may have been
one of the theories behind the
government’s motion and thus initially
its burden, it became Wallace’s burden
for purposes of the motion to withdraw
the plea. The court made no finding on
that question, and Wallace submitted an
affidavit in which he specifically denied
that the events alleged by the government
occurred.

  Perhaps more importantly, even with the
finding of an actual conflict, the Stoia
court went on to review the defendant’s
evidence of adverse impact on his
representation. Finding none, it rejected
his ineffective assistance of counsel
claim. In this case, however, Wallace has
put forth no actual evidence of an
adverse impact. The only evidence to
which Wallace points is his testimony at
the plea withdrawal hearing that Schwartz
promised him a five-year sentence. The
district court was correct in this case
to reject Wallace’s new stance on
credibility grounds and to hold Wallace
to his earlier sworn statements.

  Wallace also relies on United States v.
Cancilla, 725 F.2d 867 (2d Cir. 1984),
for the proposition that Schwartz’s
assistance was per se ineffective and
that he is thus entitled to withdraw the
plea. Briefly, Cancilla held that
specific evidence of adverse impact on
representation is not necessary, and that
the court would find a Sixth
Amendmentviolation whenever there is a
reasonable possibility that the
defendant’s attorney engaged in the
defendant’s wrongdoing. See also United
States v. Fulton, 5 F.3d 605 (2d Cir.
1993). But this court, in Cerro v. United
States, 872 F.2d 780 (7th Cir. 1989), has
already rejected the Cancilla rule. In
Cerro, the defendant’s attorney was
implicated in the defendant’s wrongdoing,
and the defendant argued for Cancilla’s
per se rule. This court declined to apply
Cancilla because the evidence on which
the defendant relied to implicate his
attorney "did not clearly establish" his
involvement in criminal activity and
because, even if it did, the Cancilla
rule would require us to accept the
"disingenuous and incongruous" argument
that the defendant received ineffective
assistance on the basis of a conflict
that the defendant was well aware of long
before trial. Id. at 785. See also United
States v. Montana, 199 F.3d 947 (7th Cir.
1999), which held that the burden is on
the defendant to demonstrate that his
attorney actually did fear prosecution,
and that absent evidence that the
attorney actually "pulled his punches,"
no inference of intimidation could arise.
Id. at 949.

  To the extent that Wallace is implicitly
inviting us to reject Stoia, Cerro, and
Montana, and to adopt the Cancilla
approach, we decline the overture. (We
are aware that the Supreme Court has
under consideration the case of Mickens
v. Taylor, 240 F.3d 348 (4th Cir. 2000)
(en banc), cert. granted, 121 S. Ct. 1651
(2001), and that Mickens may throw some
light on the burden a petitioner like
Wallace has to prove adverse effect and
prejudice under Cuyler, when an actual
conflict of interest was present.
Anything we hold in this case is
obviously subject to modification,
depending upon the outcome of Mickens.)
Montana, consistently with Cuyler,
requires that the defendant show some
adverse effect on his representation
stemming from his counsel’s conflict. As
we have already explained, Wallace failed
to do so. Because we can resolve
Wallace’s case this way, we need not
delve into some potentially troublesome
questions that could arise in other
situations. For example, requiring
Wallace to demonstrate that Schwartz had
an actual conflict at the time Wallace
entered his guilty plea would require
Wallace to put forward potentially
incriminating evidence prior to
sentencing; that evidence could at a
minimum lead to a higher sentence, a
sentence enhancement for obstruction of
justice, or additional criminal charges.
Such a requirement might have Fifth
Amendment implications, and it might not
suffice to protect the defendant’s Sixth
Amendment right to conflict-free counsel.
Asking a defendant to prove a crime in
which she is implicated would condition
her ability to vindicate her right
toconflict-free counsel on a self-
incriminating statement. But on the
record here, the district court properly
rejected Wallace’s claim that his Sixth
Amendment rights were violated, and it
did not abuse its discretion in denying
the motion to withdraw the plea on the
basis of Schwartz’s alleged actual
conflict.

  Wallace next argues that he should have
been permitted to withdraw his guilty
plea because he did not understand the
consequences of that plea. This argument
borders on the frivolous, and we reject
it. Wallace is trying to overturn
credibility findings made by the district
court, and in the process he is also
denigrating the solemnity of the Rule 11
proceeding. See United States v. Stewart,
198 F.3d 984, 986-87 (7th Cir. 1999).

  The next arrow in Wallace’s quiver is
Apprendi. He argues that his plea was not
knowing and voluntary because the
indictment did not specify a quantity of
marijuana and the court did not inform
him during the Rule 11 colloquy that the
government would have to prove drug
quantity beyond a reasonable doubt.
Wallace did not object to these omissions
during the plea colloquy, nor did he
raise the issue in either of his motions
to withdraw his plea. He mentioned
Apprendi during sentencing but made no
argument to the district court. He merely
stated that he wanted "the Seventh
Circuit to consider the impact of
Apprendi v. New Jersey on this case."
This is of course not enough to preserve
an issue for appellate review. We will
thus review Wallace’s Apprendi claim only
for plain error. United States v. Nance,
236 F.3d 820, 824 (7th Cir. 2000).

  Prior to accepting a defendant’s guilty
plea, a district court is expected to
ensure that a defendant understands the
elements of the crime to which he is
admitting. United States v. Ranum, 96
F.3d 1020, 1024 (7th Cir. 1996). Since
Apprendi, it has been clear that to the
extent that drug quantity affects a
defendant’s statutory maximum sentence,
it is an aspect of the crime that should
be specified in the indictment and must
be proven beyond a reasonable doubt.
Wallace was sentenced to 20 years. Under
the Sentencing Guidelines, in order to
receive a sentence for conspiracy to
distribute marijuana that is greater than
five years but less than forty, the
defendant’s crime must involve at least
100 kilograms of marijuana. 21 U.S.C.
sec. 841(b)(1)(B)(vii). There was thus
error in both Wallace’s indictment and in
the plea colloquy. In order to satisfy
the plain error standard, however, the
mistakes below must have "seriously
affect[ed] the fairness, integrity, or
public reputation of [the] judicial
proceedings." Johnson v. United States,
520 U.S. 461, 467 (1997). In this case
there was no such effect. Wallace has
never denied his involvement in the two
transactions totaling 1,600 pounds, or
over 700 kilograms, of marijuana. To the
contrary, he admitted to them under oath,
both in his stipulation of facts and
during the plea colloquy, and conceded at
sentencing that the government could
prove at least these two transactions
beyond a reasonable doubt. Under these
circumstances the Apprendi errors in the
indictment and plea colloquy do not
entitle Wallace to withdraw his plea.
United States v. Gilliam, 255 F.3d 428,
434-35 (7th Cir. 2001) (indictment error
not grounds for withdrawal where
defendant admitted under oath to
necessary drug quantity); Lee v. United
States, 113 F.3d 73, 75 (7th Cir. 1997)
(permitting withdrawal of plea only where
change in law casts doubt on factual
sufficiency of plea).

  Finally, Wallace challenges his sentence
as unconstitutional because it exceeds
his life expectancy. Even assuming for
purposes of argument that Wallace
adequately established his life
expectancy at sentencing, this claim need
not detain us for long. Wallace’s theory
has its origin in United States v.
Martin, 63 F.3d 1422 (7th Cir. 1995).
Whatever the language of Martin may have
suggested, we have since been very clear
that its holding is limited to the
particular statute and unique
circumstances of that case. Moreover, we
have rejected the applicability of
Martin’s holding to convictions and
sentences imposed under 21 U.S.C.
sec.sec. 841(a)(1) and 846. See United
States v. Robbins, 197 F.3d 829, 852 (7th
Cir. 1999).

III

  Because the district court acted within
its discretion to deny Wallace’s motion
to withdraw his guilty plea, and because
there was no error relating to the length
of the sentence Wallace received, the
judgment of the district court is
AFFIRMED.
