UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-5006

MIGUEL ANGEL LARA ALVAREZ,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Senior District Judge.

(CR-01-130-FO)

Submitted: April 30, 2004

Decided: May 19, 2004

Before MICHAEL and SHEDD, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam opinion. 

COUNSEL

Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte,

North Carolina, for Appellant. Frank D. Whitney, United States

Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United

States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Miguel Angel Lara Alvarez pled guilty to participating in a conspiracy to distribute and possess with intent to distribute at least 500

grams of cocaine and at least five grams of cocaine base (crack), 21

U.S.C. § 846 (2000), and to possession of a firearm in furtherance of

a drug conspiracy, 18 U.S.C. §§ 924(c), 2 (2000). He was sentenced

to a term of 151 months for the conspiracy count and a consecutive

sixty months for the § 924(c) count. Alvarez seeks to appeal his sentence, alleging that the district court’s sentencing decisions were

affected by prosecutorial misconduct, that the district court erred in

denying him an adjustment for acceptance of responsibility and a

downward departure for aberrant behavior, U.S. Sentencing Guidelines Manual §§ 3E1.1, 5K2.20, p.s. (2001), and that the district court

erred in sentencing him at the high end of the guideline range. We

affirm in part and dismiss in part. 

Alvarez waived his right to appeal his sentence on any grounds

except an upward departure, prosecutorial misconduct, or ineffective

assistance of counsel. A defendant may waive the right to appeal if

that waiver is a knowing and intelligent decision to forgo the right to

appeal. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th

Cir. 1995). Generally, if the district court fully questions a defendant

regarding the waiver of his right to appeal during a Fed. R. Crim. P.

11 colloquy, the waiver is both valid and enforceable. United States

v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991); United States v.

Wiggins, 905 F.2d 51, 53 54 (4th Cir. 1990). The waiver provision

does not prevent Alvarez from challenging his sentence based on his

claim of prosecutorial misconduct. In addition, because the joint

appendix does not contain a transcript of the guilty plea hearing and

neither Alvarez nor the government states that the district court

addressed the waiver during the Rule 11 colloquy, we are unable to

determine whether Alvarez’ waiver is enforceable as to the remaining

issues. Therefore, we will address all the issues on the merits. 

2 UNITED STATES v. ALVAREZ
Alvarez and three co-defendants were arrested on September 28,

2001, during a controlled buy of three kilograms of cocaine at codefendant Jose Meza’s store in Robeson County, North Carolina.

Alvarez was the person who brought the cocaine to the store. The

investigating agents seized a total of 2981.5 grams of cocaine, 25.7

grams of crack, and three firearms from the store and the vehicles

used by the conspirators. 

In March 2002, the government interviewed Aaron Godwin, who

was in custody on unrelated drug charges, and who shared a jail cell

with Alvarez for a time. Godwin told investigators that his own supplier, Pammy Gail Cummings, obtained her cocaine from Alvarez. He

said that, over a twelve-week period, Alvarez supplied Cummings and

her son with a total of 180 kilograms of cocaine. Godwin also stated

that Alvarez had $500,000 stored at Cummings’ residence and that

Cummings used some of this money to hire Alvarez’ attorney, Irving

Joyner. Based on Godwin’s information, the probation officer revised

Alvarez’ presentence report in May 2002 to include the 180 kilograms

of cocaine as relevant conduct. 

Joyner represented Cummings in early May at a detention hearing

following her arrest on federal firearms charges. On May 14, 2002,

the government moved to continue Alvarez’ sentencing on the ground

that Joyner had a potential conflict of interest. At a hearing on May

15, Joyner denied any conflict of interest and said both Alvarez and

Cummings had denied the allegations made by Godwin. He also said

that he had been hired and paid by Alvarez’ family. He submitted a

waiver form Alvarez had signed. The district court continued sentencing and invited the government to file a motion to disqualify Joyner.

On July 31, 2002, although Joyner had by then withdrawn from representing Cummings, the government moved to disqualify Joyner based

on his representation of both Alvarez and Cummings and because of

uncertainty about the source of the funds used to pay Joyner. The

government also informed the court that Alvarez had failed a polygraph examination, showing deception on the two relevant questions:

(1) whether he ever had any narcotics-related relationship with Cummings, and (2) whether Cummings procured his legal representation,

either directly or indirectly. 

At a hearing on August 5, 2002, the district court addressed the

government’s motion to disqualify Joyner. Pammy Gail Cummings

UNITED STATES v. ALVAREZ 3
testified that neither she nor her son had a drug relationship with

Alvarez. She denied giving his family money to pay his attorney. She

also said that Alvarez did not keep any money at her house. She said

she had met Aaron Godwin, but that neither she nor her son sold

cocaine to him, and that he had never been to her house or her store.

Because both Alvarez and Cummings had denied under oath that they

had a narcotics relationship and that Cummings had supplied the

money for Alvarez’ defense attorney, the district court found that no

conflict of interest was apparent. 

At Alvarez’ sentencing in December 2002, Godwin testified that he

bought cocaine from Cummings and saw Alvarez deliver ten to fifteen kilograms of cocaine to Cummings’ house three or four times.

Under questioning by the court, Godwin testified that Alvarez delivered cocaine to Cummings every week or two weeks. Once the

cocaine was wrapped in plastic on a pallet of merchandise for Cummings’ store and, on three or four occasions, Alvarez brought ten

"mud buckets" each containing several kilograms of cocaine. Under

cross-examination, Godwin said he helped Cummings cut up and

weigh the cocaine, but admitted that he might not have mentioned

these kilograms in his prior statement to authorities and that they were

not included in his own relevant conduct. He denied reading Alvarez’

presentence report while they were confined together. 

Alvarez testified that he did not know Cummings or store money

at her house and had never seen Godwin until they were confined

together after his arrest. He denied delivering cocaine to Cummings

and said the only cocaine delivery he ever made was the one that

resulted in his arrest. Under cross-examination, he admitted that he

might have seen Cummings at the garage where he worked. He

repeated the assertions he made during the polygraph test that he had

no narcotics-related dealings with Cummings and did not receive

money from her for his legal defense. 

Alvarez’ attorney then introduced four affidavits from inmates who

had been confined in the New Hanover Jail with him and Godwin, all

of whom stated that Godwin had secretly read Alvarez’ presentence

report and made notes on the information in it. Curtis Quinn and

Terry Highsmith also stated that Godwin said he intended to implicate

Alvarez in drug dealing to reduce his own sentence. The government

4 UNITED STATES v. ALVAREZ
submitted a later letter from Terry Highsmith stating that what he said

in his affidavit was true but that he had since heard that Aaron Godwin bought cocaine from Miguel Alvarez’ organization through Cummings. He said he thought that Alvarez had lied to everyone who

signed an affidavit on his behalf, or at least had not told the whole

truth. 

The district court decided that Alvarez’ testimony in combination

with the affidavits cast doubt on Godwin’s motives. The court therefore sustained Alvarez’ objections to inclusion of the 180 kilograms

of cocaine Godwin ascribed to him. The court found the offense level

to be 32, and declined to give Alvarez an adjustment for acceptance

of responsibility, which resulted in a guideline range of 121-151

months. Although Alvarez had indicated in his objections to the presentence report that he would seek a minor role adjustment and a

downward departure for aberrant behavior, he did not request a downward departure or a mitigating role adjustment in a written motion or

offer any argument on these issues at the sentencing hearing despite

the district court’s invitation to do so. The court imposed a sentence

of 151 months, with a consecutive five-year sentence for the § 924(c)

conviction. 

On appeal, Alvarez first argues that the government’s "persistent

efforts" to disqualify Joyner constituted prosecutorial misconduct

because Joyner represented Cummings on unrelated matters and

because Godwin’s allegations were fabricated. The Sixth Amendment

right to the effective assistance of counsel includes the right to representation that is free from conflicts of interest. Cuyler v. Sullivan, 446

U.S. 335, 345-50 (1980). "[W]hen a conflict situation becomes apparent to the government, the government has a duty to bring the issue

to the court’s attention and, if necessary, move for disqualification of

counsel." United States v. Tatum, 943 F.2d 370, 379-80 (4th Cir.

1991). A trial court has the responsibility to investigate apparent conflicts, advise the defendant personally, and receive the defendant’s

waiver if he wishes to continue with his current counsel. Id. at 379.

Improper conduct by the prosecutor merits reversal of a conviction

when the conduct actually was improper and prejudicially affected the

defendant’s substantial rights so as to deprive him of a fair trial or,

in this case, a fair sentencing. See United States v. Golding, 168 F.3d

UNITED STATES v. ALVAREZ 5
700, 702 (4th Cir. 1999) (citing United States v. Chorman, 910 F.2d

102, 113 (4th Cir. 1990)). 

Alvarez contends that he was prejudiced because the government’s

efforts to disqualify Joyner "probably" caused the district court to

infer that he had withheld information and to disbelieve his version

of events with respect to disputed sentencing issues. 

However, the government had a duty to bring to the district court’s

attention the potential conflict of interest arising from Joyner’s representation of both Alvarez and Cummings. Tatum, 943 F.2d at 379-80.

Once Godwin made the allegations that Cummings bought cocaine

from Alvarez and that Cummings allegedly paid Joyner to represent

Alvarez, and the government learned that Joyner was representing

Cummings in state court, the government was bound to inform the

district court of the situation. The government moved to disqualify

Joyner, at the court’s request, to protect Alvarez’ interest in having

conflict-free representation. We conclude that the government’s conduct was not improper. 

Because Alvarez failed to present evidence challenging the recommendation in the presentence report concerning his role in the

offense, the district court was free to adopt the finding recommended

in the presentence report without further explanation. See United

States v. Love, 134 F.3d 595, 606 (4th Cir. 1998). The district court

adopted the probation officer’s suggestion that Alvarez’ role was not

minor, even if he participated only in one transaction, because his

delivery of the drugs was essential to the drug transaction. This finding was not clearly erroneous. United States v. Akinkoye, 185 F.3d

192, 202 (4th Cir. 1999) (test is whether defendant’s conduct was

essential or material to commission of offense); United States v.

Edwards, 188 F.3d 230, 238 (4th Cir. 1999) (same). 

The district court’s decision not to depart downward is not reviewable on appeal absent a showing that the court’s decision was based

on a failure to understand its legal authority to depart. United States

v. Carr, 271 F.3d 172, 176-77 (4th Cir. 2001). Alvarez has not made

this showing. Consequently, this portion of the appeal must be dismissed. 

6 UNITED STATES v. ALVAREZ
Finally, Alvarez argues that the district court erred in sentencing

him at the top of the guideline range in light of his minimal participation in the conspiracy. However, the district court’s decision to

impose a sentence at any particular point within a correctly calculated

guideline range is generally not reviewable. United States v. Pitts, 176

F.3d 239, 248-49 (4th Cir. 1999). A claim that the sentence was

imposed in violation of law is reviewable, id. at n.6, but Alvarez does

not make this claim and the record would not support it. 

We therefore affirm the sentence imposed by the district court but

dismiss the challenge to the district court’s decision not to depart and

to impose a sentence at the top of the guideline range. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process. 

AFFIRMED IN PART,

DISMISSED IN PART

UNITED STATES v. ALVAREZ 7