Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 24-5059 v. (D.C. No. 4:24-CR-00047-JFH-1) (N.D. Okla.) MAURICE WILFORD,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Maurice Wilford stipulated to five violations of his supervised release and was
sentenced to 24 months in prison, followed by one year of supervised release. He
filed a timely notice of appeal. His counsel submitted an Anders brief stating this
appeal presents no non-frivolous grounds for reversal. After careful review of the
* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 2
record, we agree. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we grant counsel’s motion to withdraw and dismiss the appeal.
I. BACKGROUND
In 2020, Mr. Wilford was convicted for being a prohibited person in
possession of firearms in violation of 18 U.S.C. § 922(g) and § 924(a). The district
court sentenced him to 84 months in prison followed by three years of supervised
release.
About eight months into his supervised release, Mr. Wilford stipulated to the
following violations of his release terms:
(1) issuing interstate threats, 18 U.S.C. § 875(c), and committing cyberstalking, 18 U.S.C. § 2261A(2)(A), (B), when he sent harassing and threatening text messages to a minor;
(2) failing to appear for his group counseling session;
(3) testing positive for marijuana 25 times;
(4) failing to submit urine specimens for testing; and
(5) failing to submit five monthly reports to his probation officer.
Mr. Wilford’s criminal history category was V, and he stipulated to Grade B
violations. See United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)
§ 7B1.4(a).1
1 The Government did not argue that his 18 U.S.C. § 875(c) violation was a Grade A violation, which could have resulted in a higher Guidelines range. See U.S.S.G. §§ 7B1.1(a)(1), 7B1.1 n.2, 4B1.2(a).
2 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 3
The district court calculated Mr. Wilford’s Guidelines range to be 18 to 24
months in prison. It sentenced him to 24 months followed by one year of supervised
Mr. Wilford filed a timely notice of appeal. His counsel filed a brief and
motion to withdraw under Anders v. California, 386 U.S. 738, 744 (1967), which
“authorizes counsel to request permission to withdraw where counsel conscientiously
examines a case and determines that any appeal would be wholly frivolous.” United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). This court sent the Anders
brief to Mr. Wilford and invited him to respond. He did not do so.
II. DISCUSSION
Anders provides that:
[I]f counsel finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. . . . [T]he court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal . . . .
386 U.S. at 744. When counsel submits an Anders brief, we review the record de
novo. United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016). The Anders
brief here addresses whether Mr. Wilford has any non-frivolous arguments to
challenge (1) the procedural reasonableness of his sentence, (2) the substantive
reasonableness of his sentence, or (3) the constitutionality of his original conviction
3 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 4
under 18 U.S.C. § 922(g). It concludes none has merit. Based on our de novo
review, we agree. We have not detected any other viable appeal issues.
A. Procedural Reasonableness
The Anders brief considers whether the record supports a challenge to the
procedural reasonableness of Mr. Wilford’s sentence and concludes it does not. We
agree. As the Anders brief correctly states, we would review the procedural
reasonableness of Mr. Wilford’s sentence for plain error because he did not challenge the
calculation of the Guidelines range or otherwise object on the ground of procedural error.
See United States v. Henson, 9 F.4th 1258, 1289 (10th Cir. 2021) (collecting cases
applying plain error review to procedural reasonableness), vacated on other grounds,
142 S. Ct. 2902 (2022) (mem.).
When reviewing a sentence for procedural reasonableness, we consider
whether the district court committed “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007); accord United States v. Lente, 647 F.3d 1021,
1030 (10th Cir. 2011).
We discern no error—let alone plain error—from our review of the record.
The district court correctly calculated the Guidelines range, considered the applicable
Guidelines policy statements, and recognized that the Guidelines are “advisory in
nature.” ROA, Vol. III at 14. It also “considered the guidelines along with certain
4 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 5
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Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 24-5059 v. (D.C. No. 4:24-CR-00047-JFH-1) (N.D. Okla.) MAURICE WILFORD,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Maurice Wilford stipulated to five violations of his supervised release and was
sentenced to 24 months in prison, followed by one year of supervised release. He
filed a timely notice of appeal. His counsel submitted an Anders brief stating this
appeal presents no non-frivolous grounds for reversal. After careful review of the
* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 2
record, we agree. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we grant counsel’s motion to withdraw and dismiss the appeal.
I. BACKGROUND
In 2020, Mr. Wilford was convicted for being a prohibited person in
possession of firearms in violation of 18 U.S.C. § 922(g) and § 924(a). The district
court sentenced him to 84 months in prison followed by three years of supervised
release.
About eight months into his supervised release, Mr. Wilford stipulated to the
following violations of his release terms:
(1) issuing interstate threats, 18 U.S.C. § 875(c), and committing cyberstalking, 18 U.S.C. § 2261A(2)(A), (B), when he sent harassing and threatening text messages to a minor;
(2) failing to appear for his group counseling session;
(3) testing positive for marijuana 25 times;
(4) failing to submit urine specimens for testing; and
(5) failing to submit five monthly reports to his probation officer.
Mr. Wilford’s criminal history category was V, and he stipulated to Grade B
violations. See United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)
§ 7B1.4(a).1
1 The Government did not argue that his 18 U.S.C. § 875(c) violation was a Grade A violation, which could have resulted in a higher Guidelines range. See U.S.S.G. §§ 7B1.1(a)(1), 7B1.1 n.2, 4B1.2(a).
2 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 3
The district court calculated Mr. Wilford’s Guidelines range to be 18 to 24
months in prison. It sentenced him to 24 months followed by one year of supervised
Mr. Wilford filed a timely notice of appeal. His counsel filed a brief and
motion to withdraw under Anders v. California, 386 U.S. 738, 744 (1967), which
“authorizes counsel to request permission to withdraw where counsel conscientiously
examines a case and determines that any appeal would be wholly frivolous.” United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). This court sent the Anders
brief to Mr. Wilford and invited him to respond. He did not do so.
II. DISCUSSION
Anders provides that:
[I]f counsel finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. . . . [T]he court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal . . . .
386 U.S. at 744. When counsel submits an Anders brief, we review the record de
novo. United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016). The Anders
brief here addresses whether Mr. Wilford has any non-frivolous arguments to
challenge (1) the procedural reasonableness of his sentence, (2) the substantive
reasonableness of his sentence, or (3) the constitutionality of his original conviction
3 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 4
under 18 U.S.C. § 922(g). It concludes none has merit. Based on our de novo
review, we agree. We have not detected any other viable appeal issues.
A. Procedural Reasonableness
The Anders brief considers whether the record supports a challenge to the
procedural reasonableness of Mr. Wilford’s sentence and concludes it does not. We
agree. As the Anders brief correctly states, we would review the procedural
reasonableness of Mr. Wilford’s sentence for plain error because he did not challenge the
calculation of the Guidelines range or otherwise object on the ground of procedural error.
See United States v. Henson, 9 F.4th 1258, 1289 (10th Cir. 2021) (collecting cases
applying plain error review to procedural reasonableness), vacated on other grounds,
142 S. Ct. 2902 (2022) (mem.).
When reviewing a sentence for procedural reasonableness, we consider
whether the district court committed “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007); accord United States v. Lente, 647 F.3d 1021,
1030 (10th Cir. 2011).
We discern no error—let alone plain error—from our review of the record.
The district court correctly calculated the Guidelines range, considered the applicable
Guidelines policy statements, and recognized that the Guidelines are “advisory in
nature.” ROA, Vol. III at 14. It also “considered the guidelines along with certain
4 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 5
3553(a) factors that are specifically enumerated in Title 18 U.S.C. Section 3583(e),”
the revocation statute, “to reach what [it] believe[d] w[ould] be an appropriate and
reasonable sentence in this case.” Id. In particular, the court considered “the nature
and circumstances of the violation conduct,” Mr. Wilford’s “history and
characteristics,” and specific and general deterrence. Id. at 14-15.2 It also
recommended that the Bureau of Prisons evaluate Mr. Wilford for placement in a
vocational training program. Id. at 16.
Our review of the record has not identified a non-frivolous argument
Mr. Wilford could make to challenge the procedural reasonableness of his sentence
on appeal.
B. Substantive Reasonableness
The Anders brief considers whether the record supports a challenge to the
substantive reasonableness of Mr. Wilford’s sentence and concludes it does not. We
agree.
2 This case did not implicate “the need to avoid unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), or “the need to provide restitution to any victims of the offense,” id. § 3553(a)(7). See United States v. Fykes, No. 21-1222, 2022 WL 245516, at *2 (10th Cir. Jan. 27, 2022) (unpublished) (finding the district court satisfied § 3583(e) when it “consider[ed] at least one” of the enumerated factors (quotations omitted)); United States v. Fulton, 760 F. App’x 638, 640 (10th Cir. 2019) (unpublished) (finding the district court did not abuse its discretion when revoking supervised release under § 3583(e) because “[a]lthough [it] did not explicitly reference the § 3553(a) factors, it acknowledged that it had to consider those factors”). We cite unpublished opinions for their persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
5 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 6
We review Mr. Wilford’s challenge to the length of his sentence for abuse of
discretion. United States v. Sanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014). “A
sentence within a properly calculated Guidelines range is entitled to a presumption of
reasonableness.” United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006).
To rebut that presumption, the defendant must show “that the sentence is
unreasonable in light of the other sentencing factors laid out in § 3553(a).” United
States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per curiam).
Mr. Wilford’s within-Guidelines sentence is presumptively reasonable. See id.
We see no way for Mr. Wilford to overcome this presumption. As the district court
noted, Mr. Wilford violated his supervised release “by committing new law violations
[by] sending threatening and harassing text messages to a 16 year old victim, failing to
attend group counseling as directed, . . . submitting 25 urine specimens that tested
positive for marijuana,” “[f]ailing to provide urine specimens . . . [,] and failing to submit
monthly reports for” five months. ROA, Vol. III at 14-15. Mr. Wilford cannot make a
non-frivolous argument on appeal that the district court abused its discretion in imposing
a sentence at the top of the Guidelines range.
C. Constitutionality of Conviction
The Anders brief considers whether the record supports a challenge to the
constitutionality of Mr. Wilford’s original conviction for being a prohibited person in
possession of a firearm under 18 U.S.C. § 922(g). It concludes that Mr. Wilford
cannot make a non-frivolous challenge on appeal, and we agree.
6 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 7
The Anders brief identifies that “[i]n light of recent Supreme Court cases,”
Mr. Wilford could possibly challenge the constitutionality of 18 U.S.C. § 922(g)’s
prohibition on felons possessing firearms. Aplt. Doc. 34 at 10; see Vincent v.
Garland, 144 S. Ct. 2708 (2024) (mem.) (vacating our decision that bans on felons’
possession of firearms is constitutional under our circuit precedent “for further
consideration in light of” United States v. Rahimi, 144 S. Ct. 1889 (2024)). But see
Rahimi, 144 S. Ct. at 1902 (explaining that District of Columbia v. Heller, 554 U.S. 570,
626, 627 n.26 (2008), “stated that . . . prohibitions, . . . on the possession of firearms by
‘felons and the mentally ill[]’ are ‘presumptively lawful’”); McDonald v. City of Chicago
561 U.S. 742, 786 (2010) (reaffirming Heller’s “assurances” that prohibitions on felon’s
possession of firearms are presumptively lawful).
Mr. Wilford does not have a viable appellate argument on this basis because he
may not challenge his underlying conviction in this proceeding. See Rodgers v.
United States, 413 F.2d 251, 253 (10th Cir. 1969) (“The question of the validity of the
original judgment cannot be raised for the first time on appeal from an order revoking
probation.”); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“The exclusive
remedy for testing the validity of a judgment and sentence [after the time for direct
appeal has elapsed], unless it is inadequate or ineffective, is that provided for in
28 U.S.C. § 2255.” (quotations omitted)).3
3 See also United States v. Nevarez-Barela, 767 F. App’x 667, 669-70 (10th Cir. 2019) (unpublished) (“[A] direct appeal from the revocation of his supervised release is not the proper place to bring . . . claims” collaterally attacking an underlying conviction.); United States v. Echols, 33 F. App’x 376, 378 (10th Cir. 7 Appellate Case: 24-5059 Document: 46 Date Filed: 11/14/2024 Page: 8
III. CONCLUSION
Our independent review of the record reveals no non-frivolous grounds for
reversal. We grant counsel’s motion to withdraw and dismiss the appeal.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
2002) (unpublished) (revocation of supervised release proceedings “are not the proper context in which to explore any inadequacies in [the defendant’s] original conviction” and the defendant “must seek relief . . . in collateral proceedings under § 2255”); United States v. Willis, 563 F.3d 168, 170 (5th Cir. 2010) (“It is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence.”); United States v. Warren, 335 F.3d 76, 78 (2d Cir. 2003) (“We join other circuits in holding that the validity of an underlying conviction or sentence may not be collaterally attacked in a supervised release revocation proceeding and may be challenged only on direct appeal or through a habeas corpus proceeding.”).