                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           DEC 21 2004
                                     TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                Nos. 02-3307 and 02-3312
          v.                                                 (D. Kan.)
 DENNIS W. VAUGHAN III,                       (D.C. No. 01-CR-20111-01-KHV)

               Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before EBEL and TYMKOVICH , Circuit Judges, and          HEATON , ** District
Judge.



      Dennis Vaughan was convicted and sentenced for criminal contempt,

conspiracy to commit wire fraud, and money laundering. On appeal he argues

that (1) the district court erred by (a) imposing a sentence that exceeds the

statutory maximum because of a clerical error, and (b) failing to allow



      *
       This order and judgment is not binding precedent, except under the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.
      **
         Joe Heaton, District Judge, United States District Court for the Western
District of Oklahoma, sitting by designation.
substitution of counsel, and that (2) the government breached its plea agreement.

He also argues in supplemental briefing that (3) his sentence violated his Sixth

Amendment rights as interpreted by the Supreme Court in Blakely v. Washington,

__U.S. __,124 S. Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm but remand for

the limited purpose of correcting a clerical error related to sentencing.

                                   I. Background

      In the mid-1990s, Vaughan and others operated Parade of Toys, Inc., a

company that sold toy distributorships. Through Parade of Toys, Vaughan

devised a scheme to defraud potential customers: When potential customers

would inquire into purchasing a toy distributorship, Parade of Toys would refer

them to employees posing as past customers; these employees, after falsely

representing to the potential purchasers that the employees’ fictional

distributorships had performed well, would then recommend investing in one. In

this way, Parade of Toys fraudulently increased its sales.

      The Federal Trade Commission (FTC) filed a civil injunction against

Vaughan in 1997 in the District of Kansas. In 1998, the district court entered an

Order of Permanent Injunction banning Vaughan from promoting or selling

business ventures and requiring him to notify the FTC within 30 days of any

change in his business employment for a period of seven years. One year later,

however, Vaughan initiated a similar marketing scheme on behalf of a company


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called Government Careers Center, Inc.

      In early 2001, Vaughan was charged with criminal contempt in violation of

18 U.S.C. § 401 in the District of Kansas. The indictment alleged that Vaughan

had violated the 1998 injunction by selling business ventures and failing to notify

the FTC of his change of employment. Later in 2001, Vaughan was charged in a

separate indictment with conspiracy to commit wire fraud in violation of 18

U.S.C. §§ 1343 and 1371 and money laundering in violation of 18 U.S.C. § 1957.

      Vaughan retained as his criminal defense counsel a Philadelphia lawyer,

Walter Cohen. Cohen helped negotiate a plea agreement with the government

attorneys prosecuting each case. After Vaughan signed a written plea agreement,

separate plea hearings as to each case took place in district court on January 22,

2002. Cohen arranged for a local attorney, Glenn Froelich, to represent Vaughan

at both plea hearings in Kansas. Vaughan pled guilty to all charges at each

hearing. The district court later consolidated the two cases for sentencing.

      On April 26, 2002, Froelich filed two motions. First, he filed a motion on

Vaughan’s behalf to appoint a public defender to replace Cohen. The motion

alleged that Vaughan had been unable to communicate with Cohen since the

January plea hearing, and, although Cohen had been paid for legal services,

Vaughan was now indigent and could not pay future legal expenses. Second,

Froelich filed a motion on his own behalf to withdraw on the grounds that he (i)


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had not yet been paid for his legal services, (ii) did not believe he could

effectively represent Vaughan as solo counsel without Cohen’s assistance, and

(iii) was having trouble communicating with Cohen. The United States opposed

the motions.

      At a hearing on the motions, the court found, first, that Vaughan had

already paid Cohen for Cohen’s legal services and that Froelich’s failure to be

paid was therefore a civil matter between him and Cohen. Second, the court

found that Froelich was competent to represent Vaughan as co-counsel at

sentencing. Third, after a colloquy with Froelich, the court found that no

complete breakdown of communication that could not be cured had yet occurred

between Froelich and Cohen. To address the lack of communication between

Froelich and Cohen, the court ordered Cohen to meet with the Probation

Department if asked and to attend all future court proceedings in person. Because

Froelich and Cohen could continue to jointly represent Vaughan in future

proceedings, the court denied Froelich’s motion to withdraw and denied the

request for substitute counsel.

      Just before the sentencing hearing, Froelich moved on Vaughan’s behalf to

withdraw his guilty pleas. At a hearing on the motion, the court denied the

motion as a case “of buyer’s remorse” and proceeded to sentence Vaughan to

concurrent sentences of 60 months on four counts of criminal contempt, 60


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months on one count of conspiracy to commit wire fraud, and 84 months on three

counts of money laundering. In its judgment and commitment order, however, the

court erroneously recorded Vaughan’s 84-month sentence as being for each of the

counts.

      Vaughan then filed a pro se notice of appeal. Both Cohen and Froelich

filed motions to withdraw as counsel, which the court granted. A federal public

defender was appointed to represent Vaughan on appeal.

             II. Clerical Error in the Judgment and Commitment Order

      When a judgment and commitment order contains a clerical error, we may

remand for correction. Fed. R. Crim. Proc. 36 (“After giving any notice it

considers appropriate, the court may at any time correct a clerical error in a

judgment, order, or other part of the record, or correct an error in the record

arising from oversight or omission.”). Although at the hearing the district court

sentenced Vaughan to 60 months on one count of conspiracy to commit wire fraud

and 84 months on three counts of money laundering, the judgment and

commitment order mistakenly described Vaughan’s sentence as 84 months on all

four of the counts. Id. 1 The parties agree that this was an error by the court.

Given that the sentences will run concurrently rather than consecutively, a



      1
        The district court also sentenced Vaughan in the other case to 60 months
on the four counts of criminal contempt.

                                          -5-
correction will not reduce the amount of time Vaughan will spend in prison. We

nonetheless remand for the limited purpose of correcting the error.

                             III. Substitution of Counsel

      We review for abuse of discretion a district court’s refusal to substitute

counsel. United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). To warrant

a substitution of counsel, the defendant must show good cause, such as a conflict

of interest, a complete breakdown of communication, or an irreconcilable conflict

which leads to an apparently unjust verdict. United States v. Padilla, 819 F.2d

952, 955 (10th Cir. 1987).

      Retained Counsel Cohen. Vaughan first argues that a breakdown of direct

communications with Cohen compromised his defense. Throughout these

proceedings, however, Vaughan had two lawyers, and he does not argue that he

was unable at any time to at least communicate with Froelich, his local counsel.

And the record shows, in any event, that Froelich was communicating with Cohen

at the time of the request for new counsel. More notably, Cohen never moved to

withdraw as counsel. Vaughan thus could communicate with at least one member

of his defense team at all times.

      We must also reject Vaughan’s specific contention that he could not

communicate effectively with Cohen. We determine whether a complete

breakdown of communications has occurred by examining, among other things,


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(1) whether the defendant’s request was timely; (2) whether the trial court

adequately inquired into defendant’s reasons for making the request; (3) whether

the defendant-attorney conflict was so great that it led to a total lack of

communication precluding an adequate defense; and (4) whether the defendant

substantially and unreasonably contributed to the communication breakdown.

Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000).

      Vaughan claims that his difficulties in communicating with Cohen satisfy

all four Romero factors. There is no real dispute as to the first, second, and

fourth factors, as the motion was timely, the court conducted a prompt hearing,

and Vaughan did not contribute to the communication problems. As to the third

factor, however, we agree with the district court that Vaughan has not shown a

total lack of communication precluding an adequate defense.

      At the time the district court conducted a hearing on the motion for

substitution of counsel, no evidence existed that any failure of communication

had affected Vaughan’s substantial rights. Vaughan had already entered his guilty

pleas before any alleged communications difficulties and the court had not yet

proceeded to sentencing. Therefore, any communication problems at that point

could not have materially affected Vaughan’s ability to mount an adequate

defense.

      As for the upcoming sentencing hearing, the district court found that it


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could cure any future communication difficulties by ordering Cohen to (a)

“personally attend all future court hearings in this matter,” (b) “meet with the

Probation Office personally if the Probation Office requests such a meeting for

purposes of working out any objections to the PSIR,” and (c) “discharge all of his

ethical obligations to his client and to participate to the full extent in whatever

sentencing proceedings remain to be conducted in this case and to zealously

protect the rights of his client.” We have held that curative instructions can be

used by trial judges to remedy claims of ineffective communication between

client and lawyer. See United States v. Anderson, 189 F.3d 1202, 1210 (10th Cir.

1999). It is undisputed that Cohen complied with the district court’s orders in

this case.

      Cohen and Froelich both appeared at the sentencing hearing and made

arguments on Vaughan’s behalf. Furthermore, Vaughan has not shown that any

communication difficulties prevented either Cohen or Froelich from preparing for

the hearing. In sum, Vaughan has not satisfied the third Romero factor with

respect to Cohen’s representation. Therefore, the district court did not abuse its

discretion in failing to grant substitution of counsel with respect to Cohen.

      Local Counsel Froelich. Vaughan also argues that Froelich showed “good

cause” to withdraw under United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.

2002). He claims that Froelich’s lack of experience in criminal matters created


                                          -8-
circumstances that lead to an inadequate defense. Again, we disagree.

      Although Froelich, a tax lawyer by specialty, claimed that he was

inexperienced in criminal sentencing matters and stated that he was “in over his

head,” Aplt. Br. at 42, the district court found that he could still render effective

legal assistance. In particular, the court told Froelich that nothing in the case

“really requires [special] expertise in the criminal law. You’ve [Froelich] second

chaired Mr. Cohen, you’ve conducted this hearing, you did a fine job with that,

there’s no particularly sophisticated issues of criminal law that were involved

here today. So it seems to me that what we do is get Mr. Cohen back here to

finish his representation, you continue to serve as second chair, and we’ll get this

sentencing completed . . . .”

      We have held that “[a]n attorney with little or no prior experience certainly

can render effective assistance.” Cooks v. Ward, 165 F.3d 1283, 1293 n.5 (10th

Cir. 1998); see also Fields v. Gibson, 277 F.3d 1203, 1215 n.7 (10th Cir. 2002)

(“[C]ompetent defense may be accomplished by inexperienced counsel.”). At the

hearing on the motion to withdraw, neither Vaughan nor Froelich could point to

any instance in which Froelich made a mistake or otherwise proved ineffective.

Vaughan did not renew his motion prior to the sentencing hearing or after the

court’s sentencing order. Indeed, he enjoyed the full participation of both Cohen

and Froelich at sentencing, and they made numerous objections to the


                                          -9-
government’s position under the sentencing guidelines.

      In sum, the record makes clear that Vaughan had the services of both of his

lawyers at critical times throughout his case. Neither the alleged lack of

communication between his retained and local counsel nor the inexperience of his

local counsel required substitution or withdrawal under our cases. Accordingly,

the district court did not abuse its discretion in denying the motions.

                           IV. Breach of Plea Agreement

      We review de novo whether the government breached a plea agreement.

United States v. Fortier, 180 F.3d 1217, 1223 (10th Cir. 1999).

      Vaughan alleges that the government failed, as promised in the plea

agreement, “fully to inform the Court of the nature, extent, and value of any

cooperation rendered by the defendant.” In particular, he alleges that the

government failed to inform the district court that he met with and provided

information to several government agents. Nothing in the record, however,

supports this claim, see Aplt. Br. at 33 n.10 (“The government memorandum

describing Mr. Vaughan’s cooperation is not part of the record on appeal.”), nor

does Vaughan point to any other evidence that the government breached the plea

agreement. Therefore, we have no basis to remand for resentencing on the

grounds that the government breached the plea agreement.




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                              V. Blakely v. Washington

      Finally, Vaughan argues in a Supplemental Opening Brief that his sentences

for money laundering and conspiracy to commit wire fraud should be vacated in

light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531, 159 L.Ed.2d 403

(2004). In particular, he argues that the United States Sentencing Guidelines “are

unconstitutional in toto” and that therefore he “must be sentenced under a purely

discretionary scheme.” Aplt. Supp. Open. Br. at 16. 2

      Given that Vaughan did not raise this argument at the sentencing hearing,

we review only for plain error. Under plain error review, we will correct an error

in the following circumstances: (1) there is an error; (2) that is plain; (3) that

affects substantial rights; and (4) that seriously affects the fairness, integrity, or

public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625,

631 (2002). When a defendant raises a Blakely issue on appeal, the fourth prong

of the plain error test is not met if the evidence underlying the sentencing

enhancements was “overwhelming” or was conceded by the defendant. United

States v. Maldonado-Ramires, 384 F.3d 1228, 1231 n.1 (10th Cir. 2004); United

States v. Badilla, 383 F.3d 1137, 1143 n.4 (10th Cir. 2004).



      2
        We are aware that United States v. Booker, 375 F.3d 508 (7th Cir. 2004),
and United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004) are
currently pending in the Supreme Court.


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      Vaughan’s sentence was enhanced for (i) causing an amount of consumer

loss over $10 million, (ii) defrauding more than one victim, (iii) committing an

offense through mass marketing, (iv) violating a prior order, and (v) leading a

criminal activity involving five or more participants. Vaughan admitted in the

plea agreement to all five of these facts. Under these circumstances, therefore,

Vaughan has failed to show that any sentencing error under an extension of

Blakely would seriously affect the fairness, integrity, or public reputation of the

judicial proceedings in this case. Therefore, we decline to vacate his sentence

under plain error review.

                                   VI. Conclusion

      For the foregoing reasons, we AFFIRM and REMAND for correction of the

judgment and commitment order.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge




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