United States v. Sanders

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 24, 2000
• Docket: 99-3320
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 24 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-3320 (D.C. No. 99-40030-01-SAC) ZACK SANDERS, JR., (D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Zack Sanders, Jr. pled guilty to possession of cocaine base in violation of

21 U.S.C. § 844(a). He was sentenced to 84 months’ incarceration to be followed

by three years of supervised release. Mr. Sanders appeals his sentence,

contending that 1) the district court erred in determining that two prior

convictions which were consolidated for sentencing were not related cases; and 2)

the district court and defense counsel erred in advising him of the possible

sentence. Mr. Sanders’ counsel has filed an Anders brief and motion to withdraw.

See Anders v. California , 386 U.S. 738, 744 (1967). Upon the filing of counsel’s

Anders brief, Mr. Sanders was given an opportunity to respond. He failed to do

so. We affirm and grant counsel’s motion to withdraw.

We review de novo questions of law regarding application of the sentencing

guidelines, and review findings of fact under the clearly erroneous standard.

United States v. Wiseman , 172 F.3d 1196, 1217-18 (10th Cir.), cert. denied , 120

S. Ct. 211 (1999).

The first argument presented, that the district court erred in not treating two

prior convictions as related for purposes of sentencing, is without merit. Because

the offenses involved were separated by an intervening arrest, the district court

was correct in not treating the offenses as related. See U.S.S.G.

§ 4A1.2, comment. (n.3) (“Prior sentences are not considered related if they were

for offenses that were separated by an intervening arrest [ i.e. , the defendant is

-2- arrested for the first offense prior to committing the second offense].”); United

States v. Wilson , 41 F.3d 1403, 1405 (10th Cir. 1994) (holding that, where the

defendant was arrested for the first offense before he committed the second, “the

fact that the sentences for these two different crimes were imposed by the same

court on the same date does not convert these two convictions into related cases

within the meaning of U.S.S.G. § 4A1.2(a)(2)”).

The second argument, that neither the district court nor defense counsel

advised Mr. Sanders that he could be sentenced to more than five years

imprisonment, is not supported by the record. The transcript of the plea hearing

shows that the district court judge informed Mr. Sanders that the maximum

penalty was not less than five years and not more than twenty years incarceration.

Mr. Sanders also indicated several times in response to questioning by the trial

judge that no one promised him what the sentence would be. Mr. Sanders also

indicated that he was aware of the maximum possible sentence as it had been set

forth in the plea agreement.

After a careful review of the record we conclude that there are no

nonfrivolous grounds for appeal. Accordingly, the judgment of the United States

-3- District Court for the District of Kansas is AFFIRMED , and counsel’s motion to

withdraw is GRANTED .

Entered for the Court

Stephen H. Anderson Circuit Judge

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