                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 16 2000
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                     No. 00-2001
          v.                                               D.N.M.
 MARIO ISRAEL GASTELUM-                      (D.C. Nos. CIV-97-1150-JC/DJS &
 MURGUIA.                                             CR-93-654-JB)

               Defendant-Appellant.


                            ORDER AND JUDGMENT         *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.         **




      Mario Gastelum-Murguia, Jr., seeks to appeal the district court’s order

denying his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28

U.S.C. § 2255. For the reasons set forth below, we deny Mr. Gastelum’s


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
application for a certificate of appealability and dismiss this appeal.



                                   I. BACKGROUND

       Mr. Gastelum was convicted after a jury trial of possessing more than five

kilograms of cocaine with the intent to distribute. The district court increased his

offense level on the ground that Mr. Gastelum was a leader or organizer of the

offense and sentenced him to 188 months’ imprisonment, followed by a five-year

term of supervised release. In his § 2255 motion, Mr. Gastelum alleged that his

trial counsel, David Serna, provided ineffective assistance because he had an

actual conflict of interest.   1



       The evidence presented at trial indicated that Mr. Gastelum and two

codefendants, Vincente Hernandez-Vargas and Adolfo Alvarez, were arrested in

Albuquerque, New Mexico, on an Amtrak train traveling from Los Angeles to

Chicago. The arrests occurred after a drug-sniffing dog alerted to suitcases

stored near their seats. Upon opening the suitcases, Drug Enforcement

Administration agents and Albuquerque police officers discovered fifteen



       1
         Aldolfo Alvarez, Mr. Gastelum’s codefendant, has advanced a similar
argument. The district court denied Mr. Alvarez’s § 2254 petition, and we
affirmed that decision on appeal. We concluded that Mr. Alvarez had failed to
“demonstrate that the alleged conflicts of interest had any adverse effect on
counsel’s performance.” United States v. Alvarez , 137 F.3d 1249, 1252 (10th
Cir. 1998).

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kilograms of cocaine in each suitcase. After the agents arrested the three men,

Mr. Hernandez provided a statement that Mr. Gastelum had hired him to make the

trip.

        Mr. Gastelum was initially represented by the Federal Public Defender’s

office. Before trial, Timothy Padilla, a New Mexico attorney, received a request

from a Los Angeles attorney to visit the three defendants in jail to determine

whether he could represent them. Subsequently, the California attorney retained

Mr. Padilla to represent any one of the three defendants and to obtain counsel for

the others. Mr. Padilla never learned the source of the funds to pay for the

defense. He selected Mr. Serna to represent Mr. Gastelum and Edward

Bustamonte to represent Mr. Alvarez. Like Mr. Padilla, Mr. Serna did not know

the source of the funds provided for Mr. Gastelum’s defense.

        At the evidentiary hearing on the § 2255 motion, Mr. Serna testified that,

prior to trial, Mr. Gastelum has asserted his innocence and stated that he did not

want to pursue any plea negotiations. According to Mr. Serna, Mr. Gastelum also

provided an implausible story concerning the purpose of the train trip. Based on

that story, Mr. Serna advised Mr. Gastelum not to testify at trial.

        At the § 2255 hearing, Mr. Gastelum testified that, prior to trial, he had

falsely informed Mr. Serna about the purpose of the train trip. He stated that Mr.

Hernandez had recruited him to carry one of the suitcases.


                                            3
                                   II. DISCUSSION

      In the district court proceedings, Mr. Gastelum asserted six grounds for his

contention that Mr. Serna provided ineffective assistance of counsel: (1) failure

to object to prejudicial evidence at trial; (2) failure to request a severance; (3)

failure to advise him of the consequences of going to trial; (4) failure to advance

certain arguments and evidence at trial; (5) failure to allow him to testify on his

on behalf; and (6) failure to contest the government’s assertions at sentencing. In

his appellate brief, he advances only the final argument, arguing that Mr. Serna

should have objected to the government’s request for an increase in the offense

level on the ground that Mr. Gastelum was a leader or organizer of the offense.

He maintains that Mr. Serna’s failure to contest the government’s assertion was

caused by the conflict of interest resulting from the fact that Mr. Serna was hired

by Mr. Padilla.

      The Supreme Court has recognized that there are “inherent dangers that

arise when a criminal defendant is represented by a lawyer hired and paid by a

third party.” Wood v. Georgia, 450 U.S. 261, 268-69 (1981). In order to

establish an ineffective assistance of counsel claim, a defendant must demonstrate

that the third party’s participation created an actual conflict of interest that

adversely affected the lawyer’s performance. See United States v. Alvarez , 137


                                            4
F.3d 1249, 1251 (10th Cir. 1998)   (citing United States v. Bowie, 892 F.2d 1494,

1500 (10th Cir. 1990)). An actual conflict of interest arises if the third party’s

participation forces the defendant counsel “to make choices advancing other

interests to the detriment of his client. Without a showing of inconsistent

interests, any alleged conflict remains hypothetical, and does not constitute

ineffective assistance.” Id. at 1252 (citations omitted).

      Upon review of the § 2255 hearing, we see no evidence that Mr. Serna was

forced to advance a third party’s interests by failing to challenge the leader-

organizer enhancement at sentencing. Most importantly, there is no indication in

Mr. Serna’s testimony that he considered any such third-party interests. He

explained that he did not know the source of the funds provided for Mr.

Gastelum’s defense, and there is no indication that the codefendants, their

attorneys, or any other person instructed Mr. Serna on how to conduct the

defense. Moreover, it was not until long after the sentencing proceedings that Mr.

Gastelum informed Mr. Serna that it was Mr. Hernandez who had hired him to

make the train trip from Los Angeles to Chicago. Thus, Mr. Gastelum has not

identified any evidence available at the time of sentencing that Mr. Serna could

have presented to contest the leader-organizer enhancement. Indeed, at that point

in the proceedings, Mr. Hernandez’s post-arrest statement that Mr. Gastelum had

hired him for the trip provided support for the government’s requested


                                           5
enhancement.



                                III. CONCLUSION

      Because Mr. Gastelum has failed to support his contention that his counsel

had an actual conflict of interest, we DENY his application for a certificate of

appealability and DISMISS this appeal.



                                              Entered for the Court,



                                              Robert H. Henry
                                              United States Circuit Judge




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