United States v. Mallory

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 21, 2007
• Docket: 06-1468
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 21, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 06-1468 v. (D.Ct. No. 05-cr-298-W YD) (D . Colo.) PHILLIP LEON M ALLORY II,

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior 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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Appellant Phillip Leon M allory II pled guilty to one count of knowingly

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. making a false and fictitious oral and written statement in connection with

acquisition and attempted acquisition of a firearm, with such statement being

intended and likely to deceive a licenced dealer with respect to material facts

related to the lawfulness of the sale and disposition of the firearm, in violation of

18 U.S.C. § 922(a)(6). The district court sentenced Dr. M allory to time served

and three years supervised release. Although Dr. M allory appeals his conviction

and sentence, his attorney has filed an Anders brief and motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set

forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal.

I. Background

Because Dr. M allory premises his appeal, in part, on circumstances

preceding his federal offense, such background information is useful for our

disposition of his appeal, as follows. 1 In July 2004, officers with the Arapahoe

County, Colorado, Sheriff’s Office executed a search warrant of a hotel room

based on allegations made by a woman who claimed she received prescription

1 Because none of the parties provided a sufficient factual or procedural narrative in their appellate briefs and responses, we rely on documents in the record and provided on appeal for the purpose of discerning Dr. M allory’s claims as they relate to such background information. Because Dr. M allory provided many of the documents relating to his state case, we rely on those documents solely for the purpose of background information, giving Dr. M allory the benefit of the doubt as to the content of those documents only for the purposes of this appeal.

-2- drugs from a doctor associated with that room in exchange for acts unrelated to

the provision of any medical services. Thereafter, in M arch 2005, Dr. M allory

was indicted and arrested on felony charges in case number 05-CR-00609 in the

District Court for Arapahoe County, Colorado. Although Dr. M allory was

released on bond, a mandatory restraining order was issued against him for the

protection of the woman making the allegations against him. One of the

conditions of the restraining order included a prohibition stating Dr. M allory

could not possess or control a firearm or other weapon. Dr. M allory signed the

order under the notation acknowledging receipt of the order on the same day it

was issued.

Ten weeks later, on M ay 26, 2005, Dr. M allory knowingly made a false or

fictitious oral and written statement in connection with the acquisition or

attempted acquisition of a Bushmaster AR-15 .223 caliber rifle from a licensed

dealer, with such statement being intended and likely to deceive such dealer with

respect to facts material to the lawfulness of the sale and disposition of the

firearm, in violation of 18 U.S.C. § 922 (a)(6). 2 Specifically, Dr. M allory filled

out ATF form 4473, which contains numerous background questions and an

admonishment that false statements made on the form may result in federal

2 In his plea agreement, Dr. M allory stipulated to the facts supporting his indictment.

-3- prosecution. In response to the question asking whether the purchaser is under an

indictment for a felony, Dr. M allory marked “no,” which was an untrue response

given the pending state charges against him. Two days later, on M ay 28, 2005,

Dr. M allory asked a family friend to assist him in purchasing the same type of

gun from the same gun store, and on her ATF form she made a false statement she

was purchasing the gun for herself and not another individual.

On June 2, 2005, an Arapahoe County District Court judge issued an order

for Dr. M allory’s arrest and bond to be set at $100,000, presumably because he

violated the provision of the restraining order prohibiting his possession of a

firearm. A few weeks later, on June 21, 2005, the federal indictment issued,

charging Dr. M allory with the instant offense. On August 24, 2005, a superseding

indictment issued charging the instant offense and adding an additional count of

abetting in the commission of an offense under 18 U.S.C. § 922(a)(6) by causing

a family friend to knowingly make a false and fictitious statement in connection

with acquisition and attempted acquisition of a firearm.

Thereafter, on April 27, 2006, Dr. M allory entered a plea agreement,

agreeing to plead guilty to the federal count of making a false statement in

connection with acquisition and attempted acquisition of a firearm in violation of

18 U.S.C. § 922(a)(6) in exchange for dismissal of the additional criminal charge

-4- of abetting another. He also signed a statement in advance of his guilty plea and

attended a plea hearing before the federal district court, where the court accepted

Dr. M allory’s guilty plea. On M ay 12, 2006, an Arapahoe County District Court

judge entered an order dismissing all state counts against Dr. M allory and

quashing all outstanding warrants issued for his arrest based on the state’s motion

to dismiss, which explained prosecution was no longer necessary because D r.

M allory pled guilty in federal district court in the instant case.

Thereafter, a federal probation officer prepared a presentence report

calculating Dr. M allory’s sentence under the applicable United States Sentencing

Guidelines (“G uidelines” or “U .S.S.G.”). The presentence report set Dr.

M allory’s base offense level at 14, noted he had no prior criminal history, and

recommended a two-level downward adjustment for acceptance of responsibility.

Dr. M allory’s total offense level of 12, together with his criminal history level

score of I, resulted in a Guidelines sentencing range of ten to sixteen months

imprisonment. Based on the six months Dr. M allory served in custody and four

months he served in home detention, the probation officer recommended a

sentence of time served and three years supervised release.

Sometime during the pendency of litigation against Dr. M allory, the

Colorado State Board of M edical Examiners revoked his medical license. Prior to

-5- sentencing, Dr. M allory filed a pro se letter with the federal district court asking

to withdraw his guilty plea; in response, the court issued an order noting Dr.

M allory had legal representation, striking the letter, and ordering the sentencing

hearing to proceed. At the sentencing hearing, Dr. M allory ultimately took

responsibility for his conduct in the instant offense, stating, “I should have know n

better, that since I had run afoul of the law , that I should not have tried to

purchase a weapon.” R., Supp. Vol. 1 at 15-16. The district court then

questioned Dr. M allory, based on his letter written to the court, as to whether he

wished to withdraw his guilty plea. After consulting with his counsel, Dr.

M allory advised he could not answer the question at that time; the court then

continued the sentencing hearing for the purpose of allowing Dr. M allory time to

determine whether he wished to withdraw his plea and, if not, to submit a signed

statement to the court. In so doing, the district court cited the seven-part test

required to be addressed in withdrawal of a guilty plea. At the conclusion of the

hearing, Dr. M allory stated, “I’m not saying that I necessarily am without guilt,

okay. And I’m just wondering, do you have any latitude in imposing a sentence

whereby I might still practice medicine again somewhere in these United States?”

Id. at 21. The district court responded:

[T]he only reason you’re in front of me today relates to the Government’s charges against you for violating certain federal statutes regarding attempts by you ... to purchase a weapon at a time when you had pending felony charges against you in Arapahoe County and based on the answers that you gave in the applications.

-6- ... I have no direct jurisdiction over what the Colorado M edical Board ... may do. ... So w hether or not my decision will allow you to practice medicine or not practice medicine is not something that I will decide, because I can’t decide it.

Id. at 21-22.

Days later, Dr. M allory signed and filed with the court a pleading, stating

he did not wish to withdraw his guilty plea. At the second sentencing hearing,

neither party filed any objections to the presentence report, including the

sentencing recommendations. Counsel for the government agreed with the

presentence report’s recommendation that Dr. M allory receive a sentence of time

served, but also requested he receive the recommended three years supervised

release, not as a punitive measure against him, but for the purposes of changing

his attitude to take responsibility for his actions, safeguarding the community, and

protecting Dr. M allory’s own welfare.

Prior to sentencing, Dr. M allory reaffirmed his guilty plea and ultimately

acknowledged that “in the broad sense of applicable federal law” he was guilty of

the charge. R., Supp. Vol. 2 at 14. He further stated, “there is remorse on my

part that ... I shouldn’t have tried to seek a weapon. ... And again, I do apologize

for being in violation of federal law.” Id. at 16. In imposing the sentence, the

district court explicitly stated it had considered the presentence report factual

findings, the advisory Guidelines, and the factors set forth in 18 U.S.C. § 3553(a),

-7- and then sentenced Dr. M allory at the low end of the Guidelines range to ten

months time already served and three years supervised release.

After Dr. M allory filed his notice of appeal, his appointed counsel filed an

Anders appeal brief. Counsel stated he conducted a diligent review of the record

and could not in good faith advance an argument the record supported a challenge

to either the voluntary and intelligent character of the plea in the case or the

reasonableness of the sentence. In support, counsel pointed out the district court

sentenced Dr. M allory at the low end of the applicable Guidelines range. In

addition, counsel moved for an order permitting his withdraw al as D r. M allory’s

counsel. See Anders, 386 U.S. at 744. Pursuant to Anders, this court gave D r.

M allory an opportunity to respond to his counsel’s Anders brief. See id. Dr.

M allory filed a response.

In his pro se response, Dr. M allory makes numerous assertions unrelated to

the instant federal charge, including: 1) contesting the Colorado State Board of

M edical Examiners’ revocation of his license; 2) questioning the sufficiency of

the evidence supporting the sheriff’s officers’ assertion of probable cause for the

search warrant of his motel room; 3) alleging criminal misconduct of those same

officers; 4) asserting the state judge did not read or explain the charges against

him in his state case and further caused him to sign the restraining order “before

-8- the appropriate blocks were checked”; 5) claiming the Arapahoe County District

Attorney misrepresented his restraining order violation was a violation of federal

law ; and 6) alleging county officials continue to hold his “priceless illegally

seized property” hostage. Apt. 6/25/07 Resp. at 1. The only allegation made with

respect to the instant case is made in one sentence, in which he states, “[m]y

acceptance of this legally insufficient plea agreement was not voluntary.” Id.

In response, the government did not file a brief, but subsequently filed a

letter directing this court to supplemental authorities addressing Dr. M allory’s pro

se response. The government indicated Dr. M allory was seeking to collaterally

attack his “underlying prior state felony conviction” and provided authority that

Dr. M allory must assert complete denial of counsel in the state proceeding for a

collateral attack, which he failed to do. In turn, Dr. M allory filed a responsive

letter with copies of state court stamp-filed documents attached, explaining he

never received a state felony conviction because the charges relating to his state

action were dismissed against him. A notation in the stipulated facts in his plea

agreement confirms such dismissal.

II. Discussion

As required by Anders, we have conducted a full examination of the record

before us. See 386 U .S. at 744. Turning first to D r. M allory’s pro se assertion

-9- that his guilty plea was involuntary, we construe his pro se pleadings liberally.

See Haines v. Kerner, 404 U.S. 519, 520 (1972). W hile we construe pro se

pleadings more liberally, we have repeatedly held that perfunctory or cursory

reference to an issue, like here, unaccompanied by some effort at a developed

argument, is inadequate to warrant consideration. See United States v. Almaraz,

306 F.3d 1031, 1041 (10th Cir. 2002) (relying on United States v. LaH ue, 261

F.3d 993, 1009 (10th Cir. 2001), and Femedeer v. Haun, 227 F.3d 1244, 1255

(10th Cir. 2000)). M ore specifically, we have held a conclusory statement by a

defendant “absent any other evidence, [is] insufficient to show that his plea was

involuntary.” United States v. Kramer, 168 F.3d 1196, 1200 (10th Cir. 1999).

In this case, Dr. M allory states his plea agreement was involuntary in one

cursory sentence and has not otherwise provided additional argument or a copy of

the plea hearing transcript in support of his contention. 3 In addition, the district

court twice gave him the opportunity, at two different sentencing hearings, to

decide whether to withdraw his guilty plea, and each time, after consultation with

his attorney, Dr. M allory indicated he wanted to proceed with sentencing and

acknowledged he was guilty of breaking the law as charged. Any doubt about his

3 Neither Dr. M allory nor his appointed attorney provided the transcript of his plea hearing. An appellant making a claim has a responsibility to provide those portions of the record on appeal w hich support his claim. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000).

-10- guilty plea seems to have stemmed from his concern about regaining his medical

license after it was revoked, and not from any misgivings about his professed

guilt, which he repeatedly acknowledged. Further, his attorney on appeal has

stated he conducted a diligent review of the record and could not in good faith

advance an argument that the record supports a challenge to the voluntary and

intelligent character of his plea. These circumstances, taken together with Dr.

M allory’s unsupported, cursory statement that his plea agreement was

involuntary, without more, do not support a claim. Thus, based on the record

before us, we cannot say Dr. M allory’s guilty plea was involuntary for the

purpose of challenging his conviction.

As to his sentence of ten months time served and three years supervised

release, we review for reasonableness the sentence’s length, as guided by the

factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam). Having made such a review, we find no

nonfrivolous basis for challenging the sentence imposed. The district court in this

case explicitly considered the factors in § 3553(a), and a presumption of

reasonableness attaches to a sentence, like here, which is within the correctly-

calculated Guidelines range, which Dr. M allory has not rebutted. See id. at 1053-

55. In addition, Dr. M allory has not provided any argument pertaining to his

three-year term of supervised release, leaving us to conclude, under the

-11- circumstances presented in the record, that his term of supervised release is not

unreasonable.

As to his state-related claims, to the extent that Dr. M allory is collaterally

attacking any prior conviction, the government correctly points out he has not

claimed or otherwise shown he was denied counsel in his state case – a threshold

requirement for a defendant in a federal criminal case collaterally attacking a

prior conviction. See United States v. Cousins, 455 F.3d 1116, 1125 (10th Cir.

2006) (relying on Custis v. United States, 511 U.S. 485, 487 (1994)), cert. denied,

127 S. Ct. 162 (2006), and cert. denied, 127 S. Ct. 706 (2006). However, it

appears from documents provided by Dr. M allory and a stipulated fact in the plea

agreement that the state charges against him in A rapahoe County criminal case

number 05-CR-00609 were in fact dismissed. As a result, this is not a matter of a

collateral attack on a state conviction, as the government indicates. In any event,

we note Dr. M allory’s pro se argument as it relates to the instant case appears to

center on the state court’s restraining order and its prohibition on possessing a

gun. How ever, his argument misses the point. Instead, the instant federal offense

stems directly from Dr. M allory’s false statement he was not under indictment for

a felony crime at the time he attempted to purchase a gun. As a result, his instant

offense is not related to the mandatory restraining order. W e further note Dr.

M allory has never suggested such state charges were not pending against him at

-12- the time he made the false statement.

Finally, Dr. M allory’s other claims concerning revocation of his state

medical license and the conduct of certain county officials, both during the state-

initiated search and seizure and charges brought against him, involve state action

over w hich we do not have jurisdiction for the purpose of our review of his

federal conviction and sentence. Therefore, we will not address them on appeal.

III. Conclusion

For these reasons, no meritorious appellate issue exists. Accordingly, w e

grant counsel’s motion to withdraw and DISM ISS Dr. M allory’s appeal.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-13-