United States v. Green ( 1999 )


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  •                  UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
                           ___________________
    
                                No. 99-40342
                              Summary Calendar
                             __________________
    
                        UNITED STATES OF AMERICA,
    
                                                    Plaintiff-Appellee,
    
                                   versus
    
                              VANCHIESE GREEN,
    
                                                 Defendant-Appellant.
    ________________________________________________________________
    
               Appeal from the United States District Court
                     for the Eastern District of Texas
                               (1:98-CR-98-1)
    _________________________________________________________________
    
                              November 5, 1999
    
    Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
    
    PER CURIAM:*
    
         In contesting his 151—month sentence for possession of cocaine
    
    with intent to distribute, Vanchiese Green presents three issues.
    
    Each is without merit.
    
         Green was ordered to appear in district court on 23 November
    
    1998; he failed to do so; an arrest warrant was issued; he
    
    surrendered two days later; and he subsequently pleaded guilty.
    
    The presentence report (PSR) recommended that his offense level be
    
    increased two levels for obstruction of justice (for failing to
    
    appear); and that he not receive an acceptance of responsibility
    
    
    
         *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    adjustment, because of the failure to appear and for testing
    
    positive for drug use twice while on bond.
    
         Two days before sentencing, Green’s counsel moved to withdraw,
    
    based on Green “wish[ing] to present a defense to the enhancement
    
    ... [for] failing to appear which would place ... counsel in direct
    
    conflict” with Green. The motion, which did not indicate precisely
    
    how a conflict would be created, was denied.             At sentencing, the
    
    enhancement    objection   was    overruled;    the     downward   adjustment
    
    request, rejected.
    
         Green contends that the court erred in denying the withdrawal
    
    motion.   The denial is reviewed for abuse of discretion.             United
    
    States v. Medina, 
    161 F.3d 867
    , 870 (5th Cir. 1998), cert. denied,
    
    ___ U.S.___, 
    119 S. Ct. 1344
     (1999).
    
          Green maintains that a conflict existed because he and his
    
    attorney had different recollections about what date Green was told
    
    to appear.    “A conflict exists when defense counsel places himself
    
    in a position conducive to divided loyalties.”             United States v.
    
    Carpenter, 
    769 F.2d 258
    , 263 (5th Cir. 1985).             In Carpenter, the
    
    conflict was that defendant’s attorney had, as assistant district
    
    attorney, negotiated a plea agreement with one of the prosecution’s
    
    witnesses.    Id. at 262.        Carpenter’s counsel vigorously cross-
    
    examined this witness, notwithstanding the claimed conflict.             Id.
    
    at 262.   We held that counsel had not been placed in a position
    
    conducive to divided loyalties.        Id. at 263.
    
         Similarly,    Green’s   counsel       vigorously    presented   Green’s
    
    defense that he had unwittingly missed his court date.               Counsel
    
    
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    presented Green’s testimony, and the corroborative testimony of his
    
    mother and girlfriend, that Green received misinformation about his
    
    court date, through his girlfriend, from counsel’s office. Counsel
    
    did not contradict this testimony, even though she had a different
    
    recollection.    Therefore, as in Carpenter, there is no conflict —
    
    counsel   was   not   placed    in   a    position    conducive   to   divided
    
    loyalties.
    
         Additionally, “[w]hen filing a motion to withdraw, an attorney
    
    should provide a detailed explanation of the reasons why [she]
    
    believes that ‘good cause’ exists for [her] to withdraw”.               United
    
    States v. Wild, 
    92 F.3d 304
    , 307 (5th Cir.) (citation omitted),
    
    cert. denied, 
    519 U.S. 1018
     (1996).             The motion did not meet this
    
    requirement,    asserting   merely       that   presenting   Green’s   defense
    
    “would place [her] in direct conflict” with him.             Accordingly, the
    
    court did not abuse its discretion in denying the withdrawal
    
    motion.
    
         Next, Green challenges the finding that he obstructed justice
    
    by failing to appear.          The finding is reviewed only for clear
    
    error.    E.g., United States v. Cisneros, 
    112 F.3d 1272
    , 1279 (5th
    
    Cir. 1997).     This review is even more deferential when, as here,
    
    the finding rests, at least in part, on credibility determinations.
    
    United States v. Powers, 
    168 F.3d 741
    , 752-53 (5th Cir.), cert.
    
    denied, ___ U.S. ___, 
    1999 WL 715773
     (12 Oct. 1999).
    
         The court found that Green was not credible because, when
    
    asked the number of times a bench warrant had issued for him, Green
    
    was not truthful.     He testified that this was the second time; the
    
    
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    PSR indicated otherwise.        Accordingly, the court did not clearly
    
    err.
    
           Finally, Green claims that the court erred in denying the
    
    acceptance of responsibility adjustment.         The finding is upheld
    
    unless it was “without foundation” — a standard of review even more
    
    deferential than that for clear error.          E.g., United States v.
    
    Anderson, 
    174 F.3d 515
    , 525 (5th Cir. 1999).         Obviously, the denial
    
    because of drug use while on bond is not reversible error.               See
    
    United States v. Flucas, 
    99 F.3d 177
    , 180 (5th Cir. 1996), cert.
    
    denied, 
    519 U.S. 1156
     (1997); United States v. Rickett, 
    89 F.3d 224
    , 226-27 (5th Cir.), cert. denied, 
    519 U.S. 1000
     (1996); United
    
    States    v.   Watkins,   
    911 F.2d 983
    ,   985     (5th   Cir.   1990).
    
    Additionally, Green’s failure to appear is sufficient support for
    
    the finding.    United States v. Lujan-Sauceda, 
    187 F.3d 451
    , (5th
    
    Cir. 1999).
    
                                                                  AFFIRMED
    
    
    
    
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