                                                        NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                          ________

                              No. 13-1182
                              _________

                   UNITED STATES OF AMERICA

                                   v.

                         RONALD BASSETT,
                                      Appellant
                             ________

             On Appeal from the United States District Court
                      for the District of New Jersey
                      (D.C. No. 2-11-cr-00447-003)
              District Judge: Honorable William H. Walls
                                 _______

               Submitted Under Third Circuit LAR 34.1(a)
                          December 12, 2013

Before: MCKEE, CHIEF JUDGE, FUENTES, and SLOVITER, Circuit Judges

                        (Filed: January 21, 2014)
                            ______________

                             OPINION
                           _______________
SLOVITER, Circuit Judge.


       Ronald Bassett (Bassett) appeals the District Court’s sentence. Because Bassett

has failed to demonstrate an actual conflict of interest that adversely affected his trial

counsel’s performance, and the District Court did not commit clear error in concluding

that Bassett intended to obstruct justice or in denying a downward adjustment for

acceptance of responsibility, we will affirm the judgment of the District Court.1

       Bassett was involved in a heroin-trafficking conspiracy which operated in New

Jersey, Pennsylvania, and New York, and was arrested on November 5, 2010. On June

23, 2011, a federal grand jury returned a two-count indictment against Bassett and his

codefendants. The indictment charged that from April 1, 2009 through April 5, 2010, the

defendants conspired to distribute and possessed with intent to distribute one kilogram or

more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i) and 21 U.S.C.

§ 846 (Count I); and distributed and possessed with intent to distribute one kilogram or

more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(I) and 18 U.S.C.

§ 2 (Count II). Bassett pled guilty to Count I, and the Government dismissed Count II.

On June 22, 2012, Bassett and his counsel,2 had a presentence interview with an officer

of the United States Probation Office (“Probation”).

       At sentencing on January 9, 2013, the District Court applied an enhancement for

obstruction of justice and denied a reduction for acceptance of responsibility. Bassett


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has
jurisdiction pursuant to 18 U.S.C. § 3742(a).
2
  Bassett has retained different counsel on appeal.
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timely appeals. Bassett argues that his sentence should be vacated because (1) he

received ineffective assistance of counsel; (2) his counsel failed to withdraw from

representation, and the District Court failed to disqualify his counsel, when it became

obvious that counsel ought to be a witness for Bassett at sentencing; and (3) the District

Court improperly imposed a two-level enhancement for obstruction of justice and denied

Bassett’s request for a downward adjustment for acceptance of responsibility.

       We decline to address Bassett’s ineffective assistance of counsel claim on direct

appeal because such a claim must be presented in a motion under 28 U.S.C. § 2255. This

court has previously held that “an actual conflict of interest claim, like other types of

ineffective assistance of counsel claims, is generally not cognizable in the first instance

on direct appeal.” United States v. Morena, 547 F.3d 191, 198 (3d Cir. 2008). Rather,

“[s]uch claims are better reserved for 28 U.S.C. § 2255 actions” which allow for factual

development of the claim. Id.; see also Gov't of Virgin Islands v. Zepp, 748 F.2d 125,

133 (3d Cir. 1984). Ineffective assistance of counsel claims based on a conflict of

interest are cognizable on direct appeal “[o]nly in the rare case where facts showing an

actual conflict of interest are clear on the record, and no waiver of the right to conflict-

free counsel was evident.” Morena, 547 F.3d at 198 (citing Zepp, 748 F.2d at 133-34).

However, “if there is any ambiguity on the record whether an actual conflict exists, this

Court will abstain from addressing the claim on direct appeal.” Id.

       We find that the record is ambiguous as to whether there was a conflict. The

Presentence Report (PSR) states that at the presentence interview, “[t]he defendant and

counsel explained that there were a number of assets which were part of the parental

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estate, which have not been disposed of, and remain in probate.” PSR at ¶ 138. Bassett’s

November 14, 2012 presentence submission states that Basset, who had only an

“elementary understanding of the legal terminology” of estates and trusts, made the

statement. App. at 49. A written submission dated December 10, 2012, states that

“[d]uring the interview, Mr. Bassett and counsel explained that various assets remained

‘in probate.’” App. at 193. At the time of the interview, Bassett had in fact already

inherited his mother’s property. At sentencing, Bassett’s attorney asserted that he—

rather than Bassett—had characterized Bassett’s mother’s estate as in probate. In

response, the District Court asked counsel if he “want[ed] to go to jail” with his client

and cautioned counsel not to “go down that path.” App. at 287. Counsel responded that

he “[didn’t] want to” and instead continued to argue that the term “in probate” was a term

of art used by estate lawyers that a lay person would not understand. App. at 287-89.

       The conversation between defense counsel and the District Court at sentencing

could be read to indicate that a conflict had developed between Bassett and his counsel.

However, in light of counsel’s previous submissions to the District Court, defense

counsel’s statements at sentencing could also be seen as a last minute ill-advised attempt

to assume blame. Furthermore, it is not sufficiently clear what the District Court meant

when it asked counsel if he “want[ed] to go to jail” with his client for this court to find

that a conflict existed. Thus, we find that the record is ambiguous as to whether there

was a conflict, and we will decline to address this claim on direct appeal.

       Bassett next claims that his sentence should be vacated because counsel failed to

withdraw from the representation, and the District Court failed to disqualify counsel,

                                              4
when it became obvious that counsel ought to be a witness for Bassett at sentencing.

However, Bassett’s sentence cannot be vacated because of alleged ethical breaches by his

counsel. Rather, as discussed supra, Bassett must demonstrate that an actual conflict of

interest adversely affected his counsel’s performance. See Nix v. Whiteside, 475 U.S.

157, 165 (1986) (“[B]reach of an ethical standard does not necessarily make out a denial

of the Sixth Amendment guarantee of assistance of counsel”); see also Mickens v. Taylor,

535 U.S. 162, 174 (2002).

       Finally, Bassett challenges the District Court’s imposition of a two-level

enhancement for obstruction of justice and denial of Bassett’s request for a downward

adjustment for acceptance of responsibility. This court reviews a district court’s factual

findings relevant to the Guidelines for clear error. United States v. West, 643 F.3d 102,

105 (3d Cir. 2011); United States v. DeLeon-Rodriguez, 70 F.3d 764, 767 (3d Cir. 1995).

       We find that the District Court did not commit clear error in concluding that

Bassett willfully withheld material information about his financial status and did not

accept responsibility. Bassett contends that the District Court’s determination is in error

because it rests on a disputed issue of fact: whether it was Bassett himself or his counsel

who made the comment about Bassett’s mother’s assets being “in probate.” While that

comment elicited a strong reaction from the District Court at sentencing, it was not the

sole or even major piece of evidence on which the District Court relied.

       The District Court observed that before the PSR became final, Bassett submitted a

monthly cash flow statement which listed no income or expenses and failed to submit the

required personal financial statement. Yet, when Bassett finally submitted his personal

                                             5
financial statement, months after the PSR became final and by which time the

Government and Probation had independently identified additional assets, the statement

demonstrated that Bassett had substantial interests in properties and debts. The District

Court also observed that at the time of the presentence interview Bassett had in fact

inherited as the sole living survivor all the real and personal property of his mother, was a

two-thirds owner in real estate valued at $223,000, and owned a tow truck that he failed

to disclose. Finally, the District Court noted the recorded jail house conversations in

which Bassett discussed commercial buildings he owned, and the recorded jail house

conversation in which he said that he had a plan to take care of himself and his business

partner for the rest of their lives. In sum, there exists extensive factual support for the

District Court’s conclusion that Bassett intended to obstruct justice by concealing his

assets and for the District Court’s denial of a downward adjustment for acceptance of

responsibility. Because the District Court did not commit clear error, we will affirm.




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