UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4105

SERGIO GONZALEZ,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4153

LETICIA HERNANDEZ-CASTRO,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-97-264)

Submitted: July 7, 1998

Decided: August 28, 1998

Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Marvin D. Miller, Alexandria, Virginia; Jeffrey D. Zimmerman,
Frank Salvato, Alexandria, Virginia, for Appellants. Helen F. Fahey,
United States Attorney, Robert A. Spencer, Assistant United States
Attorney, Thomas G. Connolly, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In these consolidated appeals, Sergio Gonzalez and Leticia
Hernandez-Castro appeal their convictions and sentences on one
count of conspiracy to transport illegal aliens in violation of 18 U.S.C.
§ 371 (1994) and seven counts of transporting illegal aliens in viola-
tion of 8 U.S.C.A. § 1324(a)(1)(A)(ii) (West Supp. 1998) and 18
U.S.C. § 2 (1994). Both Appellants worked for a Houston, Texas
company which transported illegal aliens by vans to locations across
the country for the purpose of working as laborers. The business was
owned by Hernandez-Castro's brother-in-law. Hernandez-Castro was
responsible for managing the office. Contractors would call the Hous-
ton office, speak to Hernandez-Castro, and place orders for a number
of laborers. She was also responsible for paying the many van drivers
who worked for the business. Gonzalez was responsible for picking
up illegal aliens from homes in the Houston area and bringing them
back to the office. He also paid the "coyotes" who recruited the illegal
aliens. Both Appellants instructed van drivers on what roads to take
and how to manage their passengers at rest-stops in order to evade
immigration officials and Border Patrol.

On appeal, Appellants challenge the effectiveness of their counsel
due to counsels' joint representation. Appellants also contend the

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court erred in failing to make an inquiry regarding the joint represen-
tation as required under the Sixth Amendment and Fed. R. Crim. P.
44(c). Finally, Appellants challenge enhancements to their offense
levels. Finding no reversible error, we affirm.

For arraignment, all pre-trial matters, trial and sentencing, Appel-
lants, who are husband and wife, were jointly represented by both
members of the law firm of Cavazos & Higgins. Appellants now con-
tend that they received ineffective assistance of counsel because their
attorneys were burdened by an actual conflict of interest and the court
failed to take appropriate measures to protect each Appellant's right
to conflict-free representation.

Appellants can raise the claim of ineffective assistance of counsel
on direct appeal "if and only if it conclusively appears from the record
that [their counsel] did not provide effective assistance." United
States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (citing United
States v. Smith, 62 F.3d 641, 650-51 (4th Cir. 1995)), cert. denied,
___ U.S. ___, 1998 WL 289709 (U.S. June 26, 1998) (Nos. 97-9399,
97-9221). Generally, this issue is better suited for a motion under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1998), because Appellants
would be able to establish a more detailed record and the attorneys
would be afforded an opportunity to explain their actions. See United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).

Joint representation is not a per se violation of the Sixth Amend-
ment right to effective assistance of counsel. See Holloway v.
Arkansas, 435 U.S. 475, 482 (1978). In order to succeed on this
claim, Appellants must show the existence of an actual conflict of
interest. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). We find
the record before us does not demonstrate such a conflict. Appellants
put forth a unified defense. Appellate counsel suggest numerous
examples of possible conflict of interests; however, none of the sug-
gestions are sufficiently supported by the record. 1 Thus, because it
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1 For instance, appellate counsel contend that defense counsel were pre-
vented from exploring possible plea negotiations due to their joint repre-
sentation. There is nothing in the record to support this contention. There
is nothing to show that either Appellant was interested in entering plea

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does not conclusively appear from the record that either Appellant
received ineffective assistance of counsel, this claim should be raised
in a § 2255 motion.

Appellants also contend that the court erred in failing to inquire
regarding the joint representation in violation of both the Sixth
Amendment and Fed. R. Crim. P. 44(c). Under the Sixth Amendment,
courts are not required in all instances to inquire into the appropriate-
ness of joint representation. Rather, courts are permitted to assume
that joint representation is conflict-free, absent some indication of a
conflict. See Cuyler, 446 U.S. at 346-47; see also Gilliam, 975 F.2d
at 1053. Joint representation may be part of a strategic choice. See
Cuyler, 446 U.S. at 348. Likewise, Appellants' Rule 44(c) argument
does not warrant a reversal in this case. Although the district court did
not follow Rule 44(c)'s clear mandate to "promptly inquire" into
every joint representation, see Fed. R. Crim. P. 44(c), this omission
is not, in itself, reversible error when the issue of a conflict was never
brought to the attention of the court. See United States v. Arias, 678
F.2d 1202, 1205 (4th Cir. 1982); see also Gilliam, 975 F.2d at 1054
(district court must hold Rule 44(c) hearing even if issue of conflict
is raised at sentencing). When a defendant fails to raise this issue at
all in district court, the court's failure to conduct a Rule 44(c) hearing
constitutes reversible error when the defendant can demonstrate that
an actual conflict of interest did exist, see Gilliam, 975 F.2d 1053-54.
Yet, as we have previously stated, the record does not show evidence
of a conflict. Therefore, the court's failure to inquire regarding the
joint representation does not constitute reversible error.

Appellant Hernandez-Castro contends that the court erred in apply-
ing a four-level upward adjustment to her offense level for being an
"organizer or leader" under U.S. Sentencing Guidelines Manual
§ 3B1.1(a) (1997).2 We review role-in-the-offense adjustments for
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negotiations. See, e.g., United States v. Gilliam, 975 F.2d 1050, 1054
(4th Cir. 1992) (possible actual conflict shown when defendants, repre-
sented by same counsel, were divided on the issue of accepting a plea
agreement). Since both Appellants maintained their innocence through-
out the trial, it is just as likely, based on the record before us, that neither
Appellant desired to plead guilty to any offense.
2 Under USSG § 3B1.1(a), a defendant's offense level may be
increased four levels if the court finds the defendant was an organizer or

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clear error. See United States v. Perkins, 108 F.3d 512, 518 (4th Cir.
1997). We find there was no clear error. Hernandez-Castro managed
the Houston office, which employed twenty to thirty drivers and used
twenty to twenty-five vans. She took orders from contractors and dis-
patched drivers to locations across the country. She gave instructions
to the drivers and paid them once the job was complete. The fact that
she may have reported to her brother-in-law for instructions does not
necessarily mean that she was not eligible for the increase as an orga-
nizer and leader. The commentary to § 3B1.1 states that there can be
more than one person who qualifies as an organizer or leader.

Likewise, the court did not clearly err in assigning Appellant Gon-
zalez a three-level adjustment for his role in the offense as a "manager
or supervisor" under § 3B1.1(b). Gonzalez attributes this error in large
part to counsels' failure to develop his role due to their alleged con-
flict. As already stated, there is no evidence of a conflict. On the other
hand, there was sufficient evidence for the court to make its determi-
nation regarding his role in the offense. Gonzalez was responsible for
instructing van drivers, picking up illegal immigrants, and dealing
with the "coyotes."

Gonzalez also contends that the court erred in enhancing his
offense level two levels for obstruction of justice based upon a threat
he made to a Government witness as the witness was exiting the
courtroom after completing his testimony. The Government prosecu-
tor informed the court of the threat later that same day after the lunch
break. The court denied the Government's request to recall the wit-
ness, but instructed defense counsel to caution Gonzalez. Gonzalez
contends the court erred at sentencing in making this two-level adjust-
ment because the obstruction was not shown by a preponderance of
the evidence. According to Gonzalez, the only evidence of the threat
was the Government prosecutor's statement regarding what he had
been told by a Government witness. Defense counsel stated at sen-
tencing that he was sitting at the defense table when the alleged threat
was made and did not hear any threat.
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leader of a criminal activity that involved five or more participants or
was otherwise extensive.

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Under USSG § 3C1.1, an offense level may be increased two levels
if "the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the investiga-
tion, prosecution, or sentencing of the instant offense." Application
Note 3 states that the increase is warranted if the defendant threat-
ened, intimidated or otherwise unlawfully influenced a witness. We
review the court's finding that Gonzalez obstructed justice for clear
error. See United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir.
1995).

Again, we conclude there is no clear error. Evidence of the threat
was provided to the court soon after it was delivered. Furthermore,
the Government was willing to provide testimony of the threat. It is
not surprising that defense counsel may not have heard the threat in
spite of his location to Gonzalez at the time the threat was made.
Quite likely, Gonzalez had no intent of having anyone hear his threat
other than the Government witness. Furthermore, counsel was more
than likely focused on the trial and the Government's next witness.

Based on the foregoing, we affirm the Appellants' convictions and
sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid in the decisional process.

AFFIRMED

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