IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-41219 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ROBERT CHARLES BORKERT,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-94-CV-286 - - - - - - - - - - February 20, 1998 Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Robert Charles Borkert, federal inmate #43568-079, appeals

the denial of his

motion. He argues that trial

counsel rendered ineffective assistance due to a conflict of

interest, stemming from the payment of legal fees by an

unindicted coconspirator, which adversely affected counsel’s

performance, specifically, counsel’s failure to advise Borkert

about the disadvantages and benefits of a plea offer. We have

carefully reviewed the record and the appellate arguments. In

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 96-41219 -2-

light of the credibility determinations by the court of the

testimony from Borkert and counsel, we conclude that the district

court did not err in concluding that Borkert failed to establish

an actual conflict of interest which adversely affected counsel’s

performance. See United States v. Placente,

(5th Cir. 1996).

AFFIRMED.