Opinion
Argued and Submitted June 8, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted, in the United States District Court for the Southern District of California, Irma E. Gonzalez, J., of conspiracy to distribute methamphetamine. Defendant appealed. The Court of Appeals held that failure of trial court to engage in the inquiry required by the rules of criminal procedure for a joint representation did not violate defendant's right to conflict-free representation.
Affirmed.
Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, District Judge, Presiding.
Before D.W. NELSON, FERNANDEZ, and RYMER, Circuit Judges.
ORDER VACATING SUBMISSION
We vacate submission of Perez-Aguilar's claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Jose Trinidad Perez-Aguilar appeals his conviction and sentence for one count of
Page 521.
conspiracy to distribute methamphetamine. See 21 U.S.C. §§ 841, 846.
Perez claims that his right to conflict-free representation was violated, even though he did not mention the matter until the trial was over. See United States v. Mett, 65 F.3d 1531, 1534-35 (9th Cir.1995). We disagree. He first points out that the district court did not engage in the inquiry required by Fed.R.Crim.P. 44(c). That is true, but the rule is essentially hortatory or prophylactic because a failure to follow it will not result in reversal, unless a defendant can show that his Sixth Amendment rights were violated. See United States v. Crespo de Llano, 838 F.2d 1006, 1013 (9th Cir.1987). Moreover, the Sixth Amendment itself does not require reversal simply because there is a potential conflict of interest. Absent a particular conflict, an inquiry need not even be initiated. See Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980); Crespo de Llano, 838 F.2d at 1012. Joint representation alone is certainly not enough. Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir.2001); United States v. Mims, 928 F.2d 310, 313 (9th Cir.1991).
On this record, Perez has failed to show that there was a conflict that actually affected his representation. See Mett, 65 F.3d at 1535-36; United States v. Finlay, 55 F.3d 1410, 1415 (9th Cir.1995); United States v. Sutton, 794 F.2d 1415, 1421 (9th Cir.1986). In fact, the record shows that Perez's counsel was highly effective in representing his interests. No evidence to the contrary appears in what is before us.
AFFIRMED on the issue of conflict of interest.
We vacate submission of Perez-Aguilar's claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) in an order filed concurrently with this disposition.