Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-6039 (D.C. No. 5:22-CR-00473-G-1) MARCUS ANGELO BUFORD, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, BALDOCK, and LUCERO, Circuit Judges. _________________________________
Defendant Marcus Buford pleaded guilty to three criminal counts stemming
from his robbery of two Oklahoma City liquor stores and was sentenced to a total
term of imprisonment of 300 months. Mr. Buford filed a timely notice of appeal and
his appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), stating that the appeal presents no non-frivolous grounds for reversal.
After careful review of the record, we agree with Mr. Buford’s counsel. Therefore,
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 2
exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to
withdraw and dismiss the appeal.
I
On May 25, 2022, Mr. Buford stole multiple bottles of liquor from two liquor
stores in northwest Oklahoma City. During one of the robberies, Mr. Buford pulled
out a handgun from his pocket, showed it to the owner who was trying to stop him
from leaving the store, and threatened to shoot him. During the other robbery, the
store owner confronted Mr. Buford after he had left the store and entered his car.
Mr. Buford responded by shooting the owner in the face with a handgun.
A federal grand jury indicted Mr. Buford on four criminal counts: Counts 1
and 3 charged Mr. Buford with interference with commerce by robbery, in violation
of 18 U.S.C. § 1951(a); Count 3 charged Mr. Buford with possessing and brandishing
a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii); and Count 4 charged Mr. Buford with possessing, brandishing,
and discharging a firearm in furtherance of a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(iii).
Mr. Buford entered into a written plea agreement, pursuant to which he agreed
to plead guilty to Counts 1, 3, and 4 of the indictment. Under the terms of the plea
agreement, Mr. Buford waived his “right to appeal [his] guilty plea, and any other
aspect of [his] conviction.” R. vol. I at 33. He also waived his right to appeal his
sentence, including “the manner in which [it wa]s determined, including its
procedural reasonableness.” Id. He retained his right to appeal the substantive
2 Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 3
reasonableness of his sentence if it was “above the advisory Guidelines range
determined by the Court to apply to [his] case.” Id.
The presentence investigation report (PSR) proposed a total offense level of
29, a criminal history score of six, and a criminal history category of III. The PSR in
turn proposed an advisory guideline sentence range of 108 to 135 months, but noted
that Count 4 (the firearm charge) required the imposition of a 120-month term of
imprisonment consecutive to any term of imprisonment imposed for the other counts
of conviction.1 Neither party objected to the PSR.
The government moved for an upward variance to an aggregate sentence of
360 months, arguing that a variance was warranted by “[t]he high risk to innocent
life, public safety, and personal property posed by Mr. Buford’s release from
custody.” R. vol. I at 44. Mr. Buford moved for a downward variance, noting his
personal history and the fact he “was a heavy alcoholic at the time of the thefts and
his thefts were motivated by that addiction.” Id. at 49.
At the sentencing hearing, the district court adopted the findings and proposed
calculations in the PSR. After considering all of the information presented by the
parties and independently examining the factors outlined in 18 U.S.C. § 3553, the
district court sentenced Mr. Buford to a term of imprisonment of 87 months as to
Counts 1 and 3 and a consecutive term of imprisonment of 213 months as to Count 4,
1 As the district court noted at the time it accepted Mr. Buford’s guilty plea, Count 4 carried a mandatory minimum sentence of 120 months and a maximum term of life, which was to run consecutive to any term of imprisonment imposed for Counts 1 and 3. 3 Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 4
resulting in a total term of imprisonment of 300 months. The district court noted that
this represented “an upward variance as to Count 4 and as to the total sentence
imposed.” R. vol. III at 59. The district court concluded that an upward variance
was appropriate given Mr. Buford’s “disregard for human life” and “the need for
specific and general deterrence.” Id.
After the district court entered final judgment, Mr. Buford’s counsel filed a
timely notice of appeal.
II
Mr. Buford’s counsel has now filed an Anders brief as well as a motion to
withdraw as counsel. In the Anders brief, Mr. Buford’s counsel asserts there are no
meritorious grounds for the appeal. We provided Mr. Buford with a copy of the
Anders brief and invited him to file a pro se supplemental brief, he has not done so.
Anders requires us to “conduct a full examination of the record to determine
whether” any claims asserted by the defendant “are wholly frivolous.” United States
v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If they are, we may grant counsel’s
motion to withdraw and dismiss the appeal. Id.
Having fully examined the record, we agree with Mr. Buford’s counsel that
any appellate challenges Mr. Buford could raise would be frivolous. Regarding
Mr. Buford’s convictions, the record reveals no infirmities in the plea agreement or
the plea colloquy. As for Mr. Buford’s sentence, he knowingly waived his right to
challenge the procedural reasonableness of the sentence on appeal. Lastly, although
the district court chose to vary upward from the advisory guidelines sentencing range
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Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-6039 (D.C. No. 5:22-CR-00473-G-1) MARCUS ANGELO BUFORD, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, BALDOCK, and LUCERO, Circuit Judges. _________________________________
Defendant Marcus Buford pleaded guilty to three criminal counts stemming
from his robbery of two Oklahoma City liquor stores and was sentenced to a total
term of imprisonment of 300 months. Mr. Buford filed a timely notice of appeal and
his appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), stating that the appeal presents no non-frivolous grounds for reversal.
After careful review of the record, we agree with Mr. Buford’s counsel. Therefore,
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 2
exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to
withdraw and dismiss the appeal.
I
On May 25, 2022, Mr. Buford stole multiple bottles of liquor from two liquor
stores in northwest Oklahoma City. During one of the robberies, Mr. Buford pulled
out a handgun from his pocket, showed it to the owner who was trying to stop him
from leaving the store, and threatened to shoot him. During the other robbery, the
store owner confronted Mr. Buford after he had left the store and entered his car.
Mr. Buford responded by shooting the owner in the face with a handgun.
A federal grand jury indicted Mr. Buford on four criminal counts: Counts 1
and 3 charged Mr. Buford with interference with commerce by robbery, in violation
of 18 U.S.C. § 1951(a); Count 3 charged Mr. Buford with possessing and brandishing
a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii); and Count 4 charged Mr. Buford with possessing, brandishing,
and discharging a firearm in furtherance of a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(iii).
Mr. Buford entered into a written plea agreement, pursuant to which he agreed
to plead guilty to Counts 1, 3, and 4 of the indictment. Under the terms of the plea
agreement, Mr. Buford waived his “right to appeal [his] guilty plea, and any other
aspect of [his] conviction.” R. vol. I at 33. He also waived his right to appeal his
sentence, including “the manner in which [it wa]s determined, including its
procedural reasonableness.” Id. He retained his right to appeal the substantive
2 Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 3
reasonableness of his sentence if it was “above the advisory Guidelines range
determined by the Court to apply to [his] case.” Id.
The presentence investigation report (PSR) proposed a total offense level of
29, a criminal history score of six, and a criminal history category of III. The PSR in
turn proposed an advisory guideline sentence range of 108 to 135 months, but noted
that Count 4 (the firearm charge) required the imposition of a 120-month term of
imprisonment consecutive to any term of imprisonment imposed for the other counts
of conviction.1 Neither party objected to the PSR.
The government moved for an upward variance to an aggregate sentence of
360 months, arguing that a variance was warranted by “[t]he high risk to innocent
life, public safety, and personal property posed by Mr. Buford’s release from
custody.” R. vol. I at 44. Mr. Buford moved for a downward variance, noting his
personal history and the fact he “was a heavy alcoholic at the time of the thefts and
his thefts were motivated by that addiction.” Id. at 49.
At the sentencing hearing, the district court adopted the findings and proposed
calculations in the PSR. After considering all of the information presented by the
parties and independently examining the factors outlined in 18 U.S.C. § 3553, the
district court sentenced Mr. Buford to a term of imprisonment of 87 months as to
Counts 1 and 3 and a consecutive term of imprisonment of 213 months as to Count 4,
1 As the district court noted at the time it accepted Mr. Buford’s guilty plea, Count 4 carried a mandatory minimum sentence of 120 months and a maximum term of life, which was to run consecutive to any term of imprisonment imposed for Counts 1 and 3. 3 Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 4
resulting in a total term of imprisonment of 300 months. The district court noted that
this represented “an upward variance as to Count 4 and as to the total sentence
imposed.” R. vol. III at 59. The district court concluded that an upward variance
was appropriate given Mr. Buford’s “disregard for human life” and “the need for
specific and general deterrence.” Id.
After the district court entered final judgment, Mr. Buford’s counsel filed a
timely notice of appeal.
II
Mr. Buford’s counsel has now filed an Anders brief as well as a motion to
withdraw as counsel. In the Anders brief, Mr. Buford’s counsel asserts there are no
meritorious grounds for the appeal. We provided Mr. Buford with a copy of the
Anders brief and invited him to file a pro se supplemental brief, he has not done so.
Anders requires us to “conduct a full examination of the record to determine
whether” any claims asserted by the defendant “are wholly frivolous.” United States
v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If they are, we may grant counsel’s
motion to withdraw and dismiss the appeal. Id.
Having fully examined the record, we agree with Mr. Buford’s counsel that
any appellate challenges Mr. Buford could raise would be frivolous. Regarding
Mr. Buford’s convictions, the record reveals no infirmities in the plea agreement or
the plea colloquy. As for Mr. Buford’s sentence, he knowingly waived his right to
challenge the procedural reasonableness of the sentence on appeal. Lastly, although
the district court chose to vary upward from the advisory guidelines sentencing range
4 Appellate Case: 24-6039 Document: 36-1 Date Filed: 12/11/2024 Page: 5
as to Count 4, the record demonstrates that the district court carefully considered the
factors set forth in 18 U.S.C. § 3553(a) and determined that an above-guidelines
sentence for Count 4 was necessary to appropriately punish Mr. Buford, to deter him
from future violent conduct, and to protect the public. We therefore agree with
Mr. Buford’s counsel that any challenge to the substantive reasonableness of the
sentence would fail. See generally United States v. Crosby, 119 F.4th 1239, 1246
(10th Cir. 2024) (noting that “[w]e review a district court’s sentencing decision for
substantive reasonableness under an abuse-of-discretion standard” and that
“[a] district court abuses its discretion when it renders a judgment that is arbitrary,
capricious, whimsical, or manifestly unreasonable” (internal quotation marks
omitted)).
III
We grant counsel’s motion to withdraw and dismiss Mr. Buford’s appeal.
Entered for the Court
Carlos F. Lucero Circuit Judge