F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 8 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 98-7031 v. (D.C. CR-93-33-S) JOHN JOSEPH LUCAS, (Eastern District of Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. I. BACKGROUND
John Joseph Lucas was convicted by a jury of robbing a federally insured
financial institution, in violation of 18 U.S.C. § 2113(a), and using a firearm in
commission of a crime of violence, in violation of 18 U.S.C. § 924(c). The
district court sentenced him to 78 months on the robbery charge and 60 months on
the firearm charge, to be served consecutively. He appealed his convictions and
sentences to this court, alleging (1) that he was deprived of effective assistance of
counsel by the district court's denial of a motion for a continuance, and (2) that
the district court erred in admission of certain evidence. This court affirmed the
convictions and sentences. See United States v. Lucas , No. 94-7031, 1995 WL
8852 (10th Cir. Jan. 10, 1995). Through his trial and all subsequent appeals to
date, Mr. Lucas has been represented by count-appointed counsel, Gene Primomo.
In 1997, Mr. Lucas filed a motion to set aside the conviction on the 924(c)
charge in light of the decision in Bailey v. United States , 116 S.Ct. 501 (1995).
The district court granted the motion and vacated the conviction, concluding that
the Bailey decision established that the jury had been erroneously instructed as to
the elements of the § 924(c) offense.
In calculating Mr. Lucas' original sentence for the robbery charge under the
United States Sentencing Guidelines, the district court had accepted the
recommendation of the presentencing report not to impose the five-level increase
2 in the base offense level for brandishing a firearm. See U.S.S.G. §
2B3.1(b)(2)(C). This recommendation was made to avoid double counting as a
result of Mr. Lucas' separate conviction under § 924(c). See U.S.S.G. § 2K2.4,
cmt. n. 2. Having vacated Mr. Lucas' conviction on the §924(c) charge, the
district court ordered an amended presentencing report. The amended report
recommended imposing the five point increase in the offense level for Mr. Lucas'
robbery conviction because he brandished a gun during that offense.
Prior to his re-sentencing hearing, Mr. Lucas filed a pro se brief seeking
appointment of new counsel, alleging that on the basis of having previously
alleged his own ineffective assistance on appeal, Mr. Primomo, his lawyer, was
no longer competent, or was too conflicted, to represent him. The district court
found no basis for this assertion and thus denied the motion. Furthermore, Mr.
Lucas objected to the amended presentence report on the grounds that increasing a
sentence on the grounds of a conviction previously vacated would raise double
jeopardy and fundamental fairness concerns, and that there was insufficient
evidence to support the enhancement for brandishing a firearem. The district
court overruled that objection. It found by a preponderance of the evidence that
Mr. Lucas had brandished a gun during the offense, and that the five point
increase in the offense level was thus warranted. Mr. Lucas' sentence on the
robbery charge was amended accordingly.
3 Mr. Lucas now appeals on the grounds that the district court erred in not
further investigating the alleged conflict between Mr. Lucas and his lawyer and
that Mr. Primono's representation of him during the re-sentencing was ineffective.
He seeks alternative kinds of relief: (1) appointment of a new lawyer on appeal;
or, (2) vacation of his sentence, with remand for re-sentencing and representation
by different counsel. Mr. Lucas’ lawyer, Mr. Primomo, has filed a motion to
withdraw supported by a brief in accordance with Anders v. California , 386 U.S.
738 (1967). His brief argues that any appeal from the re-sentencing would be
frivolous.
We grant his motion and affirm.
II. DISCUSSION
We begin with the argument that the district court erred in finding no
conflict of interest between Mr. Lucas and Mr. Primomo.
A. Alleged Conflict of Interest
“In reviewing a ineffective assistance of counsel claim based upon a
conflict of interest, we review the district court’s determination of whether an
actual conflict existed de novo, and we review the district court’s factual findings
under a clearly erroneous standard.” United States v. Gallegos, 108 F.3d 1272,
4 1279 (10th Cir. 1997).
This Court has acknowledged that an attorney may abandon his duty of
loyalty to his client through a variety of conflicts, including those engendered by
multiple representation, by an attorney’s loyalty to an employer or to the
government, and by the attorney’s personal interests. Osborn v. Shillinger, 861
F.2d 612, 625 (10th Cir. 1988). “Whether the attorney is influenced by loyalties
to other defendants, third parties, or the government, ‘if [he] entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then there has
been a denial of Sixth Amendment rights.’” Osborn v. Shillinger, 861 F.2d 612,
625 (10th Cir. 1988) (quoting United States v. Cronic, 466 U.S. 648, 659
(1984)).
Here, Mr. Lucas’s allegation that Mr. Primomo had a conflict of interest is
based on Mr. Primomo’s contention in the previous appeal that, as a result of the
district court’s refusal to grant a continuance, he was unprepared to adequately
represent his client. We rejected that argument in our prior order and judgment
in this case. See Lucas, 1995 WL 8852, at **1 (“Mr. Lucas has failed to
demonstrate that his counsel's performance fell below an objective standard of
reasonableness or that the outcome might have been different if not for counsel's
inadequacy.”). Moreover, until Mr. Lucas’s pro se motion before the re-
sentencing hearing, no one had alleged that Mr. Primomo had ineffectively
5 assisted Mr. Lucas because of a conflict of interest. To the contrary, Mr.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 8 1999 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 98-7031 v. (D.C. CR-93-33-S) JOHN JOSEPH LUCAS, (Eastern District of Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. I. BACKGROUND
John Joseph Lucas was convicted by a jury of robbing a federally insured
financial institution, in violation of 18 U.S.C. § 2113(a), and using a firearm in
commission of a crime of violence, in violation of 18 U.S.C. § 924(c). The
district court sentenced him to 78 months on the robbery charge and 60 months on
the firearm charge, to be served consecutively. He appealed his convictions and
sentences to this court, alleging (1) that he was deprived of effective assistance of
counsel by the district court's denial of a motion for a continuance, and (2) that
the district court erred in admission of certain evidence. This court affirmed the
convictions and sentences. See United States v. Lucas , No. 94-7031, 1995 WL
8852 (10th Cir. Jan. 10, 1995). Through his trial and all subsequent appeals to
date, Mr. Lucas has been represented by count-appointed counsel, Gene Primomo.
In 1997, Mr. Lucas filed a motion to set aside the conviction on the 924(c)
charge in light of the decision in Bailey v. United States , 116 S.Ct. 501 (1995).
The district court granted the motion and vacated the conviction, concluding that
the Bailey decision established that the jury had been erroneously instructed as to
the elements of the § 924(c) offense.
In calculating Mr. Lucas' original sentence for the robbery charge under the
United States Sentencing Guidelines, the district court had accepted the
recommendation of the presentencing report not to impose the five-level increase
2 in the base offense level for brandishing a firearm. See U.S.S.G. §
2B3.1(b)(2)(C). This recommendation was made to avoid double counting as a
result of Mr. Lucas' separate conviction under § 924(c). See U.S.S.G. § 2K2.4,
cmt. n. 2. Having vacated Mr. Lucas' conviction on the §924(c) charge, the
district court ordered an amended presentencing report. The amended report
recommended imposing the five point increase in the offense level for Mr. Lucas'
robbery conviction because he brandished a gun during that offense.
Prior to his re-sentencing hearing, Mr. Lucas filed a pro se brief seeking
appointment of new counsel, alleging that on the basis of having previously
alleged his own ineffective assistance on appeal, Mr. Primomo, his lawyer, was
no longer competent, or was too conflicted, to represent him. The district court
found no basis for this assertion and thus denied the motion. Furthermore, Mr.
Lucas objected to the amended presentence report on the grounds that increasing a
sentence on the grounds of a conviction previously vacated would raise double
jeopardy and fundamental fairness concerns, and that there was insufficient
evidence to support the enhancement for brandishing a firearem. The district
court overruled that objection. It found by a preponderance of the evidence that
Mr. Lucas had brandished a gun during the offense, and that the five point
increase in the offense level was thus warranted. Mr. Lucas' sentence on the
robbery charge was amended accordingly.
3 Mr. Lucas now appeals on the grounds that the district court erred in not
further investigating the alleged conflict between Mr. Lucas and his lawyer and
that Mr. Primono's representation of him during the re-sentencing was ineffective.
He seeks alternative kinds of relief: (1) appointment of a new lawyer on appeal;
or, (2) vacation of his sentence, with remand for re-sentencing and representation
by different counsel. Mr. Lucas’ lawyer, Mr. Primomo, has filed a motion to
withdraw supported by a brief in accordance with Anders v. California , 386 U.S.
738 (1967). His brief argues that any appeal from the re-sentencing would be
frivolous.
We grant his motion and affirm.
II. DISCUSSION
We begin with the argument that the district court erred in finding no
conflict of interest between Mr. Lucas and Mr. Primomo.
A. Alleged Conflict of Interest
“In reviewing a ineffective assistance of counsel claim based upon a
conflict of interest, we review the district court’s determination of whether an
actual conflict existed de novo, and we review the district court’s factual findings
under a clearly erroneous standard.” United States v. Gallegos, 108 F.3d 1272,
4 1279 (10th Cir. 1997).
This Court has acknowledged that an attorney may abandon his duty of
loyalty to his client through a variety of conflicts, including those engendered by
multiple representation, by an attorney’s loyalty to an employer or to the
government, and by the attorney’s personal interests. Osborn v. Shillinger, 861
F.2d 612, 625 (10th Cir. 1988). “Whether the attorney is influenced by loyalties
to other defendants, third parties, or the government, ‘if [he] entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then there has
been a denial of Sixth Amendment rights.’” Osborn v. Shillinger, 861 F.2d 612,
625 (10th Cir. 1988) (quoting United States v. Cronic, 466 U.S. 648, 659
(1984)).
Here, Mr. Lucas’s allegation that Mr. Primomo had a conflict of interest is
based on Mr. Primomo’s contention in the previous appeal that, as a result of the
district court’s refusal to grant a continuance, he was unprepared to adequately
represent his client. We rejected that argument in our prior order and judgment
in this case. See Lucas, 1995 WL 8852, at **1 (“Mr. Lucas has failed to
demonstrate that his counsel's performance fell below an objective standard of
reasonableness or that the outcome might have been different if not for counsel's
inadequacy.”). Moreover, until Mr. Lucas’s pro se motion before the re-
sentencing hearing, no one had alleged that Mr. Primomo had ineffectively
5 assisted Mr. Lucas because of a conflict of interest. To the contrary, Mr.
Primomo had alleged in the direct appeal that it was a decision of the district
court (the denial of a motion for continuance) that rendered him unable to
effectively assist Mr. Lucas at trial. Far from establishing a conflict, the length
to which Mr. Primomo went in the appeal in representing Mr. Lucas – describing
his own performance as ineffective – indicates a willingness to zealously assist in
Mr. Lucas’s defense. Accordingly, the district court did not err in finding that
Mr. Primomo “did as good a jab [sic] as I know anybody could do.” Tr. of
Resentencing (January 30, 1998).
We therefore conclude that there was no conflict hindering Mr. Primomo’s
representation of Mr. Lucas.
B. Alleged Ineffective Assistance at Re-sentencing
To make a showing of ineffective assistance of counsel sufficient to merit
vacating a sentence, Mr. Lucas must show both that his counsel’s assistance was
deficient and that the deficiency was so serious as to prejudice the defense. See
Strickland v. Washington, 466 U.S. 668, 686 (1984). In the instant case, the only
two deficiencies suggested by Mr. Lucas and Mr. Primomo concern Mr.
Primomo’s failure to challenge the district court’s authority to increase the
offense level on resentencing. and Mr. Primomo’s failure to challenge the
6 evidence that Mr. Lucas brandished a gun during the robbery. The record does
not support the contention that Mr. Primomo was deficient in either instance.
As to the first alleged deficiency, we note that the district court’s authority
to increase the offense level on re-sentencing is established by United States v.
Smith, 116 F.3d 857 (10th Cir. 1997). We there held:
A sentence under the U.S. Sentencing Guidelines constitutes a sentencing package which takes into account all counts upon which the defendant has been convicted. When one of those counts is set aside or vacated, the district court is free to reconsider the sentencing package de novo unless the appellate court specifically limited the district court's discretion on remand.
Smith, 116 F.3d at 859. Because the district court was well within its discretion
in increasing the offense level of the robbery charge on re-sentencing., Mr.
Primomo’s failure to challenge the court’s authority did not constitute deficient
performance.
As to the second alleged deficiency – Mr. Primomo’s failure to make an
evidentiary objection, we note that the evidence that Mr. Lucas brandished a
firearm during the robbery was clearly sufficient to support the increase in the
offense level under U.S.S.G. § 2B3.1(b)(2)(C). The original presentence report
stated that “[Mr. Lucas] produced a blue steel revolver and laid it on the counter
at the victim teller’s window.” See Presentence Report (January 10, 1994). At
trial, the victim bank teller testified that Mr. Lucas had told her he had a gun and
7 then laid the gun on the counter before her. See Rec vol III at 18. This
testimony supports the district court’s finding that Mr. Lucas brandished a
firearm during the robbery. There is no indication that an objection from Mr.
Primomo at re-sentencing would have been merited. Thus. Mr. Primomo’s
failure to object to the evidence did not constitute deficient performance.
Accordingly, we GRANT Mr. Primomo’s motion to withdraw and AFFIRM
the order of the district court.
Entered for the Court,
Robert H. Henry Circuit Judge