United States v. McCombs

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 6, 2024
• Docket: 23-5094
• Status: Unpublished

Opinion

Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 23-5094 (D.C. No. 4:20-CR-00262-GKF-1) SONNY RAYE MCCOMBS, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, KELLY, and ROSSMAN, Circuit Judges.* _________________________________

Sonny Raye McCombs pleaded guilty to one count of aiding and abetting

robbery in Indian Country in violation of 18 U.S.C. §§ 1151, 1153, 2111, and 2; and

one count of aiding and abetting eluding police officers in Indian Country in

violation of 18 U.S.C §§ 1151, 1152, 13, and 2; and 21 Okla. Stat. Ann. §§ 540A(A)

and (B). The district court sentenced McCombs to 192 months’ imprisonment—180

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 2

months’ imprisonment on the first count and 12 months’ imprisonment on the second,

to run consecutively to each other.

McCombs appealed. However, his appellate counsel submitted an Anders

brief, stating that there are no non-frivolous claims to be brought on appeal and

seeking leave to withdraw from representing McCombs. See Anders v. California,

386 U.S. 738, 744 (1967). Upon an independent review of the record, we agree that

there are no non-frivolous arguments that McCombs may bring on appeal. We thus

grant counsel’s motion and dismiss the appeal.

I.

McCombs’s convictions stem from a 2016 incident in which McCombs and

another man, Chekota Whitetree, caused a multi-car collision in Tulsa, Oklahoma,

within the boundaries of the Muscogee (Creek) Nation. Following the crash,

McCombs and Whitetree spotted a woman who had stopped her vehicle. McCombs

grabbed the driver and forced her partially out of her Nissan Sentra. Whitetree

entered the front-passenger side of the vehicle and the two men began driving away,

but the woman was unable to disengage immediately from the frame of the vehicle

and was dragged for several feet. An hour later, McCombs, Whitetree, and a minor

in their company drove the Nissan to a store in Tulsa, where they stole clothing and

two air pistols. Approximately another hour passed before law enforcement officers

observed Whitetree driving the stolen vehicle, with McCombs in the front passenger

seat and two minors in the back passenger seats. Officers attempted to conduct a

traffic stop, at which point Whitetree fled, leading law enforcement on a high-speed

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chase. During the chase, McCombs leaned out of the vehicle and pointed “what

appeared to be a black, semiautomatic pistol” at officers. R. Vol. II at 7. Officers

observed McCombs “taking a supported shooting position while aiming the pistol,

pulling the trigger, and absorbing recoil,” as well as muzzle flashes from the weapon

possessed by McCombs. Id. Police ultimately disabled the vehicle and apprehended

McCombs. Two of the occupants of the vehicle reported to the police that at least

one .22 pistol had been present in the vehicle at the time of the chase.

On April 5, 2021, McCombs was charged via superseding indictment with

three counts of robbery in Indian Country; theft in Indian Country; eluding police

officers in Indian Country; assault with a dangerous weapon; and using, carrying, and

discharging a firearm during and in relation to a crime of violence. Pursuant to plea

negotiations, the government ultimately filed a two-count information charging

McCombs with one count of aiding and abetting robbery in Indian Country in

violation of 18 U.S.C. §§ 1151, 1153, 2111, and 2; and one count of aiding and

abetting eluding police officers in Indian Country in violation of 18 U.S.C. §§ 1151,

1152, 13, and 2; and 21 Okla. Stat. Ann. §§ 540A(A) and (B). On May 16, 2022,

McCombs pleaded guilty to both counts.

The Probation Office prepared a Presentence Investigation Report (PSR) that

calculated McCombs’s total offense level at thirty-one; the offense level included a

seven-level enhancement for discharge of a firearm per U.S.S.G. § 2B31.1(b)(2)(A).

The district court held McCombs’s sentencing hearing on August 1, 2023. In

anticipation of sentencing, McCombs filed (1) a motion for a downward variance,

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arguing that the district court should grant him a lesser sentence in light of the

government’s dismissal of Whitetree from the case; and (2) an objection to the seven-

level enhancement, arguing that McCombs had not discharged a firearm, but rather

the air pistol that he had stolen earlier that day.

At sentencing the district court first addressed McCombs’s objection to the

firearm enhancement. It noted that McCombs contended that only the air pistol,

carbon dioxide cartridges, and pellets were recovered at the scene, and “[n]o firearm,

ammunition, or shell casing was recovered, and no bullet holes were found in the

area[.]” R. Vol. III at 6. The district court also noted that “multiple officers

observed muzzle flashes” from the car, and “at least one [officer] observed muzzle

flashes from the firearm possessed by Mr. McCombs.” Id. at 6–7. Further, two of

the occupants of the stolen car confirmed that there were a .22 pistol and an air pistol

in the vehicle during the pursuit. The district court then found by a preponderance of

the evidence that McCombs discharged a firearm and thus the seven-level

enhancement applied.

The district court found that McCombs had a criminal history category of VI

and that the total offense level was thirty-one, leading to a Guidelines range of 188 to

235 months’ imprisonment. McCombs’s counsel then orally requested a downward

variance on the basis that Whitetree’s case had been dismissed, and McCombs should

not be treated significantly more harshly than Whitetree. The government contended

in response that McCombs ought to be treated differently from Whitetree because of

his extensive criminal history. The district court agreed, and denied McCombs’s

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motion for a downward variance on the basis of the “nature of the instant offense and

the defendant’s extensive criminal history.” R. Vol. III at 16.

The district court sentenced McCombs to a total term of 192 months’

imprisonment, at the bottom end of the Guidelines range. In announcing its sentence,

the district court considered the 18 U.S.C. § 3553(a) sentencing factors to determine

McCombs’s sentence. It noted “the nature of the offense and the defendant’s

criminal history and his personal characteristics,” as well as “sentencing disparities

among defendants.” Id. at 19. McCombs timely appealed on August 17, 2023.

Counsel then filed the Anders brief before us. Neither McCombs nor the government

submitted a response brief.1

II.

Appellate counsel’s “role as advocate requires that [she] support [her] client’s

appeal to the best of [her] ability.” Anders, 386 U.S. at 744. However, when counsel

for the defendant has found the case to be “wholly frivolous, after a conscientious

examination of it, [she] should so advise the court and request permission to

withdraw.” Id. Once counsel files an Anders brief, this Court must conduct a “full

examination of all the proceedings, to decide whether the case is wholly frivolous.”

Id. If, after performing an independent review of the record, we agree with counsel,

1 McCombs’s response was due on March 1, 2024. On June 10, 2024, McCombs filed a motion for extension of time to file a response, but did not file a response. His motion was denied.

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then we may grant her request to withdraw and dismiss the appeal. Id. In this case,

we agree with counsel.

a.

“Our appellate review for reasonableness includes both a procedural

component, encompassing the method by which a sentence was calculated, as well as

a substantive component, which relates to the length of the resulting sentence.”

United States v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011). McCombs

frivolously challenges both components on appeal.

We begin with the first possible basis for McCombs’s appeal that counsel

identifies—that McCombs’s sentence was procedurally unreasonable because the

district court incorrectly calculated his Guidelines range. Anders Br. at 9. We

review a sentence for procedural reasonableness by applying the abuse of discretion

standard to the district court’s decision. See United States v. Smart, 518 F.3d 800,

805 (10th Cir. 2008). In reviewing a sentence’s procedural reasonableness, we look

at, among other things, whether the district court properly calculated a defendant’s

Guidelines range. United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008). “In

determining whether the district court correctly calculated the recommended

Guidelines range, we review de novo the district court’s legal conclusions pertaining

to the Guidelines and review its factual findings . . . under the Guidelines for clear

error.” Id.

We imagine that McCombs could attempt to argue that the district court

committed clear error when it found by a preponderance of the evidence that he

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discharged a firearm during the offense. But we find no clear error in the district

court’s decision. McCombs argued at sentencing that he could not be found to have

discharged a firearm because there “was no firearm recovered, there were no clips or

magazines from any firearms recovered, there was no ammunition recovered, there

were no shell casings recovered, there were no bullet holes in any police cars, and no

one was shot.” R. Vol. I at 42. “The existence of reasonable doubt . . . does not

preclude the sentencing court from finding by a preponderance of the evidence that

the conduct occurred.” United States v. Mendez-Zamora, 296 F.3d 1013, 1019 (10th

Cir. 2002). While there was no firearm recovered, two of the people in the stolen

vehicle confirmed that there was a .22 pistol in the car. Multiple officers reported

seeing muzzle flashes—which would not result from the discharge of an air pistol—

from the vehicle, and one officer specifically reported observing McCombs discharge

a weapon that had recoil and caused a muzzle flash. Further, it is unlikely that shell

casings would be recovered from a high-speed chase where the defendant was

leaning out of a window, presumably ejecting shell casings from the firearm into the

street rather than back into the vehicle. See also R. Vol. III at 15 (opining on

likelihood of shell casings falling outside of the vehicle given McCombs’s position).

The district court relied on comprehensive evidence from multiple sources to make

its finding. We find no error.

There is no other indication in the record that the district court incorrectly

calculated McCombs’s total offense level of thirty-one or his Category VI in criminal

history. We thus conclude that McCombs has no non-frivolous arguments that the

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district court erred in its calculation of his Guidelines range. No procedural error

occurred.

b.

The only other challenge that counsel suggests and that we can surmise is a

challenge on the substantive reasonableness of McCombs’s sentence. Anders Br. at

10–11. We see no non-frivolous argument here either. We review substantive

reasonableness for abuse of discretion. See United States v. Sayad, 589 F.3d 1110,

1116 (10th Cir. 2009). An inquiry into the substantive reasonableness of a sentence

is based on whether “the length of the sentence is reasonable given all the

circumstances of the case in light of the factors set forth in [§ 3553(a)].” Id. at 1116

(alteration in original) (citation omitted). When a sentence falls within the properly

calculated advisory Guidelines range, the sentence is “entitled to a rebuttable

presumption of reasonableness” on appeal. United States v. Alvarez–Bernabe, 626

F.3d 1161, 1165 (10th Cir. 2010).

Because McCombs’s sentence fell within the Guidelines range, he must show

that his sentence was unreasonable in light of the 18 U.S.C. § 3553(a) sentencing

factors. See id. at 1167. He cannot. In consideration of the § 3553(a) factors, the

district court weighed the nature of the offense; McCombs’s criminal history

category score; sentencing disparities; and McCombs’s prior theft, eluding, and drug

convictions when it sentenced him to 192 months. On appeal, “[w]e do not reweigh

the sentencing factors” that the district court already considered. United States v.

Blair, 933 F.3d 1271, 1274 (10th Cir. 2019). And nothing otherwise indicates that

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McCombs’s sentence fell outside of the range of “rationally available choices that

facts and the law at issue can fairly support.” Id. (quoting United States v. Martinez,

610 F.3d 1216, 1227 (10th Cir. 2010)). Indeed, no other facts in the record indicate

the district court abused its discretion when it sentenced McCombs to an in-

Guidelines sentence after explaining that his sentence was disparate from the

treatment of Whitetree because of his extensive criminal history. No abuse of

discretion occurred, thus, any appeal on this issue is frivolous.

III.

For the reasons stated above, we agree with counsel that there is no non-

frivolous basis for appeal. Accordingly, we GRANT counsel’s motion to withdraw

and DISMISS the appeal.

Entered for the Court

Allison H. Eid Circuit Judge