Esparza-Serrano

dissenting.

I agree with the majority’s thorough and excellent legal analysis of the trial court’s duty to inquire into a potential conflict of interest when it knows or reasonably should know that a particular conflict of interest exists. I also agree with the majority that even if the district court failed to properly inquire into counsel’s conflict of interest in this case, automatic reversal is not required.

However, under the specific facts of this case, I cannot fault the district court’s discharge of its duty of inquiry. In response to Serrano’s initial letters alleging that counsel had “abandoned” him and asking for appointment of new counsel, the district court questioned Merryman at the April 2, 2001, hearing, appointed new counsel, and postponed sentencing. After receiving Serrano’s letter alleging that Merryman, now no longer Serrano’s counsel, had improperly represented a co-defendant at the time Serrano’s plea was entered, the district court granted a continuance at the request of Serrano’s new counsel, Mr. Perez, in order to permit counsel to address the alleged conflict of interest. At the final sentencing hearing on July 9, 2001 the district court began by…

*112 MEMORANDUM **

Silvestre Esparza-Serrano appeals his conviction for distribution of methamphetamine, in violation of 21 U.S.C. § 841 (a)(1). Serrano was convicted and sentenced after he entered a plea of guilty. He now seeks to withdraw his guilty plea on the ground that his counsel at the time he entered his guilty plea was operating under a conflict of interest, that he subsequently alerted the district court to this conflict, but that the district court failed to fulfill its duty to inquire into the conflict. We have jurisdiction pursuant to 28 U.S.C. § 1291 . Serrano is not entitled to the automatic reversal of his conviction that he seeks, but he is entitled to a remand so that the district court can conduct an appropriate inquiry into the alleged conflict of interest and, in light of that inquiry, decide whether he should be allowed to withdraw his guilty plea. Accordingly, we remand.

I. BACKGROUND

In April 2000, Serrano entered a plea of guilty to one count of distribution of methampetamine. At the time he entered his plea, he was represented by retained counsel, Lawrence Merryman. As recited in the plea agreeement, Serrano faced a statutory mandatory minimum of ten…