                                                                       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             This order and judgment is not binding precedent, except under the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


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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.


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      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




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