                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3647
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Leland Duane Young,                      *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 8, 2002

                                   Filed: January 8, 2003 (corrected 1/10/03)
                                    ___________

Before BOWMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

      The appellant, Leland Duane Young (Young),1 pleaded guilty to possession
with intent to distribute, distribution, and conspiracy to distribute more than 100
grams of methamphetamine and was sentenced to 188 months in prison. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), 846 (1988 & Supp. V). On appeal, Young



      1
       Young was previously before this Court in United States v. Young, 223 F.3d
905 (8th Cir. 2000) (reversing suppression of inculpatory affidavit), cert. denied, 531
U.S. 1168 (2001).
urges that the District Court2 erred in four ways: when it assessed him a two-level
increase for obstruction of justice; when it declined to grant him a three-level
reduction for acceptance of responsibility; when it declined to depart downward in
his sentence based on his pre-sentence confinement, his health, and his age; and when
it declined to depart downward based on his claims of ineffective assistance of
counsel. We find no error in the record before us and affirm.

      On appeal, a district court's interpretation of the sentencing guidelines is
subject to de novo review while its findings of fact are reviewed for clear error.
United States v. Auginash, 266 F.3d 781, 785 (8th Cir. 2001) (quoting United States
v. Larson, 110 F.3d 620, 627 (8th Cir. 1997)). We consider Young's four claims in
turn.

       Young first argues that his failure to appear at his plea and sentencing hearing
does not warrant the obstruction-of-justice enhancement that the District Court
applied. We review the District Court's imposition of the enhancement for clear error.
United States v. Martinez, 234 F.3d 1047, 1048 (8th Cir. 2000). Section 3C1.1 of the
United States Sentencing Guidelines (U.S.S.G.) provides for a two-level increase in
a defendant's offense level where "the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during the investigation,
prosecution, or sentencing of the instant offense." U.S.S.G. § 3C1.1.3 The
commentary's non-exhaustive list of behavior that satisfies § 3C1.1 notes that
"escaping or attempting to escape from custody before trial or sentencing; or willfully
failing to appear, as ordered, for a judicial proceeding" is enough to bring a defendant
within § 3C1.1's ambit. Id. at cmt. 3(e). Young willfully fled the jurisdiction before


      2
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
      3
       The District Court sentenced Young under the November 1, 1992 edition of
the U.S.S.G.

                                          -2-
his plea and sentencing hearing. He remained at large for some five months and was
only apprehended after he was identified during a routine traffic stop. In these
circumstances, the District Court did not clearly err when it applied § 3C1.1's two-
level enhancement to Young's base-offense level.

      Young next contends that, notwithstanding his flight from justice, his case is
extraordinary and that the District Court erred when it refused to grant him a three-
level decrease for acceptance of responsibility pursuant to § 3E1.1(a)-(b) of the
guidelines. Like a district court's decision to apply an obstruction-of-justice
enhancement, the refusal to grant an acceptance-of-responsibility decrease in a
defendant's offense level is reviewed for clear error. Martinez, 234 F.3d at 1048. The
Sentencing Guidelines provide that in an "extraordinary case[]" a defendant might
receive an obstruction-of-justice enhancement and an acceptance-of-responsibility
decrease. Id. at § 3E1.1, cmt. 4; see also United States v. Honken, 184 F.3d 961, 967-
68 (8th Cir. 1999), cert. denied, 528 U.S. 1056 (1999). We agree with the District
Court that Young has shown no reason for treating his case as extraordinary.
Accordingly, the District Court's refusal to grant Young an acceptance-of-
responsibility decrease was not clearly erroneous. Like the District Court, we
conclude that neither the defendant's apparent doubt concerning his attorney's loyalty
nor the flight of his co-defendants takes his case out of the ordinary.

       Young also maintains that the District Court erred when it declined to depart
downward based on his age, health, and pre-sentence confinement. Unlike a district
court's decision to enhance for obstruction of justice or to grant a departure for
acceptance of responsibility, a district court's discretionary decision not to grant a
§ 5K2.0 departure from the applicable guidelines sentencing range is unreviewable
absent an allegation that the district court had an unconstitutional motivation or
erroneously determined that it lacked the authority to depart. United States v. Lalley,
257 F.3d 751, 757 (8th Cir. 2001) (citing United States v. Navarro, 218 F.3d 895, 897
(8th Cir. 2000)). Here, the District Court properly found that it had authority to

                                         -3-
exercise its discretion to depart under § 5K2.0 but declined to do so. Because there
is no claim of unconstitutional motivation, the District Court's ruling is not subject
to review.

      Finally, Young urges that the District Court should have granted him a
downward departure pursuant to § 5K2.0 and 18 U.S.C. § 3553 because the attorney
who represented him prior to his flight from justice (Young obtained different counsel
after he was apprehended) labored under a conflict of interest and provided
ineffective assistance of counsel.4 It is usually the case that "[e]xcept where a
miscarriage of justice would obviously result or the outcome would be inconsistent
with substantial justice, ineffective assistance of counsel issues are more
appropriately raised in collateral proceedings because they normally involve facts
outside the original record." United States v. Woods, 270 F.3d 728, 730 (8th Cir.
2001) (citation omitted), cert. denied, 122 S.Ct. 1342 (2002). In this case, however,
Young presented evidence regarding his ineffective-assistance-of-counsel claim at
the hearing on a motion in limine as well as at his sentencing hearing, and the District
Court denied the claim. Therefore, we may reach Young's ineffective-assistance-of-
counsel claim in this direct appeal.

      On the record before us, we agree with the District Court that Young has failed
to demonstrate either an actual conflict of interest or constitutionally substandard
performance and resulting prejudice as required by Strickland v. Washington, 466

      4
       Specifically, Young argues that his original attorney, Rick Olson, labored
under a conflict of interest because, although a solo practitioner, he shared office
space with his co-defendant's attorney. Young also claims that he was coerced into
accepting an initial plea bargain (Young entered into a second, superseding plea
bargain following his flight from justice) by his co-defendant's attorney during an
alleged telephone conversation. Finally, Young contends that he received ineffective
assistance of counsel because his attorney (Rick Olson) did not personally review the
government's entire discovery file and instead relied on the opinion of Young's co-
defendant's attorney regarding some of the evidence.

                                          -4-
U.S. 668, 694 (1984).5 Previously, we held that Young's waiver of his rights in the
plea bargain he entered into before fleeing from prosecution was knowing and
voluntary and that he secured certain benefits from the bargain such as a promise not
to seek a sentencing enhancement that could have doubled his sentence. Young, 223
F.3d at 907, 911. Young has failed to present any evidence from which we can
conclude that his Sixth Amendment rights were violated. Based on the record as a
whole, the District Court properly found that there was no ineffective assistance of
counsel.

       Moreover, assuming arguendo that Young were able to establish an ineffective-
assistance-of-counsel claim, a § 5K2.0 departure would not be his remedy. A district
court must impose a sentence within the applicable guidelines range "unless the court
finds that there exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission." 18


      5
        A defendant's claim that his or her attorney labored under a conflict of interest
and therefore provided constitutionally inadequate representation is judged under
several different standards. Where the alleged conflict involves multiple or serial
representation, two different standards apply. If the defendant raised the issue at trial,
the defendant need only prove an actual conflict of interest and reversal follows
automatically upon such a showing. Mickens v. Taylor, 535 U.S. 162, ---,122 S. Ct.
1237, 1241-42 (2002). Where the issue was not raised at trial, the defendant must
show an actual conflict of interest that affected the adequacy of his or her
representation. Id. at 1243. On the other hand, where the alleged conflict involves
ethical issues other than multiple or serial representation, this Circuit has held that
Strickland is still the appropriate standard. Caban v. United States, 281 F.3d 778,
783-84 (8th Cir. 2002); see also Mickens, 535 U.S. at ---, 122 S. Ct. at 1245-46
(noting that "the language of [Cuyler v.] Sullivan itself does not clearly establish, or
indeed even support, such [an] expansive application" of the automatic reversal
standard to other types of ethical conflicts). Thus, Strickland governs our inquiry into
the whole of Young's Sixth Amendment claims. However, even if we were to apply
one of the more lenient standards, we would still conclude that Young has failed to
establish a violation of his Sixth Amendment rights.

                                           -5-
U.S.C. § 3553(b). Unlike the nature of the offense or the defendant's remorse,
culpability, or level of participation, the fact that a defendant received ineffective
assistance of counsel does not speak to "the nature and circumstances of the offense
and the history and characteristics of the defendant," the factors a court must consider
when imposing a sentence. Id. at § 3553(a)(1). In contrast, ineffective assistance of
counsel in the Strickland sense is a constitutional violation that speaks to the validity
of the defendant's conviction or sentence. It follows that ineffective assistance of
counsel is not a valid ground for a downward departure under § 5K2.0. See United
States v. Basalo, 258 F.3d 945, 950 (9th Cir. 2001); United States v. Bicaksiz, 194
F.3d 390, 398 (2d Cir. 1999), cert. denied, 528 U.S. 1161 (2000); United States v.
Martinez, 136 F.3d 972, 980 (4th Cir.), cert. denied, 525 U.S. 849 (1998). Were we
to hold that there was ineffective assistance of counsel, which in this case we do not,
the remedy would be to vacate the underlying conviction or sentence, and not to order
a § 5K2.0 departure.

       There being no merit to any of Young's several claims, we affirm the judgment
of the District Court.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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