United States v. Gerdon ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 24, 2019
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6181
(D.C. No. 5:18-CR-00053-M-1)
ADRIAN DAVID RAY GERDON, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
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Adrian Gerdon appeals his conviction for being a felon in possession of a
firearm and his resulting 210-month prison sentence. See 18 U.S.C. § 922(g)(1); 18
U.S.C. § 924(e)(1). Defense counsel filed an Anders brief and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after
“conscientious examination” of record, counsel finds appeal “wholly frivolous,” then
counsel may move to withdraw and contemporaneously file “brief referring to
*
After examining the Anders brief and appellate record, this panel has
determined unanimously that oral argument wouldn’t 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
isn’t binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App.
P. 32.1; 10th Cir. R. 32.1.
anything in the record that might arguably support the appeal”). Gerdon did not file a
pro se response, and the government declined to file a brief. We have reviewed the
Anders brief and conducted a full examination of the record to determine whether
Gerdon’s appeal is wholly frivolous. See United States v. Calderon, 428 F.3d 928,
930 (10th Cir. 2005). Because we find that it is, we dismiss the appeal and grant
defense counsel’s motion to withdraw. See Anders, 386 U.S. at 744.
At the outset, we note that Gerdon waived any nonjurisdictional challenge to
his conviction by entering a voluntary and unconditional guilty plea. See United
States v. De Vaughn, 694 F.3d 1141, 1145–46 (10th Cir. 2012).1 As for any potential
jurisdictional challenge, nothing in the record suggests that the district court lacked
subject-matter jurisdiction. See id. at 1153 (explaining that in this context,
jurisdictional challenge equates to subject-matter jurisdiction).
That leaves Gerdon’s sentence. In reviewing his sentence, we “must first
ensure that the district court committed no significant procedural error.” Gall v.
United States, 552 U.S. 38, 51 (2007). And “if the district court’s decision is
‘procedurally sound,’ we ‘then consider the substantive reasonableness of the
sentence imposed.’” United States v. Lucero, 747 F.3d 1242, 1246 (10th Cir. 2014)
(quoting Gall, 552 U.S. at 51).
1
There are two narrow constitutional exceptions to this general waiver rule,
but nothing in the record indicates that Gerdon has a nonfrivolous double-jeopardy or
vindictive-prosecution claim. See De Vaughn, 694 F.3d at 1145–46.
2
Here, nothing in the record indicates any procedural error. As defense counsel
explains in his Anders brief, the district court correctly calculated Gerdon’s
sentencing range under the United States Sentencing Guidelines (the Guidelines).
More specifically, we discern no legal or factual error in the district court’s
determination that Gerdon had at least three prior convictions for violent felonies,
thereby triggering the 15-year statutory minimum sentence in § 924(e)(1). Nor do we
find any error in the district court’s assessment of Gerdon’s total offense level of 30,
his criminal-history category of VI, and his resulting Guidelines range of 180 to 210
months. Thus, any procedural challenge to Gerdon’s sentence would be wholly
frivolous.
Any challenge to the substantive reasonableness of Gerdon’s sentence—which
is the challenge that defense counsel highlights in his Anders brief—would also be
frivolous. Substantive reasonableness depends on “whether the length of the sentence
is reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215
(10th Cir. 2008) (quoting United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.
2007)). “When reviewing a sentence for substantive reasonableness, this court
employs the abuse-of-discretion standard, a standard requiring ‘substantial deference
to district courts.’” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)
(internal citation omitted) (quoting United States v. Sells, 541 F.3d 1227, 1237 (10th
Cir. 2008)). And because Gerdon’s 210-month sentence falls within the Guidelines
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range, we presume his sentence is substantively reasonable. See Alapizco-Valenzuela,
546 F.3d at 1215.
Of course, Gerdon “may rebut this presumption by showing that his sentence is
unreasonable in light of” the § 3553(a) factors. Id. But we see nothing in the record
to indicate that Gerdon can make that showing. In fact, the district court here ordered
Gerdon’s federal sentence to run concurrently—rather than consecutively, as
recommended by the Guidelines—with Gerdon’s state-court sentences. See U.S.S.G.
§ 5G1.3 cmt. n.4(C). Thus, although the district court imposed a sentence at the top
of the Guidelines range and above the statutory minimum, it also imposed a sentence
that will result in substantially fewer total years of incarceration for Gerdon than if it
had followed the recommendation in the Guidelines. Accordingly, we conclude that
any challenge to the substantive reasonableness of Gerdon’s sentence would also be
wholly frivolous.
Because our examination of the record reveals no other nonfrivolous basis for
appeal, we dismiss the appeal and grant defense counsel’s motion to withdraw. See
Calderon, 428 F.3d at 930.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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