UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit.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 resubmit 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 effective 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 counsel has potentially been compromised and remand is therefore necessary. 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

 2
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 representation. 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 omitted), cert. denied, 482 U.S. 916 (1987).

Conversely, "[i]f the court is aware, or should be aware, of a particular conflict, it should conduct a sua sponte inquiry into its existence." 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 counsel'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 indictment, plea agreement, plea colloquy, and presentence investigation

report all refer to 21 U.S.C.A. § 841 (West 1981 & Supp. 1995). Both

 3
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 correction 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 contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

 4