1 District Judge for the Southern District of Texas, sitting by

designation.

2 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this opinion should not be published and is not precedent except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. United States Court of Appeals

Fifth Circuit 

### FILED

July 12, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-10710

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUINCY LEVINE

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:03-CR-316-5-A

Before KING, Chief Judge, DAVIS, Circuit Judge, and ROSENTHAL,

District Judge. 1

PER CURIAM: 2

Quincy Levine appeals his conviction and sen tence for

cocaine distribution. Levine argues that the district court

erred by refusing to allow him to withdraw his guilty plea and

by denying him a reduction under the sentencing guidelines for

acceptanc e of responsibility. Levine claims that he pleaded

guilty while represented by counsel who had a conflict of2

interest arising from prior represen tation of a codefendant.

Levine asserts that when he raised this conflict, the court not

only refused to grant the motion to withdraw the plea, but also

punished him by withholding the offense level reduction for

acceptance of responsibility.

We find no actual conflict of interest or other basis to

reverse the district court’s decision to deny Levine’s motion

to withdraw the guilty plea. We further find that the district

court did not err in sentencing Levine. The reasons are

explained below.

I. Factual and Procedural Background

A grand j ury in the Northern District of Texas indicted

Levine and seven others on December 17, 2003, charging Levine

with one count of conspiracy to possess a controlled substance

with the intent to distribute it, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A) & 846 (count one), and one count

of aiding and abetting the possession of a controlled substance

with the intent to distribute it, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (count three). On

December 19, 2003, attorney Ronald Couch was appointed to

represent Levine. On February 9, 2004, attorney Shaun House

entered an ap pearance as Levine’s retained counsel, and the

court grante d House’s motion to substitute. On February 27,

2004, Levine pleaded guilty to count three of the indictment,3 Shed also appealed, arguing that the district court abused its

discretion in denying his motion to withdraw his guilty plea based

in part on his counsel’s conflict of interest. T his court recently

affirmed th e district court’s refusal to set aside Shed’s guilty

plea. U nited States v. Shed

, 2005 WL 1427391, at *1 (5th Cir. June

20, 2005).

3 which charged possession with the intent to distribute and

aiding and abetting.

On May 7, 2004, after the presentence report issued,

Levine filed a pro se “Motion to Excuse Retained Council.” He

argued, among other things, that his (unnamed) c ounsel had a

conflict of interest because he had previously represented a

codefendant, Kevin Shed. 3 In a later filing, Levine alleged

that his wife had actually hired another attorney, Douglas

Greene, to represent him. Levine asserted that Greene told his

wife that House , who shared an office with Greene, would be

designated as Levine’s attorney, bec ause Greene had formerly

represented Shed and the j udge would likely view this as a

conflict. Greene assured Levine’s wife that he would

nonetheless continue to work on the case.

The district court held a hearing on June 2, 2004 at which

Levine, his wife, and House testifie d. The court discharged

both Greene and House, f inding that Greene had been Levine’s

attorney “behind the scenes” and that House had served as the

“front man.” The district court was appropriately critical of4 United State s v. Levine , No. 04-10710, Hearing Transcript

(“Tr.”) Vol. 2, pp. 81–82.

5 740 F.2d 339, 343–44 (5th Cir. 1984).

4 both Greene and House. The court, however, carefully stated

that it had

made no dete r mination whatsoever that this

defendant’s rights have been adversely

affected by the fact that Mr. Greene has

been involved in the d efendant’s legal

representation behind the scenes.

. . . I’m

not making any determination that that in

any way has caused you to be adv e rsely

affected. So don’t think that this is

going to lead necessarily to another result

such as setting aside the plea agreement —

or the plea of guilty, because I have not

made any findings that would cause me to

think that the plea of guilty should be set

aside or that there is an ything

inappropriate about the plea agreement. 4

The court again appo inted attorney Couch to represent

Levine. Couch filed a motion to withdraw Levine’s guilty plea

on June 9, 2004. In a hearing on the motion held on June 10,

2004, the court denied the motion after analyzing each of the

seven factors set out in United States v. Carr

. 5 The court

then proceeded to sentencing.

Although the initial presentence report had recommended a

three-po int reduction in offense level for acceptance of

responsibility, the probation officer had subsequently

withdrawn that recommendation, finding that Levine had

frivolously minimized his role in the conspiracy. The district6 See Cuyler v. Sullivan

, 446 U.S. 335, 349–50, 100 S. Ct. 1708,

64 L. Ed. 2d 333 (1980); United States v. Infante , 404 F.3d 376,

392 (5th Cir. 2005).

7 Infante , 404 F.3d at 391 (emphasis in original).

5 court agreed to the denial of the reduction for acceptance, but

based that decis ion on Levine’s testimony in the June 10

hearing in support of his motion to withdraw his guilty plea.

Levine received a 360-month sentence, in part reflecting career

offender status.

Levine appeals the district court’s denial of his motion

to withdraw his guilty plea an d the refusal to reduce the

offense level for acceptance of responsibility.

II. The Claim of a Conflict of Interest

Levine argues that the court abused its discretion in

denying his motion to withdraw the guilty plea he entered while

his attorneys labored under a conflict of interest. To prevail

on his claim, Levine must show that his attorneys had a

conflict of interest that adversely affe cted their

performance. 6

Courts analyzing allegations of conflicted counsel

typically ask two questions: “(1) whether there was an actual

conflict of interest, as opposed to a merely potential or

hypothetical conflict, and ( 2) whether the actual conflict

adve rsely affected counsel’s representation.” 7 If a conflict

does not adversely affe ct counsel’s performance, no “actual8 Perillo v. Johnson

, 205 F.3d 775, 781 (5th Cir. 2000), citing

Strickland v. Washington

, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067,

80 L. Ed. 2d 674 (1984).

9 Perillo , 205 F.3d at 781–82.

10 Infante , 404 F.3d at 393, citing Perillo , 205 F.3d at 807.

6 conflict” exists. “An ‘actual conflict’ exists when defense

counsel is compelled to compromise his or her duty of loyalty

or zealous advocacy to the accused by choosing between or

blending the divergent or competing interests of a former or

curr ent client.” 8 If a defendant “establishes an actual

conflict that adversely affected counsel’s performance,

prejudic e is presumed without any further inquiry into the

effect of the actual conflict on the outcome of the defendant’s

trial.” 9

Levine has not shown an actual conflict of interest.

Levine has not identified how Greene’s prior representation of

Shed adversely affected Greene’s or House’s representation of

Levine. Specifically, Levine has not identified any “plausible

alternative defense strategy that could have been pursued, but

was not, beca use of the actual conflict.” 1 0 To the contrary,

a t oral argument, counsel for Levine acknowledged th at the

defense strategy Levine had followed

— early and extensive

cooperation followed by a guilty plea

— would have be en the

same had Levine retained conflict-free counsel from the outset.11 United States v. Angeles-Mendoza

, 407 F.3d 742, 753 (5th Cir.

2005); United States v. Solis , 299 F.3d 420, 458 (5th Cir. 2002).

12 The district court stated during the sentencing hearing:

I’m convinced the defendant hasn’t accepted

responsibility from the testimony he gave from

the witness stand today . So I’m denying

acceptance of responsibility, but I’m doing it

because of the defendant’s testimony today

7 Without a specific showing of an adverse effect, no actual

conflict exists. In the absence of an actual conflict, and

because the district court properly considered the C arr

factors, we reject this ground for appeal.

III. Acceptance of Responsibility

Levine also appeals the district court’s denial of a

reduction in the of fense level for timely acceptance of

responsibility in determining the guideline sentence. We

review the district court’s decision to reduce the sentence for

acceptance of responsibility “with even more deference than is

due under a clearly erroneous standard because the sentencing

judge is in a unique position to assess the defendant’s

acceptance of responsibility and true remorse.” 11

Levine asserts, without ar gument or support, that the

district court denied the reduction as punishment for bringing

h is counsels’ conflict to the court’s attention. Levine’s

argument does not take i nto account or explain the testimony

he gave that led the district court to withhold the adjustment

for acceptance of responsibility. 12 Given the level ofthat he’s denyi ng that he’s guilty after he

clearly has previously admitted that he’s

guilty.

Tr. Vol. 3, p. 50.

8 deference this court affords to a district court’s

determination of whether a defendant should be credited for

accepting responsibility, we conclude that the court’s

sentencing decision provides no basis for reversal.

IV. Conclusion

The conviction and sentence are affirmed.