NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JUAN CARLOS JUAREZ

- TORRES,

Defendant

- Appellant. No. 22

- 10165
D.C. No. 2:15

- cr - 01211

- SPL

- 4

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding Argued and Submitted September 12, 2023

Phoenix, Arizona Before: GOULD, HURWITZ, and BUMATAY, Circuit Judges. Juan Carlos Juarez

- Torres appeals from his conviction s and sentence on various federal drug trafficking offenses , imposed after a guilty plea

. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm.
1. J u arez - Torres first contends his convictions should be reversed because his counsel previous ly represented a person interviewed by federal agents about J uarez -

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

SEP 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Torres. T he district court concluded that Juarez

- Torres ’ s attorney was potentially conflicted by the former representation and discussed the matter with Juarez

- Torres

. The district court then asked whether Juarez

- Torres approved of his lawyer staying on the case and Juarez

- Torres confirmed he wanted his attorney to continue to represent him

. On appeal, Juarez

- Torres argues that he did not make a “ voluntary, knowing, and intelligent waiver ” of his right to conflict

- free counsel. Garcia v. Bunnell , 33 F.3d 1193, 1195 (9th Cir. 1994)

. We review the district court ’ s finding that the defendant intelligently waived his right to conflict

- free counsel de novo. United States v. Christakis , 238 F.3d 1164, 1168 (9th Cir. 2001). Even assuming that
Juarez

- Torres ’ s waiver of the conflict was insufficient, however, he has no t demonstrated that the alleged conflict “ adversely affect ed [ his] counsel ’ s performance

. ” United States v. Walter

- Eze , 869 F.3d 891, 901 (9th Cir. 2017) (simplified)

. 1 To show an adverse effect , Juarez

- Torres cites counsel ’ s fail ure to challenge a sentencing enhancement. But the record shows that counsel expressly decided to argue that Juarez

- Torres had a relatively minor role in the drug trafficking organization , rather than challenge any particular enhancement

. That strategy w as successful

. T he court varied downward significantly from the Guidelines sentence

1 Although Walter

- Eze involved conflicts involving concurrent representation , we assume that its standard applies here. See 869 F.3d at 900

.3

that would have been applicable without the role enhancement. And nothing in the record shows that his counsel ’ s decision to compare him to his superiors in the conspirac y (rather than lower

- level members allegedly like his former client) was based on divided loyalties rather than strategy. See United States v. Wells , 394 F.3d 725, 735 (9th Cir. 2005) ( noting that speculative alleged failings are insufficient to establish an adverse effect)

. Second, Juarez

- Torres argues that his attorney failed to speak with the former client because of the alleged conflict

. But the record shows that Juarez

- Torres ’ s c ounsel attempted to contact the former client and was unable
to reach her

. Juarez

- Torres provides no evidence indicating that the lack of contact was due to divided loyalties.
2. Juarez

- Torres next argues that the district court erred by conducting his change

- of

- plea hearing in a video conference

. The district court could conduct a felony guilty plea by video conference if: (1) it found specific reasons that the plea could not be further delayed without serious harm to the interests of justice and (2) the defendant consented after consultation with counsel

. Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116

- 136, § 15002, 134 Stat. 281, 528

– 29 (2020); D. Ariz. Gen

. Order 2 1

- 18 (Sept. 17, 2021)

. Because Juarez

- Torres did not

o bject in the district court, we review for plain error. United States v. Olano , 507 U.S. 725, 731

– 33 (1993); Fed. R. Crim. P. 52(b). Both requiremen ts were satisfied . First, the court concluded that “ there was a4

need to protect the public, ” and that without the hearing the defendant would suffer

“ serious harm. ” Amid the COVID

- 19 pandemic, it was not a clear or obvious error for the district court to find that those harms were specific and serious enough to counsel against further delay

. Second, Juarez

- Torres orally consented to the video
appearance , and his attorney confirmed that they had discussed appearing by video

. 3. Finally, Juarez

- Torres argues that the district court improperly applied the sentencing enhancement for bribery of a law enforcement officer under USSG § 2D1.1(b)(11)

. Assuming that Juarez

- Torres merely forfeited (rather than waive d) this argument, we review for plain error. Olano , 507 U.S. at 731

– 33; Fed. R. Crim. P. 52(b). Even though “ we possess the discretion to refrain from applying the default plain error standard of review in certain circumstances , ” we decline to exercise that discretion in this case. United States v. Gonzalez

- Aparicio , 663 F.3d 419, 426 (9th Cir. 2011) ( simplified). The district court did not commit clear or obvious error in applying § 2D1.1(b)(11) here , even if Juarez

- Torres brib ed a foreign law enforcement officer

. On its face, § 2D1.1(b)(11) applies to the bribery of “ a law enforcement officer

. ” Thus, § 2D1.1(b)(11) is not facially limited to bribery of d omestic officers. While this enhancement was enacted in response to the Fair Sentencing Act of 2010, Pub.
L. No. 111

– 220 , § 6 , 124 Stat. 2373 , which refer s only to bribery of a “ Federal, State, or local law enforcement official , ” the Sentencing Commission has discretion to5

adopt guidelines so long as they are not inconsistent with Congressional directives. See United States v. LaBonte , 520 U.S. 751, 757 (1997). The Sentencing Commission ’ s choice to forgo Congress ’ s “ F ederal , S tate , or local ” language is not plainly “ at odd s, ” id. , with the statute

. So the district court ’ s application of the enhancement was not clearly or obviously wrong.
AFFIRMED
.