                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-2194
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

FABIAN LAFUENTE,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 01 CR 881—Harry D. Leinenweber, Judge.
                          ____________
     ARGUED JUNE 1, 2005—DECIDED OCTOBER 18, 2005
                     ____________


  Before BAUER, RIPPLE, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. Fabian Lafuente was convicted by
a jury of attempting to possess with intent to distribute
cocaine, possessing with intent to distribute cocaine, and
possessing a firearm with an altered, removed, or obliter-
ated serial number. He was sentenced to 300 months’
imprisonment. Lafuente appeals his conviction, arguing
that his trial counsel had labored under a conflict of interest
due to her representation of a different defendant in
another case. The district court denied his motion for a new
trial, and, because Lafuente suffered no adverse impact
from his attorney’s representation, we affirm his conviction.
Lafuente also challenges his sentence in light of United
2                                              No. 04-2194

States v. Booker, 125 S. Ct. 738 (2005); on that matter we
grant a limited remand.


                        I. History
  Attorney Andrea Gambino was defense counsel for both
Fabian Lafuente and Eddie Cardona. The timing of her
representation of these two individuals is important to this
case, so we will endeavor to lay it out clearly. Gambino’s
representation of Cardona began on April 26, 2002. This
was after Cardona had appeared with different counsel, in
September and October 2001, to proffer information to
the government in connection with the case against him.
Attorney Keri Ambrosio entered her appearance for
Cardona on October 4, 2002, and she worked together
with Gambino on his case until December 4, 2004, when she
was granted leave to withdraw.
  Gambino and Ambrosio entered their appearances for
Lafuente on October 9, 2002, in the proceedings which
eventually led to this appeal. Lafuente had been charged in
December 2001 with attempting to possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846 (Count
One), possessing with intent to distribute cocaine, in vio-
lation of 21 U.S.C. § 841(a)(1) (Count Two), possessing
a firearm with an altered, removed, or obliterated serial
number, in violation of 18 U.S.C. § 922(k) (Count Three),
making a false statement designed to deceive a firearms
dealer in connection with the purchase of a firearm, in
violation of 18 U.S.C. § 922(a)(6) (Count Four), and pos-
sessing a firearm in furtherance of the commission of a drug
trafficking crime, in violation of 18 U.S.C. § 924 (c)(1)
(Count Five). A jury trial beginning on September 16, 2003,
concluded with a verdict on September 22 convicting
No. 04-2194                                                3

Lafuente of Counts One, Two, and Three.1 The government
did not call Cardona as a witness in Lafuente’s trial, and
there is no indication that Cardona’s name was ever
identified on a list of potential government witnesses.
  On September 22, 2003, the government filed its version
of the offense setting forth the general bases on which it
sought to increase the amount of drugs for which Lafuente
would be held responsible at sentencing. Cardona’s name
was not mentioned in this filing.
  On October 7, 2003, Gambino and Ambrosio filed a motion
to withdraw as Lafuente’s counsel. This motion was granted
on October 9. Eventually, after two other attorneys were
hired or appointed and then terminated in succession,
George Leighton represented Lafuente.
   On October 15, 2003, the government filed a supplemen-
tal version of the offense, which, for the first time, named
Cardona as someone with knowledge of Lafuente’s prior
drug dealings, gang affiliation, nickname, and possession of
firearms.
  On February 13, 2004, Lafuente (through Leighton) filed
a motion for a new trial based on ineffective assistance
of counsel. Specifically, Lafuente argued that Gambino
had failed to disclose to him certain disciplinary and mental
health problems that she had, that she failed to call mate-
rial witnesses, that she pressured him to testify, that she
failed to make certain objections at trial, and that she did
not make adequate motions to suppress evidence. Lafuente
also claimed that Gambino did not inform him that she had
been representing Cardona, which he claimed was a conflict
of interest. Lafuente requested an evidentiary hearing on
his motion for a new trial.


1
   The government moved to dismiss Count Four the day before
trial, and the jury acquitted Lafuente of Count Five.
4                                                  No. 04-2194

  The district court denied both Lafuente’s motion for an
evidentiary hearing and his motion for a new trial on March
11, 2004. The court noted that it had advised Lafuente of
Gambino’s disciplinary issues, and that Lafuente had
indicated he wanted to proceed with Gambino as his trial
counsel. The court also stated that Gambino’s and
Ambrosio’s representation of Lafuente at trial was “most
adequate.”
   Finally, on April 28, a sentencing hearing was conducted.
The government presented evidence of additional quantities
of cocaine attributable to Lafuente’s drug trafficking
activities. ATF Special Agent Mark Anton was called to
testify regarding Lafuente’s involvement in the drug
trafficking of the Insane Deuces street gang, among other
things. When Anton was questioned about an interview
with Cardona, he was unable to recall the date of the
interview; the government attorney did not ask any further
questions about Cardona. (4/28/04 Tr. at 17-18.) Detective
Tom Wolek of the Elgin, Illinois, Police Department testi-
fied on the subject of letters written by Lafuente (found in
the home of another Insane Deuces gang member) that
suggested Lafuente’s unwillingness to cooperate with the
government. (4/28/04 Tr. at 45-47, 54 (“The only way you
would get less time is by working with these people and you
know a nigga ain’t gonna get down like that.”).) Lafuente
himself testified at the sentencing hearing, verifying that in
the letters referred to by Wolek he was stating his unwill-
ingness to cooperate with the government and that “I’m not
going to testify or . . . [t]ell on nobody.” (4/28/04 Tr. at 114-
15.)
  While the jury had found Lafuente guilty of possessing at
least 2 kilograms and attempting to possess at least
5 kilograms, the district court concluded that 14 kilograms
of cocaine were attributable to Lafuente. This increased
amount was not based on information provided by Cardona,
but on other evidence presented by the government.
No. 04-2194                                                 5

Fourteen kilograms translated to a base offense level of 32
under the Sentencing Guidelines. The district court in-
creased that level for possession of at least two handguns
during commission of the offense (two levels), a leadership
position in the Elgin Insane Deuces (four levels), and
obstruction of justice in the form of false testimony (two
levels). The total offense level was therefore brought to 40.
With one criminal history point, Lafuente was in Criminal
History Category I. The applicable sentencing guidelines
range as determined by the district court was thus 292-365
months. The court ultimately chose a sentence of 300
months’ imprisonment for Counts One and Two, and 60
months’ imprisonment for Count Three, with sentences to
run concurrently.


                       II. Analysis
  Lafuente appeals both his conviction, arguing that his
attorney’s conflict of interest resulted in unconstitutionally
ineffective assistance of counsel, and his sentence, on
Booker grounds.


  A. Ineffective Assistance of Counsel
  The standard of review for claims of a conflict of interest
resulting in ineffective assistance of counsel is de novo.
Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997).
Criminal defendants are guaranteed effective assistance
of counsel, and have the right to representation free
from conflict of interest, at all stages of the proceedings
against them. Hall v. United States, 371 F.3d 969, 973 (7th
Cir. 2004) (internal quotations and citations omitted).
  Lafuente first argues that he is entitled to automatic
reversal or a remand for an evidentiary hearing under
Holloway v. Arkansas, 435 U.S. 475, 489 (1978), because the
district court did not adequately investigate his conflict
6                                                No. 04-2194

claim. See Holleman v. Cotton, 301 F.3d 737, 742 (7th Cir.
2002) (“Under Holloway and Cuyler, a trial court has the
duty to inquire adequately into a trial counsel’s conflict
of interest if it knows or reasonably should know that a
particular conflict exists.”). Holloway dealt with a much
different situation than we have here: in that case, an
attorney representing three co-defendants at the same trial
brought his perceived conflict to the attention of the district
court twice prior to trial, but the district court denied the
attorney’s motion to appoint separate counsel and required
the attorney to represent all three defendants. Holloway,
435 U.S. at 477-78. The Supreme Court reversed and
remanded, holding that the district court’s failure to
appoint separate counsel, or to inquire further into whether
the risk of a conflict was too remote to warrant separate
counsel, deprived the defendants of effective assistance of
counsel. Id. at 484. Subsequent Supreme Court decisions
have limited the Holloway holding to situations in which
the district court requires joint representation over a timely
objection. See Mickens v. Taylor, 535 U.S. 162, 168-69
(2002); Cuyler v. Sullivan, 446 U.S. 335, 346 (1980). In
Lafuente’s case, not only was there no joint representation,
but Lafuente did not indicate any conflict of interest prior
to or during his trial.
  Lafuente contends that the district court’s inquiry into
the conflict claim was inadequate under standards set forth
in other cases as well. He cites United States v. Gallegos, a
Tenth Circuit case in which the defendant’s attorney was
faced with cross-examining a former client who invoked his
Fifth Amendment right not to testify. 108 F.3d 1272, 1279
(10th Cir. 1997). The court held that the district court’s
failure to appoint separate counsel for the witness, take
adequate steps to ascertain whether the risk was too remote
to warrant separate counsel, or determine whether the
defendant and the witness were willing to waive their rights
to conflict-free representation required reversal. See id. at
No. 04-2194                                                7

1282. In Lafuente’s case, Cardona was never listed as a
potential government witness while Gambino represented
Lafuente, so Gambino was never faced with cross-examin-
ing a former client to the detriment of a current client.
When the conflict of interest issue was raised, after trial
and when Lafuente was already being represented by a new
attorney, the court considered the evidence before it (which
included the entire trial record) and, denying Lafuente’s
request for a new trial, determined that no conflict existed.
This was an adequate inquiry.
  The Fourth Circuit case cited by Lafuente, United States
v. Gilliam, did involve a defendant who asserted a conflict
of interest at sentencing. 975 F.2d 1050, 1054 (4th Cir.
1992). But that was another case of joint representation,
and the district court was reversed for its failure to follow
Federal Rule of Criminal Procedure 44(c), which requires a
trial judge to advise co-defendants about their right to
effective and separate representation. See id. As we have
already noted, Lafuente’s case involved no joint representa-
tion; Rule 44(c) was not implicated, and the trial court had
discretion to determine what type of hearing was necessary
to address Lafuente’s conflict of interest claim. See United
States v. Fish, 34 F.3d 488, 493 (7th Cir. 1994). Lafuente
was not entitled to a presumption of prejudice; we move on
to an analysis under Cuyler. See id.
  “In order to establish a violation of the Sixth Amendment,
a defendant who raised no objection at trial must demon-
strate that an actual conflict of interest adversely affected
his lawyer’s performance.” Cuyler, 446 U.S. at 348. We need
not determine whether an actual conflict existed in this case
because Lafuente cannot show that Gambino’s representa-
tion of Cardona adversely affected her performance in his
case. See Hall, 371 F.3d at 974. In order to demonstrate an
adverse effect, Lafuente must show that “there is a reason-
able likelihood that his counsel’s performance would have
been different had there been no conflict of interest.” Id.
8                                              No. 04-2194

  The government never listed Cardona as a potential
witness at trial. The information proffered by Cardona had
nothing to do with the offenses of which Lafuente was
accused, but rather with Lafuente’s prior drug dealings and
gang involvement, which were only relevant for sentencing
purposes. Thus, Gambino did not face the possibility of
having to cross-examine him to the detriment of either
Cardona or Lafuente. Lafuente’s only argument related to
an adverse effect is that Gambino’s representation of
Cardona foreclosed the possibility of an agreement under
which Lafuente would testify against Cardona in exchange
for a recommendation by the government for a reduced
sentence. There is more than adequate evidence in the
record and recounted above to show that Lafuente was dead
set against cooperation with the government, and that a
plea bargain was never a possibility. Lafuente’s own letters
and trial testimony admitted as much. “If the petitioner’s
counsel could not have done anything differently, if there
was no alternative course of action, then there can be no
Sixth Amendment violation, even if a conflict of interest
existed.” Cates v. Superintendent of Ind. Youth Ctr., 981
F.2d 949, 955 (7th Cir. 1992). Finally, we note that the
information provided by Cardona did not form the basis for
any sentencing enhancement.


    B. Sentencing
  Lafuente contends that he was sentenced in violation of
the Sixth Amendment because the district court treated the
Sentencing Guidelines as mandatory and made findings of
fact that increased his sentence. The court did hold
Lafuente responsible for 14 kilograms of cocaine (the jury
found him guilty of possession in excess of 2 kilograms and
attempted possession in excess of 5 kilograms) and also
increased the base offense level on findings of gun posses-
sion, gang leadership, and obstruction of justice. In United
No. 04-2194                                                  9

States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court
held that factual findings used to increase a defendant’s
sentence must be made by a jury beyond a reasonable
doubt.
   Because Lafuente did not raise this issue in the dis-
trict court—despite his assertions to the contrary, his
objections at sentencing related only to the reliability of
certain information used by the Probation Office in its
Presentence Investigation Report—our review is for plain
error. See Booker, 125 S. Ct. at 769. Under that standard,
we may exercise our discretion to correct error if it is plain,
it affects substantial rights, and it equates to a miscarriage
of justice. See United States v. Banks, 405 F.3d 559, 572
(7th Cir. 2005). We have stated that a miscarriage of justice
occurs if a district court, in having thought itself bound by
the guidelines, imposes a longer sentence than it would
have if it had been aware of its ability to exercise its
discretion. Id. Pursuant to our decision in United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005), we order a limited
remand of this case so that the district court can answer the
question of whether it would have imposed the same
sentence even under advisory guidelines. We will then know
whether plain error occurred in this case.


                      III. Conclusion
  For the foregoing reasons, we AFFIRM Lafuente’s convic-
tion. While retaining jurisdiction, we REMAND this case
for the limited purpose of allowing the district court to
advise us whether it would have imposed the same sentence
knowing that the guidelines are not mandatory.
10                                        No. 04-2194

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-18-05
