United States v. Green ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 99-40342
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VANCHIESE GREEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:98-CR-98-1)
_________________________________________________________________
November 5, 1999
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In contesting his 151—month sentence for possession of cocaine
with intent to distribute, Vanchiese Green presents three issues.
Each is without merit.
Green was ordered to appear in district court on 23 November
1998; he failed to do so; an arrest warrant was issued; he
surrendered two days later; and he subsequently pleaded guilty.
The presentence report (PSR) recommended that his offense level be
increased two levels for obstruction of justice (for failing to
appear); and that he not receive an acceptance of responsibility
*
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
adjustment, because of the failure to appear and for testing
positive for drug use twice while on bond.
Two days before sentencing, Green’s counsel moved to withdraw,
based on Green “wish[ing] to present a defense to the enhancement
... [for] failing to appear which would place ... counsel in direct
conflict” with Green. The motion, which did not indicate precisely
how a conflict would be created, was denied. At sentencing, the
enhancement objection was overruled; the downward adjustment
request, rejected.
Green contends that the court erred in denying the withdrawal
motion. The denial is reviewed for abuse of discretion. United
States v. Medina, 161 F.3d 867, 870 (5th Cir. 1998), cert. denied,
___ U.S.___, 119 S. Ct. 1344 (1999).
Green maintains that a conflict existed because he and his
attorney had different recollections about what date Green was told
to appear. “A conflict exists when defense counsel places himself
in a position conducive to divided loyalties.” United States v.
Carpenter, 769 F.2d 258, 263 (5th Cir. 1985). In Carpenter, the
conflict was that defendant’s attorney had, as assistant district
attorney, negotiated a plea agreement with one of the prosecution’s
witnesses. Id. at 262. Carpenter’s counsel vigorously cross-
examined this witness, notwithstanding the claimed conflict. Id.
at 262. We held that counsel had not been placed in a position
conducive to divided loyalties. Id. at 263.
Similarly, Green’s counsel vigorously presented Green’s
defense that he had unwittingly missed his court date. Counsel
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presented Green’s testimony, and the corroborative testimony of his
mother and girlfriend, that Green received misinformation about his
court date, through his girlfriend, from counsel’s office. Counsel
did not contradict this testimony, even though she had a different
recollection. Therefore, as in Carpenter, there is no conflict —
counsel was not placed in a position conducive to divided
loyalties.
Additionally, “[w]hen filing a motion to withdraw, an attorney
should provide a detailed explanation of the reasons why [she]
believes that ‘good cause’ exists for [her] to withdraw”. United
States v. Wild, 92 F.3d 304, 307 (5th Cir.) (citation omitted),
cert. denied, 519 U.S. 1018 (1996). The motion did not meet this
requirement, asserting merely that presenting Green’s defense
“would place [her] in direct conflict” with him. Accordingly, the
court did not abuse its discretion in denying the withdrawal
motion.
Next, Green challenges the finding that he obstructed justice
by failing to appear. The finding is reviewed only for clear
error. E.g., United States v. Cisneros, 112 F.3d 1272, 1279 (5th
Cir. 1997). This review is even more deferential when, as here,
the finding rests, at least in part, on credibility determinations.
United States v. Powers, 168 F.3d 741, 752-53 (5th Cir.), cert.
denied, ___ U.S. ___, 1999 WL 715773 (12 Oct. 1999).
The court found that Green was not credible because, when
asked the number of times a bench warrant had issued for him, Green
was not truthful. He testified that this was the second time; the
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PSR indicated otherwise. Accordingly, the court did not clearly
err.
Finally, Green claims that the court erred in denying the
acceptance of responsibility adjustment. The finding is upheld
unless it was “without foundation” — a standard of review even more
deferential than that for clear error. E.g., United States v.
Anderson, 174 F.3d 515, 525 (5th Cir. 1999). Obviously, the denial
because of drug use while on bond is not reversible error. See
United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996), cert.
denied, 519 U.S. 1156 (1997); United States v. Rickett, 89 F.3d
224, 226-27 (5th Cir.), cert. denied, 519 U.S. 1000 (1996); United
States v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990).
Additionally, Green’s failure to appear is sufficient support for
the finding. United States v. Lujan-Sauceda, 187 F.3d 451, (5th
Cir. 1999).
AFFIRMED
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