United States v. White

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 26, 2018
• Docket: 18-5031
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 26, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 18-5031 v. (D.C. No. 4:17-CR-00057-CVE-1) (N.D. Okla.) DAMON CALVIN WHITE, a/k/a "Damien White",

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________

Defendant Damon Calvin White pleaded guilty to possession of a firearm by a

convicted felon. See 18 U.S.C. § 922(g)(1). Defendant’s counsel filed a notice of appeal,

but then filed a brief under Anders v. California, 386 U.S. 738 (1967), expressing his

belief that there are no nonfrivolous grounds for an appeal, and moved for leave to

withdraw. Defendant submitted a response on his own behalf. The government declined

to submit a brief. We grant counsel’s motion to withdraw and dismiss the appeal.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Defendant entered an unconditional guilty plea in the district court. The

indictment charged that over a period of 12 years he had been convicted in Oklahoma

state court of 13 offenses punishable by imprisonment exceeding one year—including, on

three occasions, possession of a controlled substance with intent to distribute, see Okla.

Stat. Ann. tit. 63, § 2-401(A)(1) (West). At the guilty-plea hearing the district court

repeatedly confirmed that Defendant understood that “it appears most certainly [that the

conviction] would carry a mandatory minimum sentence of 15 years and up to life.”

R., Vol. III at 10–11.

The probation office’s presentence report (PSR) calculated Defendant’s total

offense level under the Sentencing Guidelines as 31 and his criminal-history category as

VI, resulting in an advisory sentence range of 188 to 235 months of incarceration and two

to five years of supervised release. Before sentencing, Defendant filed a motion

requesting that the district court vary downward from the guidelines range to impose the

statutory minimum sentence of 180 months. The government did not oppose the motion.

Defendant’s counsel did not lodge any objections to the PSR, but at the sentencing

hearing he informed the court that, against counsel’s advice, Defendant wished to object

to the use of his controlled-substance convictions as the basis for a mandatory 15-year

sentence under 18 U.S.C. § 924(e)(1). The district court granted Defendant’s motion for

a nonguideline sentence and sentenced him to 180 months of incarceration and a five-

year term of supervised release.

Under Anders if an attorney examines a case and determines that an appeal desired

by his client would be “wholly frivolous,” counsel may “so advise the court and request

2 permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief to both

the appellate court and the client, pointing to anything in the record that could potentially

present an appealable issue. See id. The client may then choose to offer argument to the

court. See id. If, upon close examination of the record, the court determines that the

appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal.

See id.

Defendant’s counsel submits, and we have confirmed from the record, that there

are no nonfrivolous grounds on which Defendant may challenge the validity of his guilty

plea. The transcript of his colloquy with the district court at his plea hearing indicates

that he knowingly and voluntarily pleaded guilty. The colloquy complied with the

requirements of Fed. R. Crim. P. 11(b): the court informed Defendant of his trial rights

in detail and he acknowledged that he waived them both orally and in signed forms, see

Fed. R. Crim. P. 11(b)(1)(B)-(F); the court explained to Defendant the nature of the

offense he was pleading to and confirmed that he understood it, see id. 11(b)(1)(G); the

court described to Defendant the maximum penalties under that offense, stressed to him

that it carried a mandatory minimum penalty of 15 years’ incarceration, and noted the

possibility of restitution and a special assessment, see id. 11(b)(1)(H)-(L); and the court

made clear its obligation to calculate the applicable sentencing-guideline range and to

consider that range, possible departures under and variances from the Sentencing

Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a), see id. 11(b)(1)(M).

The court also determined that the factual basis of the plea was sound, both by asking

3 Defendant to attest to the facts of the offense and confirming with the government that it

was prepared to prove those facts. See id. 11(b)(3).

Nor are there any nonfrivolous grounds on which Defendant could challenge the

procedural or substantive reasonableness of his sentence. See United States v. Geiner,

498 F.3d 1104, 1107 (10th Cir. 2007) (“We will set aside [a] sentence only if it is

procedurally or substantively unreasonable in light of the statutory factors contained in

18 U.S.C. § 3553(a).”). Defendant argues that a viable argument could be made that his

sentence was procedurally unreasonable, because it is possible that his prior controlled-

substance convictions do not qualify as “serious drug offense[s]” as defined in 18 U.S.C.

§ 924(e)(2)(A). But he offers no argument why they would not qualify, and we see none.

See United States v. Lujan, 724 F. App’x 682, 683–84 (10th Cir. 2018) (denying

certificate of appealability to challenge determination that conviction of possession with

intent to distribute under Oklahoma law was a “serious drug offense”).

Defendant also has no colorable argument that his 15-year sentence was

substantively unreasonable. See United States v. Perez-Jimenez, 654 F.3d 1136, 1146

(10th Cir. 2011) (“We apply a rebuttable presumption of reasonableness for sentences

imposed within the correctly calculated advisory guideline range. ‘Sentence’ is broadly

defined to include not just terms of imprisonment, but also terms of probation and fines.”

(citations and further internal quotation marks omitted)); United States v. Balbin-Mesa,

643 F.3d 783, 788 (10th Cir. 2011) (“extending the rebuttable presumption of

reasonableness to a below-guideline sentence challenged by the defendant as

4 unreasonably harsh.”) Nothing in the record would rebut the presumption of

reasonableness.

We GRANT defense counsel’s motion to withdraw and dismiss the appeal.

Entered for the Court

Harris L Hartz Circuit Judge