United States v. Alvarez , 96 F. App'x 166 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-5006
MIGUEL ANGEL LARA ALVAREZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-01-130-FO)
Submitted: April 30, 2004
Decided: May 19, 2004
Before MICHAEL and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, dismissed in part by unpublished per curiam opin-
ion.
COUNSEL
Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. ALVAREZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Miguel Angel Lara Alvarez pled guilty to participating in a con-
spiracy to distribute and possess with intent to distribute at least 500
grams of cocaine and at least five grams of cocaine base (crack), 21
U.S.C. § 846 (2000), and to possession of a firearm in furtherance of
a drug conspiracy, 18 U.S.C. §§ 924(c), 2 (2000). He was sentenced
to a term of 151 months for the conspiracy count and a consecutive
sixty months for the § 924(c) count. Alvarez seeks to appeal his sen-
tence, alleging that the district court’s sentencing decisions were
affected by prosecutorial misconduct, that the district court erred in
denying him an adjustment for acceptance of responsibility and a
downward departure for aberrant behavior, U.S. Sentencing Guide-
lines Manual §§ 3E1.1, 5K2.20, p.s. (2001), and that the district court
erred in sentencing him at the high end of the guideline range. We
affirm in part and dismiss in part.
Alvarez waived his right to appeal his sentence on any grounds
except an upward departure, prosecutorial misconduct, or ineffective
assistance of counsel. A defendant may waive the right to appeal if
that waiver is a knowing and intelligent decision to forgo the right to
appeal. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th
Cir. 1995). Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during a Fed. R. Crim. P.
11 colloquy, the waiver is both valid and enforceable. United States
v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991); United States v.
Wiggins, 905 F.2d 51, 53 54 (4th Cir. 1990). The waiver provision
does not prevent Alvarez from challenging his sentence based on his
claim of prosecutorial misconduct. In addition, because the joint
appendix does not contain a transcript of the guilty plea hearing and
neither Alvarez nor the government states that the district court
addressed the waiver during the Rule 11 colloquy, we are unable to
determine whether Alvarez’ waiver is enforceable as to the remaining
issues. Therefore, we will address all the issues on the merits.
UNITED STATES v. ALVAREZ 3
Alvarez and three co-defendants were arrested on September 28,
2001, during a controlled buy of three kilograms of cocaine at co-
defendant Jose Meza’s store in Robeson County, North Carolina.
Alvarez was the person who brought the cocaine to the store. The
investigating agents seized a total of 2981.5 grams of cocaine, 25.7
grams of crack, and three firearms from the store and the vehicles
used by the conspirators.
In March 2002, the government interviewed Aaron Godwin, who
was in custody on unrelated drug charges, and who shared a jail cell
with Alvarez for a time. Godwin told investigators that his own sup-
plier, Pammy Gail Cummings, obtained her cocaine from Alvarez. He
said that, over a twelve-week period, Alvarez supplied Cummings and
her son with a total of 180 kilograms of cocaine. Godwin also stated
that Alvarez had $500,000 stored at Cummings’ residence and that
Cummings used some of this money to hire Alvarez’ attorney, Irving
Joyner. Based on Godwin’s information, the probation officer revised
Alvarez’ presentence report in May 2002 to include the 180 kilograms
of cocaine as relevant conduct.
Joyner represented Cummings in early May at a detention hearing
following her arrest on federal firearms charges. On May 14, 2002,
the government moved to continue Alvarez’ sentencing on the ground
that Joyner had a potential conflict of interest. At a hearing on May
15, Joyner denied any conflict of interest and said both Alvarez and
Cummings had denied the allegations made by Godwin. He also said
that he had been hired and paid by Alvarez’ family. He submitted a
waiver form Alvarez had signed. The district court continued sentenc-
ing and invited the government to file a motion to disqualify Joyner.
On July 31, 2002, although Joyner had by then withdrawn from repre-
senting Cummings, the government moved to disqualify Joyner based
on his representation of both Alvarez and Cummings and because of
uncertainty about the source of the funds used to pay Joyner. The
government also informed the court that Alvarez had failed a poly-
graph examination, showing deception on the two relevant questions:
(1) whether he ever had any narcotics-related relationship with Cum-
mings, and (2) whether Cummings procured his legal representation,
either directly or indirectly.
At a hearing on August 5, 2002, the district court addressed the
government’s motion to disqualify Joyner. Pammy Gail Cummings
4 UNITED STATES v. ALVAREZ
testified that neither she nor her son had a drug relationship with
Alvarez. She denied giving his family money to pay his attorney. She
also said that Alvarez did not keep any money at her house. She said
she had met Aaron Godwin, but that neither she nor her son sold
cocaine to him, and that he had never been to her house or her store.
Because both Alvarez and Cummings had denied under oath that they
had a narcotics relationship and that Cummings had supplied the
money for Alvarez’ defense attorney, the district court found that no
conflict of interest was apparent.
At Alvarez’ sentencing in December 2002, Godwin testified that he
bought cocaine from Cummings and saw Alvarez deliver ten to fif-
teen kilograms of cocaine to Cummings’ house three or four times.
Under questioning by the court, Godwin testified that Alvarez deliv-
ered cocaine to Cummings every week or two weeks. Once the
cocaine was wrapped in plastic on a pallet of merchandise for Cum-
mings’ store and, on three or four occasions, Alvarez brought ten
"mud buckets" each containing several kilograms of cocaine. Under
cross-examination, Godwin said he helped Cummings cut up and
weigh the cocaine, but admitted that he might not have mentioned
these kilograms in his prior statement to authorities and that they were
not included in his own relevant conduct. He denied reading Alvarez’
presentence report while they were confined together.
Alvarez testified that he did not know Cummings or store money
at her house and had never seen Godwin until they were confined
together after his arrest. He denied delivering cocaine to Cummings
and said the only cocaine delivery he ever made was the one that
resulted in his arrest. Under cross-examination, he admitted that he
might have seen Cummings at the garage where he worked. He
repeated the assertions he made during the polygraph test that he had
no narcotics-related dealings with Cummings and did not receive
money from her for his legal defense.
Alvarez’ attorney then introduced four affidavits from inmates who
had been confined in the New Hanover Jail with him and Godwin, all
of whom stated that Godwin had secretly read Alvarez’ presentence
report and made notes on the information in it. Curtis Quinn and
Terry Highsmith also stated that Godwin said he intended to implicate
Alvarez in drug dealing to reduce his own sentence. The government
UNITED STATES v. ALVAREZ 5
submitted a later letter from Terry Highsmith stating that what he said
in his affidavit was true but that he had since heard that Aaron God-
win bought cocaine from Miguel Alvarez’ organization through Cum-
mings. He said he thought that Alvarez had lied to everyone who
signed an affidavit on his behalf, or at least had not told the whole
truth.
The district court decided that Alvarez’ testimony in combination
with the affidavits cast doubt on Godwin’s motives. The court there-
fore sustained Alvarez’ objections to inclusion of the 180 kilograms
of cocaine Godwin ascribed to him. The court found the offense level
to be 32, and declined to give Alvarez an adjustment for acceptance
of responsibility, which resulted in a guideline range of 121-151
months. Although Alvarez had indicated in his objections to the pre-
sentence report that he would seek a minor role adjustment and a
downward departure for aberrant behavior, he did not request a down-
ward departure or a mitigating role adjustment in a written motion or
offer any argument on these issues at the sentencing hearing despite
the district court’s invitation to do so. The court imposed a sentence
of 151 months, with a consecutive five-year sentence for the § 924(c)
conviction.
On appeal, Alvarez first argues that the government’s "persistent
efforts" to disqualify Joyner constituted prosecutorial misconduct
because Joyner represented Cummings on unrelated matters and
because Godwin’s allegations were fabricated. The Sixth Amendment
right to the effective assistance of counsel includes the right to repre-
sentation that is free from conflicts of interest. Cuyler v. Sullivan, 446
U.S. 335, 345-50 (1980). "[W]hen a conflict situation becomes appar-
ent to the government, the government has a duty to bring the issue
to the court’s attention and, if necessary, move for disqualification of
counsel." United States v. Tatum, 943 F.2d 370, 379-80 (4th Cir.
1991). A trial court has the responsibility to investigate apparent con-
flicts, advise the defendant personally, and receive the defendant’s
waiver if he wishes to continue with his current counsel. Id. at 379.
Improper conduct by the prosecutor merits reversal of a conviction
when the conduct actually was improper and prejudicially affected the
defendant’s substantial rights so as to deprive him of a fair trial or,
in this case, a fair sentencing. See United States v. Golding, 168 F.3d
6 UNITED STATES v. ALVAREZ
700, 702 (4th Cir. 1999) (citing United States v. Chorman, 910 F.2d
102, 113 (4th Cir. 1990)).
Alvarez contends that he was prejudiced because the government’s
efforts to disqualify Joyner "probably" caused the district court to
infer that he had withheld information and to disbelieve his version
of events with respect to disputed sentencing issues.
However, the government had a duty to bring to the district court’s
attention the potential conflict of interest arising from Joyner’s repre-
sentation of both Alvarez and Cummings. Tatum, 943 F.2d at 379-80.
Once Godwin made the allegations that Cummings bought cocaine
from Alvarez and that Cummings allegedly paid Joyner to represent
Alvarez, and the government learned that Joyner was representing
Cummings in state court, the government was bound to inform the
district court of the situation. The government moved to disqualify
Joyner, at the court’s request, to protect Alvarez’ interest in having
conflict-free representation. We conclude that the government’s con-
duct was not improper.
Because Alvarez failed to present evidence challenging the recom-
mendation in the presentence report concerning his role in the
offense, the district court was free to adopt the finding recommended
in the presentence report without further explanation. See United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998). The district court
adopted the probation officer’s suggestion that Alvarez’ role was not
minor, even if he participated only in one transaction, because his
delivery of the drugs was essential to the drug transaction. This find-
ing was not clearly erroneous. United States v. Akinkoye, 185 F.3d
192, 202 (4th Cir. 1999) (test is whether defendant’s conduct was
essential or material to commission of offense); United States v.
Edwards, 188 F.3d 230, 238 (4th Cir. 1999) (same).
The district court’s decision not to depart downward is not review-
able on appeal absent a showing that the court’s decision was based
on a failure to understand its legal authority to depart. United States
v. Carr, 271 F.3d 172, 176-77 (4th Cir. 2001). Alvarez has not made
this showing. Consequently, this portion of the appeal must be dis-
missed.
UNITED STATES v. ALVAREZ 7
Finally, Alvarez argues that the district court erred in sentencing
him at the top of the guideline range in light of his minimal participa-
tion in the conspiracy. However, the district court’s decision to
impose a sentence at any particular point within a correctly calculated
guideline range is generally not reviewable. United States v. Pitts, 176
F.3d 239, 248-49 (4th Cir. 1999). A claim that the sentence was
imposed in violation of law is reviewable, id. at n.6, but Alvarez does
not make this claim and the record would not support it.
We therefore affirm the sentence imposed by the district court but
dismiss the challenge to the district court’s decision not to depart and
to impose a sentence at the top of the guideline range. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
DISMISSED IN PART