United States Court of Appeals 

For the First Circuit 

No. 15-1065 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSE D. CARDONA-VICENTY, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Lynch, Thompson, and Kayatta, 

Circuit Judges. 

 Jose Luis Novas-Debien, III for appellant. 

 Julia Meconiates, Assistant United States Attorney, with whom 

Nelson Pérez-Sosa, Assistant United States Attorney, Chief, 

Appellate Division, Francisco A. Besosa-Martínez, Assistant United 

States Attorney, and Rosa Emilia Rodríguez-Vélez, United States 

Attorney were on brief, for appellee. 

December 2, 2016 
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THOMPSON, Circuit Judge. Jose D. Cardona-Vicenty 

("Cardona") pled guilty to conspiring to distribute narcotics near 

three public housing projects and possessing a firearm in 

furtherance of the drug trafficking offense. After accusing his 

first lawyer of coercing him into accepting a plea agreement, 

Cardona was appointed new counsel for sentencing purposes. On 

appeal, Cardona argues that the district court's assignment of new 

counsel, who also represented a co-defendant in the drug 

trafficking conspiracy, resulted in a conflict of interest for 

counsel number two. He also claims that the district court erred 

in failing to hold a Foster hearing to address the purported 

conflict. Cardona insists that these errors require us to vacate 

his sentence and remand the case for resentencing with new counsel. 

But because there was no clear error with the sentencing court's 

fact finding and no actual conflict of interest, we affirm the 

sentence imposed below. 

Background1

On April 23, 2014, Cardona was indicted, along with 

forty-seven co-defendants, for his involvement in a drug 

trafficking conspiracy which operated out of three public housing 

 

 1 As this sentencing appeal follows a guilty plea, "we 

glean the relevant facts from the change-of-plea colloquy, the 

unchallenged portions of the presentence investigation report 

('PSI Report'), and the record of the [relevant] disposition 

hearing[s]." United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 

2009). 
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projects in Mayagüez, Puerto Rico. Several months later, Cardona 

pled guilty to Counts One and Six of the indictment pursuant to a 

Plea Agreement (the "Agreement"). Count One charged him with 

conspiring to possess with the intent to distribute various amounts 

of heroin, cocaine, crack cocaine, and marijuana within a thousand 

feet of the three public housing projects, in violation of 21 

U.S.C. §§ 841(a)(1), 860, and 846. Count Six charged him with 

carrying and using a firearm in relation to the drug trafficking 

offense, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (2). The 

remaining charges against him (Counts Two through Five) were 

dismissed pursuant to the Agreement. 

By the terms of the Agreement, the parties agreed to 

calculate Cardona's total offense level at 33, but made no 

stipulation as to Cardona's Criminal History Category.2 The 

parties agreed to recommend a sentence at the lower end of the 

Sentencing Guidelines (the "Guidelines") range for the possession 

count and the mandatory minimum of five years for the firearm 

charge. Additionally, Cardona agreed to waive his right to appeal 

the judgment and sentence if sentenced in accordance with the terms 

and conditions of the Agreement. And the government agreed that 

 

 2 The offense level at 33 was based on the following: a 

base offense level of 34 under USSG §§ 2D1.1(c)(4) and 2D1.2(a)(1); 

plus 2 levels under USSG § 3B1.1(c) for his role as a leader, 

organizer, manager, or supervisor in the drug organization; minus 

3 levels for acceptance of responsibility. 
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it would not seek any further adjustments to or departures from 

Cardona's offense level outside of the enhancements already 

applied. 

On August 27, 2014 (20 days after Cardona's change of 

plea, but before sentencing), Cardona's attorney at the time, Peter 

Diaz-Santiago ("Diaz"), moved to withdraw because Cardona had 

accused Diaz -- falsely, in Diaz's opinion -- of coercing him into 

pleading guilty. In response to Diaz's motion, the district court 

set a hearing date -- September 15, 2014 -- to learn the details 

surrounding Cardona's claims and Diaz's desire to withdraw. The 

district court requested that Miguel Oppenheimer ("Oppenheimer"), 

an attorney for one of Cardona's drug trafficking co-defendants, 

attend the hearing "to assist if need be." 

At the proceeding, Cardona sought to withdraw his guilty 

plea. As per the court's instruction, Oppenheimer interviewed 

Cardona and Diaz to better understand the circumstances 

surrounding Cardona's attempts to withdraw his plea and Diaz's 

request to withdraw as defense counsel. After meeting with both 

Cardona and Diaz, Oppenheimer summarized their respective 

positions for the court and then questioned both individuals under 

oath. Cardona testified that he felt pressured to either accept 

the plea deal or go to trial and receive a life sentence if 

convicted. On the other hand, Diaz stated that he met with Cardona 

on multiple occasions to discuss the charges against him, denied 
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Cardona's allegations of coercion, and stated that although 

Cardona was unhappy with the amount of time offered in the 

Agreement, Cardona still chose to plead guilty and never indicated 

that he was hesitant to accept the plea or that he did not want to 

sign the Agreement. Rounding out the dispute, the government 

argued that Cardona's request to withdraw his plea should be denied 

because he was essentially attempting to re-negotiate his plea 

deal -- as the government saw it, he still wanted to plead guilty; 

he just wanted a better deal. 

After hearing from Cardona, Diaz, and the government, 

the district court denied Cardona's request to withdraw his guilty 

plea, finding his allegations against his attorney to be "totally 

frivolous" and ultimately granted Diaz's request to withdraw, 

assigning Oppenheimer as Cardona's new counsel for sentencing 

purposes. Upon Oppenheimer's appointment, the government 

vocalized concerns regarding a potential conflict of interest 

arising from a murder that Cardona had allegedly ordered from jail 

that was ultimately executed by a co-defendant who was also 

represented by Oppenheimer. The government opined that this might 

cause a conflict because Oppenheimer "might want to argue one way 

for one defendant and another way for another defendant" and 

accordingly remarked that a Foster hearing3 might be necessary. 

 

 3 A Foster hearing requires a trial court 
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However, the court did not believe that an actual conflict existed, 

noting that neither the Agreement nor any facts included in the 

Agreement contained anything regarding the alluded-to murder and 

that the murder was not at issue in Cardona's case. 

In any event, Oppenheimer advised the court that he would 

check with Cardona's co-defendant to ensure that there were no 

potential conflicts and he would let the court know if a Foster 

hearing was necessary. Oppenheimer never informed the court of 

any conflict and proceeded to represent Cardona for sentencing 

purposes. On December 7, 2014, after Cardona's co-defendant had 

already been sentenced for his role in the drug trafficking 

conspiracy pursuant to his own plea agreement and two days before 

Cardona's sentencing hearing, Oppenheimer filed a sentencing 

memorandum reiterating, among other things, Cardona's wish to 

recant his guilty plea. 

On the day of the hearing, Cardona pressed his contention 

that he was coerced into pleading guilty. But after hearing 

 

[T]o comment on some of the risks confronted 

where defendants are jointly represented to 

insure that defendants are aware of such 

risks, and to inquire diligently whether they 

have discussed the risks with their attorney, 

and whether they understand that they may 

retain separate counsel, or if qualified, may 

have such counsel appointed by the court and 

paid for by the government. 

United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972). 
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Cardona's reiterated plaint, the court reminded Cardona that it 

had already denied his request to withdraw his plea and would not 

reconsider its decision. 

After the court reaffirmed its ruling, the government, 

concerned about Cardona's continued attempts to withdraw his 

guilty plea, decided to introduce evidence of Cardona's role as a 

leader and his use of a firearm in furtherance of the conspiracy.4 

The court then accepted probation's recommendation of an 

applicable Criminal History Category of III (rejecting Cardona's 

push for a lower one) and determined the appropriate offense level 

was 34 rather than 33, resulting in a Guidelines range of 188-235 

months for Count One.5 Nonetheless, consistent with the plea 

 

 4 Although the government introduced evidence of 

Cardona's role as a leader and his use of a firearm in furtherance 

of the conspiracy at sentencing, this was only in response to 

Cardona's continued attempts to withdraw his guilty plea. The 

government made clear that it did not intend to violate the 

Agreement and only sought to introduce the evidence "to show [that 

Cardona] indeed possessed firearms and was a leader," contrary to 

his plea withdrawal assertions. The government never asked the 

court to find Cardona in breach of the Agreement. Indeed, at 

sentencing, the government recommended an offense level and 

sentence in accordance with the terms of the Agreement and did not 

argue for any additional enhancements that were not provided for 

in the Agreement. The sentencing judge also noted before allowing 

the government to introduce the evidence that it was "not a 

violation of the Plea Agreement" to do so. 

 5 Cardona was sentenced on December 9, 2014. USSG 

Amendment 782 became effective on November 1, 2014, after the plea 

agreement was entered. Amendment 782 permits a retroactive, twolevel reduction of the base offense levels for drug offenders 

sentenced pursuant to USSG §§ 2D1.1 and 2D1.11. See USSG App. C. 

Supp., Amend. 782. Applying the new base offense level under 

Amendment 782, the court adopted probation's recommendation, 
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agreement, the government recommended a sentence of 168 months for 

Count One and the mandatory minimum of 60 months for Count Six. 

Rejecting this recommendation as inadequate, the court 

sentenced Cardona to a below-Guidelines sentence of 180 months on 

Count One and 60 months on Count Six, to be served consecutively. 

This timely appeal followed.6

Discussion 

Cardona contends that the district court denied him his 

constitutional right to the effective assistance of counsel 

because the court failed to hold a Foster hearing and Oppenheimer 

labored under a conflict of interest.7 The government argues that 

the failure to hold a Foster hearing resulted in no reversible 

error because there was no actual conflict of interest. "Where an 

 

started with a base offense level of 32, and added 2 levels for 

Cardona's role as a leader pursuant to USSG § 3B1.1(c). The court 

then calculated Cardona's total offense level at 34, declined to 

award Cardona credit for acceptance of responsibility because of 

his ongoing efforts to withdraw his plea, and declined to add any 

additional enhancements. 

 6 The government argues that Cardona's claims are 

precluded by the waiver-of-appeal clause of the Agreement. 

Cardona's claims can easily be resolved on the merits. Therefore, 

"[f]or ease in analysis," we "assume arguendo that the waiver-ofappeal provision does not bar the maintenance of this appeal." 

United States v. Dávila-Tapia, 491 F. App'x 197, 198 (1st Cir. 

2012). 

 7 Cardona does not challenge the appropriateness of the 

court's decision to appoint Oppenheimer as his lawyer after 

utilizing Oppenheimer as a type of independent counsel or 

investigator for the court to address Diaz's motion to withdraw 

and Cardona's claims of coercion. We do not consider the 

appropriateness of that practice here because Cardona does not 

raise this argument on appeal. 
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ineffective assistance [of counsel] claim is premised on counsel's 

alleged conflict of interest, we review the ultimate issue de novo, 

but defer to the district court's subsidiary fact findings unless 

they are clearly erroneous." Reyes-Vejerano v. United States, 276 

F.3d 94, 97 (1st Cir. 2002) (citing Familia-Consoro v. United 

States, 160 F.3d 761, 764-65 (1st Cir. 1998)). 

Under the Sixth Amendment, "a defendant has a right to 

conflict-free representation." United States v. Hernandez-Lebron, 

23 F.3d 600, 603 (1st Cir. 1994). A lawyer can represent multiple 

defendants, but not if the joint representation "gives rise to a 

conflict of interests adversely affecting the lawyer's 

performance" -- for then there would be a Sixth Amendment 

violation. Id. 

And given the "ubiquitous and insidious" risks of 

multiple representation, the Sixth Amendment imposes a duty on 

trial courts to investigate a defendant's timely objections to 

joint representation and to inquire into the propriety of multiple 

representation whenever the trial court "knows or reasonably 

should know that a particular conflict exists." Id. at 603-04. 

"Federal Rule of Criminal Procedure 44(c) expands these duties by 

requiring an inquiry into the possibility of a conflict in all 

cases where jointly-charged defendants retain the same counsel." 

Id. at 604. Specifically, under Rule 44(c), "[u]nless there is 

good cause to believe that no conflict of interest is likely to 
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arise," the court is required to "take appropriate measures to 

protect each defendant's right to counsel." Fed. R. Crim. P. 

44(c). Rule 44(c) requires a "district court [to] inquire into 

each instance of joint representation of multiple defendants, and 

[requires the court to] advise each defendant of his right to 

separate counsel." United States v. Coneo-Guerrero, 148 F.3d 44, 

47 (1st Cir. 1998). The timing and form of this inquiry is left 

to the discretion of the court. See Foster, 469 F.2d at 5. 

"If a satisfactory inquiry does not appear on the record, 

the government has the burden of persuasion of demonstrating that 

prejudice to the defendant was improbable." United States v. 

Mazzaferro, 865 F.2d 450, 454 (1st Cir. 1989) (citing Foster, 469 

F.2d at 5). If a satisfactory inquiry was held, the defendant 

"bears the burden of persuasion that he was deprived of a fair 

trial resulting from a conflict of interest arising from the joint 

representation." Id. 

Here, no Foster inquiry was held. However, even if we 

assume that a Foster inquiry was required, the government has 

sufficiently demonstrated that any prejudice to Cardona was 

improbable because there was no actual conflict of interest.8

 

 8 While we ultimately find that there was no conflict of 

interest here, given the "ubiquitous and insidious" risks of 

multiple representation discussed earlier, we caution that courts 

-- in order to avoid any risk of impropriety -- should give more 

express attention than was afforded here when making attorney 

appointments which result in dual representation of co-defendants. 
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As mentioned above, the joint representation of codefendants does not in itself constitute a per se violation of the 

Sixth Amendment right to conflict-free representation. See Burger 

v. Kemp, 483 U.S. 776, 783 (1987); Cuyler v. Sullivan, 446 U.S. 

335, 348 (1980)(holding that "multiple representation does not 

violate the Sixth Amendment unless it gives rise to a conflict of 

interest" and "a reviewing court cannot presume that the 

possibility for conflict has resulted in ineffective assistance of 

counsel"). Indeed, "[t]he Sixth Amendment right to effective 

assistance of counsel is violated when an actual conflict of 

interest adversely affects counsel's representation." Bucuvalas 

v. United States, 98 F.3d 652, 656 (1st Cir. 1996) (citing Cuyler, 

446 U.S. at 348). And "[a] defendant 'who raised no objection at 

trial [or at the district court below] must demonstrate that an 

actual conflict of interest adversely affected his lawyer's 

performance.'" Familia-Consoro v. United States, 160 F.3d 761, 

764 (1st Cir. 1998) (citing Cuyler, 446 U.S. at 349-50)). To 

establish an actual conflict of interest, a "defendant must show 

that (1) the attorney could have pursued a plausible alternative 

defense strategy, and (2) the alternative strategy was inherently 

in conflict with or not undertaken due to the attorney's other 

interests or loyalties." Id. (citing United States v. SoldevilaLopez, 17 F.3d 480, 486 (1st Cir. 1994)). In other words, Cardona 

"can prevail only if there was a plausible alternative defense 
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strategy that was either foreclosed or inhibited by the joint 

representation." United States v. Lachman, 521 F.3d 12, 21 (1st 

Cir. 2008) (citing United States v. Nelson-Rodriguez, 319 F.3d 12, 

41-42 (1st Cir.), cert. denied sub nom. Caribe-Garcia v. United 

States, 539 U.S. 928 (2003)). If Cardona can demonstrate that 

some plausible alternative defense strategy or tactic might have 

been pursued, "[h]e need not show that the defense would 

necessarily have been successful if it had been used, but merely 

that it possessed sufficient substance to be a viable alternative." 

Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982) (citing 

Foxworth v. Wainwright, 516 F.2d 1072, 1079 (5th Cir. 1975)). 

But speculative or theoretical conflicts of interests do 

not amount to a Sixth Amendment violation. See Soldevila-Lopez, 

17 F.3d at 487 (finding appellant's claim of a conflict of interest 

to be based on "mere speculation" and holding that "[a] theoretical 

or merely speculative conflict of interest will not invoke the per 

se rule") (citing United States v. Aeillo, 900 F.2d 528, 530–31 

(2d Cir. 1990)); Brien, 695 F.2d at 15 (holding that "the tactics 

[the appellant] suggests that his attorney could have pursued 

appear to be merely hypothetical choices that in reality could not 

have benefited [the appellant] and were often not in any conflict 

with [his attorney's] other loyalties"); Cuyler, 446 U.S. at 350 

(noting that the mere possibility of a conflict is not sufficient 

to establish a violation of a defendant's right to conflict-free 
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representation and that a defendant must "show[] that his counsel 

actively represented conflicting interests" in order to establish 

an actual conflict). 

Cardona begins by conjuring up three hypothetical 

situations which he contends could have given rise to a conflict 

of interest. First, he theorizes that if the government had sought 

to nullify the plea agreement given his perceived "breach" 

(presumably based on his attempts to withdraw his guilty plea), 

this may have resulted in a trial where he might have had to defend 

against murder allegations. Second, he suggests that if the court 

had allowed him to withdraw his guilty plea, and if he had then 

chosen to plead guilty without a plea agreement, he may have had 

to defend against a cross reference guideline for the murder 

pursuant to USSG § 2A1.1. And third, he hypothesizes that even if 

his plea agreement remained intact, he may have had to defend 

against a § 2A1.1 cross reference at the recommendation of 

probation. 

But even Cardona concedes that the would-be conflicts he 

complains of "did not materialize." The government never moved to 

find Cardona in breach of his plea agreement (despite his continued 

attempts to withdraw his guilty plea), and the court repeatedly 

denied Cardona's multiple attempts to withdraw his plea (a ruling 

he does not contest on appeal). And with that plea agreement 

impermeable below, Cardona never faced trial and he never, under 
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any other contrivance he imagines, had to defend against a USSG § 

2A1.1 cross reference guideline for murder. Because none of the 

hypothetical situations he outlines actually occurred, there was 

no opportunity for his attorney at the time to pursue any 

"plausible alternative defense strategy that was either foreclosed 

or inhibited by [Oppenheimer's] joint representation." 9 Lachman, 

521 F.3d at 21.10 

As "[w]e [have] long ago cautioned," where the conflict 

relies on "some attenuated hypothesis having little consequence to 

the adequacy of representation," Brien, 695 F.2d at 15, we will 

not grant an "undeserved 'windfall' to defendants by 

[automatically] vacating convictions." Nelson-Rodriguez, 319 F.3d 

at 42 (citations omitted); see also United States v. Newton, 326 

F.3d 253, 263–64 (1st Cir. 2003) (rejecting a rule of "automatic 

 

 9 For each hypothetical scenario, Cardona seems to allege 

that but for the purported conflict, his attorney could have 

pursued alternative defense strategies: (1) the cross examination 

of witnesses regarding his supposed participation in a murder; and 

(2) the possibility of him or his co-defendant deciding to 

cooperate and implicate the other at trial. Because we find no 

conflict we need say no more. 

 10 Ever persistent, Cardona insists that the government's 

statement after Oppenheimer was appointed -- that Oppenheimer 

"might want to argue one way for one defendant and another way for 

another defendant" -- satisfies his burden of "showing an 

alternative defense strategy, which might bear negatively on the 

defense of the other client" and sufficiently establishes an actual 

conflict. Cardona's argument that the government's statement 

somehow amounts to a defense strategy is nonsensical. Nor does 

the government's statement amount to an actual conflict of 

interest: at best, the government pointed out a potential conflict 

that was never actualized given both co-defendants' guilty pleas.
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reversal in cases where a defense attorney's conflict of interest 

does not adversely affect counsel's performance, observing that 

such a rule 'makes little policy sense'") (quoting Mickens v. 

Taylor, 535 U.S. 162, 172 (2002)). That is so because the Sixth 

Amendment right to effective assistance of counsel has been 

accorded "not for its own sake, but because of the effect it has 

on the ability of the accused to receive a fair trial." Mickens, 

535 U.S. at 166 (quoting United States v. Cronic, 466 U.S. 648, 

658 (1984)). Where there is no conflict of interest and thus no 

effect on counsel's representation or a defendant's fair trial 

interests, there is no Sixth Amendment violation. See Newton, 326 

F.3d at 263–64. 

CONCLUSION 

 For the foregoing reasons, we affirm the sentence of 

the court below.