UNITED STATES of America, Plaintiff-Appellee, v. Duane Anthony CALVO, Defendant-Appellant, 226 F. App'x 769

MEMORANDUM Appellant Duane Calvo entered a guilty plea for attempted possession of methamphetamine hydrochloride with intent to distribute. He was sentenced to 180 months of incarceration. On appeal and through a different attorney, Calvo now raises nine issues and sixteen sub-issues challenging his sentence. We need not address all of the issues raised by Calvo, however, because we conclude that the conflict of interests created by Calvo’s attorney’s dual representation of both Calvo and the confidential informant (“Cl”) who assisted in Calvo’s arrest requires resentencing.

The record is “sufficiently developed” to permit review of the dual representation and conflicting interests. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1060 (9th Cir.2000). Calvo’s arrest stemmed from information from the Cl who told Drug Enforcement Agency (“DEA”) officials that Calvo had contacted the Cl in an attempt to receive “ice,” a form of methamphetamine. Through an arrangement by the DEA, the Cl later met with Calvo at a hotel where the Cl offered him two kilograms of look-alike methamphetamine.

During Calvo’s sentencing, the sentencing judge became concerned because “there’s a certain arbitrariness when the amount of drug dictates the penalty, and the amount originates with law enforcement.” The district court attempted to determine the amount of drugs that Calvo had received from the Cl in the past and whether that amount triggered the statutory minimum sentence. See 21 U.S.C. § 841(b) (2006). At that point, Calvo’s attorney disclosed that he was aware of Calvo’s past interactions with the Cl because he was simultaneously representing the Cl.

Calvo’s attorney stated that he had seen the Cl “yesterday.” Because Calvo’s conviction and resulting sentence based on a large amount of ice would benefit the Cl’s ability to demonstrate substantial assistance to law enforcement and because any attempts to cross-examine the Cl could reduce the informant’s ability to demonstrate such assistance, Calvo’s attorney’s simultaneous representation of Calvo and the Cl constituted an active conflict of interest. See Washington v. Lampert, 422 F.3d 864, 872 (9th Cir.2005); United States v. Christakis, 238 F.3d 1164, 1168-69 (9th Cir.2001).

Calvo also established that the active conflict of interest had an adverse impact on his attorney’s performance. See id.; Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir.2006) (the defendant must show “that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests” (citations omitted)). Calvo’s attorney withdrew his objection to the quantity of ice Calvo had previously received from the Cl.

That withdrawal was based on the Cl’s previous testimony of an amount that triggered the statutory minimum sentence. Moreover, the district court acknowledged on the record that Calvo’s attorney could not cross-examine the Cl. Cross-examination would be the most effective means to dispute the drug quantity Calvo had previously received. Because Calvo’s attorney had an active conflict of interest that had an adverse impact on his performance, Calvo is entitled to resentencing. REMANDED for resentencing on an open record.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.