IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50302 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD YOUNG ALFARO,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-95-CA-574 & SA-88-CR 145(1)) _______________________________________________________ December 4, 1996

Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

Richard Alfaro pleaded guilty to one count of heroin

distribution. His sentence was affirmed by this court in United

States v. Alfaro,

(5th Cir. 1990). In the pending

proceeding, Alfaro seeks relief under

, alleging

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. ineffective assistance of counsel. The district court denied

relief, and we affirm.

To establish ineffective assistance of counsel, the

convicted defendant must show that counsel’s performance was

deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington,

(1984). As

to the prejudice requirement, the defendant must show a

reasonable probability that but for the counsel’s errors, the

result of the proceeding would have been different.

.

Alfaro claims that his counsel was ineffective because of a

conflict of interest. The alleged conflict is that Alfaro’s

counsel also represented his brother in a related proceeding. In

a conflict of interest situation, prejudice is only presumed if

the defendant demonstrates the counsel “actively represented

conflicting interests” and that “an actual conflict of interest

adversely affected his lawyer’s performance.”

at 692

(quoting Cuyler v. Sullivan,

(1980)).

Alfaro does not make the required showing of an actual conflict

of interest necessary for a presumption of prejudice, and does

not meet Strickland’s prejudice requirement in the absence of

such a presumption.

Alfaro’s brother was prosecuted in a separate proceeding.

The brother was charged with being a felon in possession of a

firearm, while Alfaro was charged in a six-count indictment with

2 committing various drug-related crimes. Alfaro did not

demonstrate that his counsel’s defense of his brother was

antagonistic to Alfaro’s defense. The charges against the

brother were dropped after the district court granted a motion to

suppress. The mere fact that Alfaro’s counsel may have devoted

time to another case is not sufficient to establish prejudice or

an actual conflict of interest. To hold otherwise would mean

that all full-time criminal defense attorneys operate under such

a conflict.

Alfaro suggests in his reply brief that his counsel told him

that if he did not plead guilty his brother faced indictment and

a possible life sentence. The record indicates that the brother

was already under indictment at the time, for a single count of

being a felon in possession of a firearm. There is no evidence

of a threat by the government to bring additional charges against

the brother. Further, at the guilty plea hearing Alfaro swore

that no one had threatened, coerced or forced him to plead

guilty.

Alfaro complains that the district court failed to make an

appropriate inquiry into potential conflicts of interest and

advise him of his right to separate representation under FED. R.

CRIM. P. 44(c). This rule only applies where defendants have

been jointly charged under Rule 8(b) or joined for trial under

Rule 13. These circumstances were not present here.

3 Alfaro next argues that his counsel was ineffective because

he incorrectly assured him that the drug quantity used for

calculating Alfaro’s sentence would be limited to the drugs

referenced in the fourth count of the indictment, the count to

which Alfaro pleaded guilty. The district court, correctly, did

not limit the drug quantity to the heroin referenced in this one

count. See United States v. Hoster,

(5th

Cir. 1993).

Assuming that defense counsel made the assurance to Alfaro

that he now claims, the record belies any claim of prejudice. As

represented at the guilty plea hearing the plea agreement

provided that “Defendant acknowledges that all facts and

circumstances underlying the indictment will be included in the

presentence report.” At this hearing, Alfaro acknowledged to the

court his understanding that a sentence would be imposed under

the United States Sentencing Guidelines, that the court would

consider the presentence report in arriving at a sentence, and

that he faced a sentence of up to forty years. He also

acknowledged that no one had “made any prediction, prophesy, or

promise to you as to what your sentence will be in this matter.”

The court later indicated that it would take up at the time of

sentencing whether heroin in addition to that charged in count

four would be counted for sentencing purposes.

4 At the first sentencing hearing on September 15, 1989,

Alfaro heard his counsel and government counsel argue over

whether the drug quantity should be limited to the one count.

Hence, he understood the issue was in dispute. Yet he made no

attempt to withdraw his guilty plea, nor did he indicate to the

court that he had been misinformed by his counsel. At the second

sentencing hearing on September 28, 1989, Alfaro acknowledged

that he was familiar with the presentence report and had

discussed it with his counsel. The report calculated the drug

quantity by including amounts in addition to the count four

heroin. Consistent with the presentence report’s drug quantity

calculation, Alfaro was sentenced to 210 months, far below the

maximum sentence the court advised him he was facing when he

pleaded guilty.

Alfaro also contends that his counsel was ineffective in

failing “to bring out important guideline issues” regarding his

upward adjustment in sentencing for possession of a firearm

during the commission of the offense. His counsel did object, at

the sentencing hearing and to the probation officer, to this

upward adjustment. As Alfaro fails to specify what else his

counsel should have done, we conclude that counsel was not

ineffective with respect to this upward adjustment. To the

extent that Alfaro is arguing that the district court erred in

its technical application of the Sentencing Guidelines, such

5 claims are not cognizable in a habeas proceeding. United States

v. Segler,

(5th Cir. 1994).

Alfaro suggests that the government breached the plea

agreement by agreeing to drop the weapons count while planning to

seek an upward adjustment for possession of a firearm on the

remaining count to which he pleaded guilty. The probation

officer and district court were entitled to consider in

sentencing facts or conduct forming the basis of counts dismissed

pursuant to a plea agreement. U.S.S.G. § 6B.1.2(a); United

States v. Ashburn,

(5th Cir. 1994) (en banc),

cert. denied,

(1995). There is no evidence that

the government promised not to seek an upward adjustment to

sentencing on the remaining count based on possession of a

firearm. On the contrary, the agreement itself provided that all

facts and circumstances underlying the indictment would be

included in the presentence report.

Alfaro finally claims that his counsel was ineffective for

failing to raise a double jeopardy defense in light of the civil

forfeiture of two of his vehicles. Such a forfeiture does not

constitute punishment for double jeopardy purposes. United

States v. Ursery,

(1996). Alfaro was not

prejudiced by his counsel’s failure to raise a meritless claim.

AFFIRMED.

6