USA vs. Iglehart, (5th Cir. 2002)

Docket Number: 01-51285

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51285 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EUGENE IGLEHART, DefendantAppellant. Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-438-2 October 29, 2002 Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM: * Eugene Iglehart appeals his convictions and concurrent 188-month sentences imposed by the district court following his guilty pleas to charges of possession with intent to distribute more than five grams but less than fift y grams of cocaine base and possessio n of a firearm after having been convicted of a felony. Iglehart contends that his attorney had a conflict of interest caused by the fact that counselÂ’s partner represented IglehartÂ’s codefendant. He contends also that the district court was required to conduct an inquiry pursuant to F ED . R. C RIM . P. 44(c) to determine whether he had been informed of the conflict and whether he knowingly waived the conflict.

A potential conflic t o f interest arises when members of the same law practice represent persons indicted for the same offenses. S ee Burger v. Kemp , 483 U.S. 776, 783 (1987). However, prejudice is not automatically presumed in such cases, and the defendant must demonstrate that counsel actively represented conflicting in t erest s and that an actual conflict of interest adversely affected counselÂ’s performance. Id. Iglehart has not identified a defense, tactic, or strategy that counsel did not pursue o n his behalf. Iglehart has not shown an adverse effect from counselÂ’s performance. K emp , 483 U.S. at 783. The lack of a F E D . R. C RIM . P. 44(c) hearing does not provide grounds for automatic reversal.

United States v. Lyons , 703 F.3d 815, 820 (5th Cir. 1983). Iglehart contends that the district court erred in denying his motion to withdraw his plea to the cocaine charge. We review the district courtÂ’s denial of a motion to withdraw a plea for an abuse of discretion. United States v. Brewster , 137 F.3d 853, 857 (5th Cir. 1998).

A review of the record and consideration of the distric t co urtÂ’s findings on the pertinent factors demonstrates that Iglehart entered knowing and voluntary guilty pleas to the cocaine base and firearm charges and that the district court did not abuse its discretion by denying the motion to withdraw the plea. See id. ; United States v. Carr , 740 F.2d 339, 343-44 (5th Cir. 1984). IglehartÂ’s assertion of innocence on the cocaine base charge does not by itself warrant withdrawal. S ee Carr , 740 F.2d at 343-44.

Iglehart challenges his sentence of 188 months§ 922(g)(1) violation. Because Iglehart did not object in the district court to the sentencing error, our review is for plain error. U nited States v. Rodriguez , 15 F.3d 408, 414 (5th Cir. 1994). Under F E D . R. C RIM .

P. 52(b), we may correct forfeited errors only when the appellant shows that there is an error that is clear o r o bvious and that affects his substantial rights. U nited States v. Calverley , 37 F.3d 16 0 , 162-64 (5th Cir. 1994) ( en banc ) (citing United States v. Olano , 507 U.S. 725, 730-36 (1993)).

Iglehar t Â’s 188-month sentence exceeds the maximum sentence allowed by statute. U nited States v. Roberts , 203 F.3d 867, 868 (5th Cir. 2000). IglehartÂ’s appeal waiver does not preclude his challenge to a sentence above the statutory maximum. S ee United States v. Price , 95 F.3d 364, 367 (5th Cir. 1996). Accordingly, IglehartÂ’s sentence is vacated and his case is remanded to the district court for resentencing. United States v. Hernandez-Guevara , 162 F.3d 863, 878 (5th Cir. 1998).

AFFIRMED IN PART; VACATED AND REMANDED IN PART