### The Honorab le Russell G. Clark, United States District Judge 1 

### for the Western District of Missouri.

The Honorable William R. Collinson, late a United State s 2 

### District Judge for the Western District of Missouri. ___________ No. 96-1546

___________ Douglas Bemis, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. United States of America, * * [UNPUBLISHED] Appellee. *

___________ Submitted: September 20, 1996 Filed: September 30, 1996

___________ Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

___________ PER CURIAM.
Dougla s Bemis appeals from the District Court's denial of his 2 8 1 U.S.C. § 2255 (1994) motion without an evidentiary hearing. We affirm as to most of Bemis's claims, but remand for an evidentiary hearing on Bemis' s claim that his sentencing counsel had a conflict of interest.

In November 1989, Bemis pleaded guilty to conspiring to distribut e cocaine, in violation of 21 U.S.C. § 846 (1994), and to laundering money, in vio lation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i), (a)(1)(B)(i), an d (a)(1)(B)(ii) (1994). The District C ourt sentenced him to two concurrent 2 terms of 168 months imprisonment.

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On direct appeal, we affirmed. United States v. Bemis , No. 90-1458, slip op. (8th Cir. Sept. 18, 1990) (unpublished per curiam).
In June 1995, Bemis filed the instan t section 2255 motion, which the District Court summarily denied. We will affirm the District Court only if, upon de novo revi ew, we are persuaded that "'the motion and the files and records of the case conclusively show that [Bemis] is entitled to no relief.'" See Holloway v. United States , 960 F.2d 1348, 1351 (8th Cir

. 1992) ( quoting 28 U.S.C. § 2255). We address each of Bemis's claims i n turn.
First, Bemis contends that his convictions together with civi l for feitures of his property violated the Double Jeopardy Clause' s prohib ition against multiple punishments for the same offense. W e conc lude, however, that this claim is foreclosed by United States v

. Ursery , 116 S. Ct. 2135, 2147-49 (1996), and United States v. One 197 0 36.9' Columbia Sailing Boat , 91 F.3d 1053, 1056-57 (8th Cir. 1996).

Seco nd, Bemis argues that his attorney was constitutionall y ineffective, because he incorrectly advised Bemi s regarding Bemis's likely Guidelines sentence and failed to move to withdraw Bemis's guilty ple a after learning that the presentence report recom mended a higher Guidelines
sen tence. It is unnecessary to reach a decision as to his attorney' s competency because we conclude that Bemis failed to establish prejudice. A challenge to a guilty plea on the grounds of ineffective assistance of
counse l requires a showing of reasonable probability that, but fo r counsel's errors, an individual would not have pleaded guilty and instead would have insisted on going to trial. See Schone v. Purkett , 15 F.3d 785 , 789 (8 th Cir. 1994). There was no such showing based on Bemis' s contentions because t he District Court told Bemis during his plea hearing that the sentencing r ecommendation in the plea agreement was not binding, that the statutory maximum sentence for his offe nses was twenty years, and that the Guidelines would be used to

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determine his sentenc e. Cf. United States v. Burney , 75 F.3d 442, 444-45 (8th Cir. 1996) (defendant's misunderstanding of application of Guidelines to his sentencing does not constitute a fair and just reason fo r withdrawing a guilty plea, even where such misun derstanding is based on an erroneous estimation by defense counsel, so long as defendant was told the range of potential pu nishment and that the Guidelines would be applied to det ermine his sentence). Additionally, both the plea agreement and th e prosec utor's comments at the plea hearing informed Bemis that hi s Gui delines sentence could be affected by the results of the presentenc e investigation. Cf. United States v. Ludwig , 972 F.2d 948, 950-51 (8th Cir

. 1992) (fact that sent ence recommended in presentence report substantially exceeded both prosecutor's and defense counsel's calculations of likel y sentence at time of plea agreement did not warrant withdrawal of plea wher e plea agreement was specific in its terms and promised no certain sentencin g range).
Third, Bemis contends that his attorney developed a conflict o f interest when he accepted illegal drug proceeds as payment for Bemis' s legal fees. The gove rnment argues that this claim fails because there is
no evi dence that Bemis's attorney was ever criminally investigated fo r accepting the proceed s. See Cuyler v. Sullivan , 446 U.S. 335, 350 (1980) (to establish ineffective assistance of counsel claim, defendant must show actual conflict of interest that adversely affected his attorney' s performance). Howeve r, Bemis offered evidence that an informant gave the govern ment a statement describing how the informant retrieved the dru g proceeds for Bemis's attorney and that Bemis's attorney was aware of the informant's statement to the government. We believe this evidence at leas t raises the possibility that, as Bemis contends, his attorney encouraged hi m to plead guilty to av oid government inquiry about the source of the fees,
see 21 U.S.C. § 881(a)(6) (1994) (forfeiture of drug proceeds); Unite d St ates v. Bowie , 892 F.2d 1494, 1500 (10th Cir. 1990) (counsel' s performance

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is adv ersely affected by actual conflict of interest if defendant' s interests are inherently in conflict with counsel's personal interests), and we do not believe the affidavit of Bemis's attorney was sufficient to negate this possibility. Consequently, we remand this claim for a n evidentiary hearing. See Bowie , 892 F.2d at 1500-02 (10th Cir. 1990) (whe n district court fails to conduct inquiry into possible conflicts, court of appeals should remand for evidentiary hearing if it can discern from the
reco rd the possibility of actual conflict with adverse effects). O n remand, the District Court should grant Bemis's request for discovery of his attorney's files.

Bemis also argues that the District Court impermissibl y "participated" in plea discussions; that his att orney, the prosecutor, the probation officer, an d the District Court "promised" him a seventy-eightmonth sentence; that the District Court denied him the opportunity to repl y to the government's r esponse; and that the District Court should not have
ac cepted the government's out-of-time response. These arguments ar e without merit.
According ly, we reverse as to Bemis's claim that his attorney had a conflict of interest, and remand for an evidentiary hearing. As to Bemis' s
rem aining claims, we affirm the District Court's denial of section 225 5 relief.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.