In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3939

United States of America,

Plaintiff-Appellee,

v.

Rickey B. Wallace,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 97-CR-30006-01-WDS--William D. Stiehl, Judge. 

Argued May 10, 2001--Decided January 9, 2002 

 Before Posner, Easterbrook, and Diane P.

Wood, Circuit Judges.

 Diane P. Wood, Circuit Judge. Rickey B.

Wallace was a big-time marijuana dealer

in Southern Illinois. Over the years, he

was responsible for transactions

amounting to a whopping 13,471 kilograms

of that substance, according to one of

his co-conspirators, Ubaldo Diaz II. Law

enforcement authorities caught up with

him in early 1997, when he was indicted

along with several others for conspiring

to distribute "divers amounts of

marihuana" from approximately 1987

through September 1997, in violation of

21 U.S.C. 841(a)(1) and 846. He

pleaded guilty, but then thought better

of matters after he learned that he would

be held responsible for such a large

quantity. His motion to withdraw his

guilty plea became complicated by the

near-simultaneous discovery that his

first lawyer allegedly had a serious

conflict of interest. In the end, the

district court denied Wallace’s motion

(filed by a new lawyer) to withdraw the

plea and sentenced Wallace to 240 months’

imprisonment. Wallace appeals, and we

affirm.

I

 At the time of his guilty plea, Wallace

was 50 years old and the owner of a
roofing business in Southern Illinois.

Represented by attorney Clifford

Schwartz, Wallace stipulated in writing

that between 1987 and November of 1994,

he was a leader of an organization that

distributed marijuana in and around

Granite City, Illinois. Wallace admitted

that during this period he regularly

received large quantities of marijuana

from suppliers in Texas, including

co-conspirator Diaz. Wallace also

admitted that on two different occasions

in 1994 (July and October), law

enforcement officials seized from Diaz

separate 800-pound shipments of marijuana

(a total of over 700 kilograms) that were

intended for Wallace.

 In his plea agreement, Wallace

acknowledged that his offense was subject

to the United States Sentencing

Guidelines and that his sentence would be

determined by the court. The plea

agreement noted that the sentence would

depend on the amount of marijuana the

court found should be counted as relevant

conduct, and that if the amount exceeded

100 kilograms, he was facing a sentence

ranging from 5 to 40 years. Finally,

Wallace confirmed in the plea agreement

that there were no agreements or promises

relating to the length of his sentence.

 On February 3, 1998, prior to accepting

Wallace’s plea, the district court

conducted a lengthy Rule 11 colloquy. In

the course of that exchange, Wallace

stated under oath that he had discussed

the indictment and the evidence against

him with his attorney, Schwartz. Turning

to the plea agreement, the court asked

Wallace to confirm the fact that the plea

agreement contained no commitments about

his expected sentence. Asked if he

understood this, Wallace replied, "Yes,

sir." The court then again asked whether

"anyone made any other or different

promise or assurance of any kind to you,"

and Wallace replied, "No, sir." 

 The court then explained to Wallace that

"the penalty provided by law for the

offense to which you are pleading is

governed by the amount of controlled

substance found to constitute your

relevant conduct. Here we have no

agreement as to that amount. That is

something that I will have to determine

at a later date." After reviewing all the

possible relevant conduct ranges and the
potential sentences that could attach,

the court asked, "Now do you understand

all of those possible consequences of

your plea?" Wallace said that he did. He

also affirmed that he had "discussed how

the sentencing guidelines might apply in

his case" with Schwartz. Finally, Wallace

agreed that he understood that the court

"will not be able to determine the

applicable guideline range in your case

until after a presentence report has been

prepared."

 Next, the government spelled out what it

was prepared to prove at trial, including

the two 800-pound shipments of marijuana

that government agents seized from Diaz

in 1994. Following the recitation the

court asked, "Mr. Wallace, is what [the

government] has just told us

substantially correct?" Wallace

responded: "Would that total be 1,600

pounds?" Clarifying, the court answered,

"Well, as I understand it, the amount

constituting your relevant conduct is not

agreed to, but that there, in this

recital of the facts . . . [the

government] talked about . . . two

shipments of 800 pounds. So is what he

told us substantially correct?" Wallace

agreed that it was, and also agreed that

the stipulation of facts was accurate.

 After entering his guilty plea, but

before the conclusion of the change of

plea hearing, Wallace interrupted the

court to ask whether at sentencing the

court would "judge what can be put in?"

He asked, "When the government puts on

what I consider to be lies that has been

told, then you are going to judge that,

is that true?" The court answered that

"[i]t will be just like a trial. The

government is going to put on evidence. .

. . You are going to have the right, or

your attorney will have the right, to

cross-examine their witnesses. Your side

is going to have the right to put on

witnesses . . . and after all of that,

then I have to make a determination."

Wallace then asked, "We’re almost having

a trial then, aren’t we?," and the court

replied that "[s]ome of these sentencings

come down to a mini trial. All it is is

a trial over the amounts. . . . Does that

answer your question?" Wallace said it

did.

 Following Wallace’s guilty plea, the

United States Probation Office prepared a
presentencing report. Relying largely on

information provided by Diaz, the report

found Wallace’s relevant conduct during

the seven years of the conspiracy to

include marijuana transactions totaling

13,471 kilograms (almost 30,000 pounds).

Apparently surprised by the relevant

conduct recommendation, Wallace filed,

through Schwartz, a motion to withdraw

his guilty plea.

 This was where matters veered from the

beaten track. Before the court had an

opportunity to rule on Wallace’s motion,

the government moved to disqualify

Schwartz. It accused Schwartz of either

witnessing or participating in suborning

perjury and witness tampering by Wallace.

In particular, it alleged that while

Wallace was out on bond, he and Schwartz

had gone to Rio Grande City, Texas, to

interview members of Diaz’s family. While

there, Wallace told Diaz’s sister Isabel

that they had to "shut [her brother] up."

He asked Isabel to lie about her

relationship with Wallace and told Diaz’s

father that he should testify that Diaz

was lying. In exchange, Wallace offered

to pay the family $50,000. The government

argued that whether or not Wallace was

allowed to withdraw his guilty plea,

Wallace’s actions on the trip to Rio

Grande City were relevant to the case,

and Schwartz would potentially be put in

the position of being called as a witness

against his client. Both Schwartz and

Wallace objected to the government’s

motion and submitted affidavits denying

the supporting allegations. The district

court held a hearing on the motion to

disqualify and, in a subsequent written

order, disqualified Schwartz on the

ground asserted by the government.

 Following Schwartz’s disqualification,

attorney John O’Gara entered his

appearance on behalf of Wallace. O’Gara

immediately filed an amended motion to

withdraw Wallace’s guilty plea. Whereas

the Schwartz motion to withdraw the plea

had argued that the government was

impermissibly shifting theories from a

single conspiracy to multiple

conspiracies, the O’Gara motion focused

principally on the conflict of interest

between Schwartz and Wallace that (it

argued) tainted the original guilty plea

proceedings. Schwartz, Wallace now urged,

had a powerful motive to induce Wallace

to plead guilty, because by avoiding a
trial, Schwartz could avoid having his

unethical and potentially criminal

conduct come to light. In his amended

motion, however, Wallace made clear that

he was not conceding any wrongdoing while

visiting Diaz’s family: "The defendant by

this motion does not admit to the

government’s allegations in its motion to

disqualify Mr. Schwartz." According to

Wallace, "[t]he actual conflict of

interest in this case is created by the

government’s allegations and implications

arising from the allegations." In his

amended motion to withdraw, Wallace also

alleged for the first time that Schwartz

did not fully apprise him of the

potential sentence he faced and that

Schwartz was confused about the issue.

According to Wallace, Schwartz promised

that he would only serve five years and

that "only because of this inducement did

he enter a plea of guilty."

 The district court denied Wallace’s

motion without an evidentiary hearing. It

rejected Wallace’s argument that because

his lawyer may have had a conflict of

interest at the time of the plea, this

was enough in itself to invalidate the

plea of guilty. Instead, the court

examined Wallace’s plea agreement and the

earlier Rule 11 colloquy for any evidence

that Wallace’s plea was not knowing or

voluntary. It concluded that Wallace’s

repeated sworn statements that he

understood that there was no agreement as

to sentence belied his claim that

Schwartz promised him he would receive

five years. Not finding any other

evidence of involuntariness or lack of

knowledge, and noting that Wallace was

not actually asserting that Schwartz

improperly pressured or compelled him to

enter into the guilty plea, the court saw

no grounds for permitting Wallace to

withdraw his plea. 

 Wallace responded to the court’s ruling

with a motion seeking an evidentiary

hearing on the issues raised in his

amended motion to withdraw his guilty

plea. He made an offer of proof in which

he stated that he would testify at an

evidentiary hearing that Schwartz and the

U.S. Attorney both led him to believe he

would receive a five-year sentence and

that if he pleaded guilty, one of his

co-conspirators, Linda Adams, would be

"exonerated." The court granted a hearing

on the limited issue of what Schwartz had
told Wallace about the potential sentence

he faced if he elected to plead guilty.

 At the hearing, Wallace was the only

witness who testified. His statements

there amounted to a 180-degree shift from

his earlier testimony at the Rule 11

hearing. He claimed that he had not

discussed the terms of his plea agreement

with Schwartz, that he had not read the

plea documents, and that Schwartz did not

discuss the sentencing guidelines with

him. He testified that he did not

understand how relevant conduct would

affect his sentence. And he testified

that Schwartz had promised him a fiveyear sentence. The district court was

unimpressed. In its order again denying

Wallace’s motion to withdraw his plea,

the court concluded that Wallace’s new

testimony simply "was not credible."

Revisiting the conflict issue, the court

supplemented its earlier reasoning with

the observation that if Schwartz and

Wallace had, as the government alleged,

intimidated and attempted to bribe the

Diaz family, Wallace was well aware of

Schwartz’s conflict when he entered his

plea and had thus effectively waived his

Sixth Amendment right. (If Schwartz had

really done nothing, as Wallace was also

asserting, then there would have been no

conflict that might have tainted his

advice.)

 The district court held a sentencing

hearing on November 1, 2000. Wallace

withdrew all objections to the

presentence report, but he argued that he

should not be sentenced to a term longer

than his life expectancy. The court

rejected this argument. Wallace also

mentioned the Supreme Court’s then-recent

decision in Apprendi v. New Jersey, 530

U.S. 466 (2000), in order to "save the

issue for appeal." The court sentenced

Wallace to 240 months and five years of

supervised release.

II

 Wallace’s first three arguments on

appeal involve his motion to withdraw his

guilty plea. We review the district

court’s decision denying such a motion

for abuse of discretion. United States v.

Milquette, 214 F.3d 859, 861 (7th Cir.

2000). The court’s factual findings about

the existence (or not) of a fair and just

reason to withdraw the plea stand unless
they are clearly erroneous. United States

v. Messino, 55 F.3d 1241, 1247 (7th Cir.

1995).

 Federal Rule of Criminal Procedure 32(e)

provides that, prior to sentencing, a

defendant may be permitted to withdraw

his guilty plea for any "fair and just"

reason. Defendants do not have an

absolute right to withdraw a plea, United

States v. Pike, 211 F.3d 385, 388 (7th

Cir. 2000), but a defendant is entitled

to withdraw his plea if he can

demonstrate that it was not entered into

knowingly and voluntarily. United States

v. Ellison, 835 F.2d 687, 692-93 (7th

Cir. 1987) (lack of voluntariness is a

fair and just reason for withdrawing a

guilty plea).

 Wallace first argues that because

Schwartz labored under a conflict of

interest, Wallace received ineffective

assistance of counsel and thus his plea

was not voluntary. In broad terms, it is

true that a guilty plea entered by a

defendant who has received ineffective

assistance of counsel is generally deemed

to be involuntary. Hill v. Lockhart, 474

U.S. 52, 56 (1985). It is also true that

under certain circumstances, a defense

attorney who has an actual or a potential

conflict of interest renders ineffective

assistance. Cabello v. United States, 188

F.3d 871, 875 (7th Cir. 1999). But the

link between these two elements--the

conflict of interest, and the ineffective

assistance--must be demonstrated before

the defendant is entitled to withdraw his

plea on that basis.

 A defendant alleging ineffective

assistance must demonstrate both that her

attorney’s performance fell below an

objective standard of reasonableness and

that she was prejudiced by this deficient

representation. Strickland v. Washington,

466 U.S. 668, 687 (1984). In the typical

case, establishing prejudice requires

demonstrating that absent the attorney’s

deficient performance there is a

reasonable likelihood that the outcome of

the proceedings would have been

different. United States v. Henry, 933

F.2d 553, 561 (7th Cir. 1991). Because

"loyalty to her client is among the most

basic of an attorney’s duties and

[because of] the near impossibility of

measuring the precise effect on the

defense of representation corrupted by a
breach of this duty," however, it is

easier to satisfy Strickland’s prejudice

requirement in a conflict of interest

case. Cabello, 188 F.3d at 875. 

 A defendant alleging a conflict of

interest can satisfy the prejudice

requirement in one of two ways. If the

trial judge knew or should have known

that a potential conflict of interest

existed and did not adequately address

the issue with the defendant, then we

will presume prejudice. Lipson v. United

States, 233 F.3d 942, 945 (7th Cir.

2000). Alternatively, if the trial judge

was not put on notice of a potential

conflict, following Cuyler v. Sullivan,

446 U.S. 335, 350 (1980), a court will

presume prejudice "if the defendant

demonstrates that her counsel actively

represented conflicting interests and

that the conflict adversely affected the

counsel’s performance." Cabello, 188 F.3d

at 875; see Cuyler, 446 U.S. at 348.

 In this case, the government’s motion to

disqualify Schwartz was the first sign

the court had of any conflicts Schwartz

might have with Wallace. As the court

implicitly recognized, there were two

possible areas of conflict. If the

government’s allegations of Schwartz’s

participation in witness-tampering were

true, then Schwartz had an actual

conflict throughout the proceedings,

including when he advised Wallace

regarding his guilty plea. Even if the

government’s allegations were not true,

however, the mere fact that Schwartz was

charged with wrongdoing created the

potential for his interests to conflict

with Wallace’s, and it certainly created

a potential public perception of

impropriety. The district court

disqualified Schwartz based only on these

potential future conflicts. It expressed

no opinion on whether the evidence

supported the government’s charges

against Schwartz and thus whether

Schwartz had an actual conflict at the

time Wallace pleaded guilty.

 Before the district court, Wallace

argued that Schwartz had an actual

conflict at the time he advised Wallace

regarding his plea. This is generally a

claim made under Cuyler. See Cabello, 188

F.3d at 874. To prevail, Wallace had to

"demonstrate with a reasonable degree of

specificity that a conflict actually
existed," Henry, 933 F.2d at 561, and

that the conflict adversely affected his

representation. Wallace did not attempt

to meet these burdens before the district

court. Instead, he maintained that an

actual conflict arose solely from the

"implications" of the government’s theory

of what happened in Rio Grande City and

that the mere possibility of an adverse

impact on Wallace’s representation was

enough to establish a Sixth Amendment

violation. In other words, as the

district court construed it, Wallace took

the position that the possibility of a

conflict was, by itself, enough to

establish a per se Sixth Amendment

violation.

 On appeal, Wallace again argues for a

per se rule, but he does not cite Cuyler

or offer an argument for why its

standards should not apply here. Wallace

argues instead that our opinion in Stoia

v. United States, 22 F.3d 766 (7th Cir.

1994), compels a ruling in his favor. We

disagree. In Stoia we expressly applied

Cuyler and required that the defendant

demonstrate both the existence of an

actual conflict and an adverse impact on

his representation. Unlike Wallace, Stoia

proved that at the relevant times his

attorney had an actual conflict of

interest that arose out of a plea

agreement that the attorney had entered

into with the government. There was no

dispute as to the existence of this plea

agreement nor was there any dispute as to

the competing interests it created for

Stoia’s attorney. In contrast, Wallace

never demonstrated that Schwartz actually

participated in any wrongdoing while in

Rio Grande City. While this may have been

one of the theories behind the

government’s motion and thus initially

its burden, it became Wallace’s burden

for purposes of the motion to withdraw

the plea. The court made no finding on

that question, and Wallace submitted an

affidavit in which he specifically denied

that the events alleged by the government

occurred.

 Perhaps more importantly, even with the

finding of an actual conflict, the Stoia

court went on to review the defendant’s

evidence of adverse impact on his

representation. Finding none, it rejected

his ineffective assistance of counsel

claim. In this case, however, Wallace has

put forth no actual evidence of an
adverse impact. The only evidence to

which Wallace points is his testimony at

the plea withdrawal hearing that Schwartz

promised him a five-year sentence. The

district court was correct in this case

to reject Wallace’s new stance on

credibility grounds and to hold Wallace

to his earlier sworn statements.

 Wallace also relies on United States v.

Cancilla, 725 F.2d 867 (2d Cir. 1984),

for the proposition that Schwartz’s

assistance was per se ineffective and

that he is thus entitled to withdraw the

plea. Briefly, Cancilla held that

specific evidence of adverse impact on

representation is not necessary, and that

the court would find a Sixth

Amendmentviolation whenever there is a

reasonable possibility that the

defendant’s attorney engaged in the

defendant’s wrongdoing. See also United

States v. Fulton, 5 F.3d 605 (2d Cir.

1993). But this court, in Cerro v. United

States, 872 F.2d 780 (7th Cir. 1989), has

already rejected the Cancilla rule. In

Cerro, the defendant’s attorney was

implicated in the defendant’s wrongdoing,

and the defendant argued for Cancilla’s

per se rule. This court declined to apply

Cancilla because the evidence on which

the defendant relied to implicate his

attorney "did not clearly establish" his

involvement in criminal activity and

because, even if it did, the Cancilla

rule would require us to accept the

"disingenuous and incongruous" argument

that the defendant received ineffective

assistance on the basis of a conflict

that the defendant was well aware of long

before trial. Id. at 785. See also United

States v. Montana, 199 F.3d 947 (7th Cir.

1999), which held that the burden is on

the defendant to demonstrate that his

attorney actually did fear prosecution,

and that absent evidence that the

attorney actually "pulled his punches,"

no inference of intimidation could arise.

Id. at 949.

 To the extent that Wallace is implicitly

inviting us to reject Stoia, Cerro, and

Montana, and to adopt the Cancilla

approach, we decline the overture. (We

are aware that the Supreme Court has

under consideration the case of Mickens

v. Taylor, 240 F.3d 348 (4th Cir. 2000)

(en banc), cert. granted, 121 S. Ct. 1651

(2001), and that Mickens may throw some

light on the burden a petitioner like
Wallace has to prove adverse effect and

prejudice under Cuyler, when an actual

conflict of interest was present.

Anything we hold in this case is

obviously subject to modification,

depending upon the outcome of Mickens.)

Montana, consistently with Cuyler,

requires that the defendant show some

adverse effect on his representation

stemming from his counsel’s conflict. As

we have already explained, Wallace failed

to do so. Because we can resolve

Wallace’s case this way, we need not

delve into some potentially troublesome

questions that could arise in other

situations. For example, requiring

Wallace to demonstrate that Schwartz had

an actual conflict at the time Wallace

entered his guilty plea would require

Wallace to put forward potentially

incriminating evidence prior to

sentencing; that evidence could at a

minimum lead to a higher sentence, a

sentence enhancement for obstruction of

justice, or additional criminal charges.

Such a requirement might have Fifth

Amendment implications, and it might not

suffice to protect the defendant’s Sixth

Amendment right to conflict-free counsel.

Asking a defendant to prove a crime in

which she is implicated would condition

her ability to vindicate her right

toconflict-free counsel on a selfincriminating statement. But on the

record here, the district court properly

rejected Wallace’s claim that his Sixth

Amendment rights were violated, and it

did not abuse its discretion in denying

the motion to withdraw the plea on the

basis of Schwartz’s alleged actual

conflict.

 Wallace next argues that he should have

been permitted to withdraw his guilty

plea because he did not understand the

consequences of that plea. This argument

borders on the frivolous, and we reject

it. Wallace is trying to overturn

credibility findings made by the district

court, and in the process he is also

denigrating the solemnity of the Rule 11

proceeding. See United States v. Stewart,

198 F.3d 984, 986-87 (7th Cir. 1999).

 The next arrow in Wallace’s quiver is

Apprendi. He argues that his plea was not

knowing and voluntary because the

indictment did not specify a quantity of

marijuana and the court did not inform

him during the Rule 11 colloquy that the
government would have to prove drug

quantity beyond a reasonable doubt.

Wallace did not object to these omissions

during the plea colloquy, nor did he

raise the issue in either of his motions

to withdraw his plea. He mentioned

Apprendi during sentencing but made no

argument to the district court. He merely

stated that he wanted "the Seventh

Circuit to consider the impact of

Apprendi v. New Jersey on this case."

This is of course not enough to preserve

an issue for appellate review. We will

thus review Wallace’s Apprendi claim only

for plain error. United States v. Nance,

236 F.3d 820, 824 (7th Cir. 2000). 

 Prior to accepting a defendant’s guilty

plea, a district court is expected to

ensure that a defendant understands the

elements of the crime to which he is

admitting. United States v. Ranum, 96

F.3d 1020, 1024 (7th Cir. 1996). Since

Apprendi, it has been clear that to the

extent that drug quantity affects a

defendant’s statutory maximum sentence,

it is an aspect of the crime that should

be specified in the indictment and must

be proven beyond a reasonable doubt.

Wallace was sentenced to 20 years. Under

the Sentencing Guidelines, in order to

receive a sentence for conspiracy to

distribute marijuana that is greater than

five years but less than forty, the

defendant’s crime must involve at least

100 kilograms of marijuana. 21 U.S.C.

sec. 841(b)(1)(B)(vii). There was thus

error in both Wallace’s indictment and in

the plea colloquy. In order to satisfy

the plain error standard, however, the

mistakes below must have "seriously

affect[ed] the fairness, integrity, or

public reputation of [the] judicial

proceedings." Johnson v. United States,

520 U.S. 461, 467 (1997). In this case

there was no such effect. Wallace has

never denied his involvement in the two

transactions totaling 1,600 pounds, or

over 700 kilograms, of marijuana. To the

contrary, he admitted to them under oath,

both in his stipulation of facts and

during the plea colloquy, and conceded at

sentencing that the government could

prove at least these two transactions

beyond a reasonable doubt. Under these

circumstances the Apprendi errors in the

indictment and plea colloquy do not

entitle Wallace to withdraw his plea.

United States v. Gilliam, 255 F.3d 428,

434-35 (7th Cir. 2001) (indictment error
not grounds for withdrawal where

defendant admitted under oath to

necessary drug quantity); Lee v. United

States, 113 F.3d 73, 75 (7th Cir. 1997)

(permitting withdrawal of plea only where

change in law casts doubt on factual

sufficiency of plea).

 Finally, Wallace challenges his sentence

as unconstitutional because it exceeds

his life expectancy. Even assuming for

purposes of argument that Wallace

adequately established his life

expectancy at sentencing, this claim need

not detain us for long. Wallace’s theory

has its origin in United States v.

Martin, 63 F.3d 1422 (7th Cir. 1995).

Whatever the language of Martin may have

suggested, we have since been very clear

that its holding is limited to the

particular statute and unique

circumstances of that case. Moreover, we

have rejected the applicability of

Martin’s holding to convictions and

sentences imposed under 21 U.S.C.

sec.sec. 841(a)(1) and 846. See United

States v. Robbins, 197 F.3d 829, 852 (7th

Cir. 1999).

III

 Because the district court acted within

its discretion to deny Wallace’s motion

to withdraw his guilty plea, and because

there was no error relating to the length

of the sentence Wallace received, the

judgment of the district court is

AFFIRMED.