United States v. McAfee ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5622
MARVIN LEE MCAFEE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-92-564-6)
Submitted: November 30, 1995
Decided: August 6, 1996
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Preston Strom, Jr., United States
Attorney, David C. Stephens, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Marvin Lee McAfee noted a pro se appeal of his conviction on his
guilty plea for his role in an extensive conspiracy to distribute
cocaine. McAfee's court-appointed appellate counsel initially filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967). After our
independent review of the record, this court ordered counsel to resub-
mit a brief in compliance with Anders and Penson v. Ohio, 488 U.S.
75 (1988), paying special attention to the fact that McAfee's retained
trial counsel also represented a co-defendant. The co-defendant was
named in the same indictment and was convicted, on a guilty plea for
a smaller role in the conspiracy. In response to our order, counsel
filed a superseding brief arguing that McAfee had been denied effec-
tive assistance of counsel because the record did not reflect that his
waiver of conflict-free counsel was knowing and intelligent. Counsel
also argued that the district court erred in failing to conduct a Fed. R.
Crim. P. 44(c) inquiry when informed of the joint representation.
Because McAfee has failed to establish the cornerstone of each claim,
namely that trial counsel had an actual conflict of interest, we affirm.
McAfee initially attacks the voluntariness of the waiver he signed
regarding trial counsel's multiple representation. Because the record
contains only the waiver form itself, and no further inquiry regarding
the waiver, McAfee argues that it is impossible to determine whether
he "knowingly, intelligently, and intentionally" waived his right to
conflict-free counsel. Without such an inquiry on the record, McAfee
argues that his Sixth Amendment right to effective assistance of coun-
sel has potentially been compromised and remand is therefore neces-
sary. Not only is this argument unsupported by caselaw, it also begs
the question. If McAfee's counsel did not have a conflict of interest,
it is virtually immaterial whether McAfee's waiver was valid. In the
absence of a contemporaneous objection, to establish a violation of
the Sixth Amendment a defendant "must demonstrate that an actual
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conflict of interest adversely affected his lawyer's performance."
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
To protect the interest in conflict-free representation, Fed. R. Crim.
P. 44(c) requires the district court to "promptly inquire with respect
to such joint representation and [ ] personally advise each defendant
of the right to the effective assistance of counsel, including separate
representation." Fed. R. Crim. P. 44(c) (emphasis added). Here, the
district court failed to inquire into the potential for conflict of interest
once counsel informed the court that there was a waiver on file. At
no time did McAfee or his co-defendant object to this dual representa-
tion. Notwithstanding Rule 44(c), without such an objection, the trial
court may assume that there is no conflict, "unless the court knows
or reasonably should know that a particular conflict exists." United
States v. Akinseye, 802 F.2d 740, 744 (4th Cir. 1986) (citation omit-
ted), cert. denied, 482 U.S. 916 (1987).
Conversely, "[i]f the court is aware, or should be aware, of a partic-
ular conflict, it should conduct a sua sponte inquiry into its exis-
tence." Id. (emphasis in original). However, this court has held that
the district court's failure to hold a Rule 44(c) hearing where there
was dual representation does not create a per se right to reversal.
United States v. Arias, 678 F.2d 1202, 1205 (4th Cir.), cert. denied,
459 U.S. 910 (1982). Rather, on appeal, this court must initially
inquire as to whether there was an actual conflict. See United States
v. Gilliam, 975 F.2d 1050, 1054 (4th Cir. 1992) (finding an actual
conflict requiring a remand for a Rule 44(c) hearing).
Although he had identified two potential sources of conflict,
McAfee has failed to show any actual conflict arising from trial coun-
sel's dual representation. Our review of the record reveals no conflict.
Without an actual conflict of interest on the part of McAfee's trial
counsel, the mere fact of the multiple representation is no ground to
disturb the otherwise valid guilty plea and sentence. Accordingly, we
affirm McAfee's conviction and sentence.
We note that the district court's judgment reflects a conviction for
a violation of 21 U.S.C.A. § 846 (West Supp. 1995), while the indict-
ment, plea agreement, plea colloquy, and presentence investigation
report all refer to 21 U.S.C.A. § 841 (West 1981 & Supp. 1995). Both
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parties urge this court to remand the case for the purpose of correcting
a typographical mistake in the presentence report. To the extent that
there is a clerical error in the district court's"judgments, orders or
other parts of the record," the more appropriate vehicle for its correc-
tion is a motion in the district court pursuant to Fed. R. Crim. P. 36.
Consequently, we decline to remand the case.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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