United States v. Kirtman , 650 F. App'x 954 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
U N I T E D S T A T E S C O U R T O F A P P E A L S June 1, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5108
(D.C. No. 4:97-CR-00053-JHP-2)
DERRICK EUGENE KIRTMAN, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
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In 1997, Mr. Derrick Eugene Kirtman was convicted of conspiracy
to distribute crack cocaine and/or to possess crack cocaine with intent to
distribute. See 21 U.S.C. §§ 841,846. The initial sentence was life
imprisonment, but the sentence was later reduced to 456 months.
After failing in numerous efforts to vacate the conviction or reduce
the sentence, Mr. Kirtman filed a motion for a sentence reduction under
*
We conclude that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G). Thus, we have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
18 U.S.C. § 3582(c)(2). In this motion, he argued that the sentence
should be reduced because of an amendment to the U.S. Sentencing
Guidelines (Amendment 782). The district court concluded that Mr.
Kirtman was eligible for relief but declined to modify the sentence,
finding that Mr. Kirtman had beaten an unindicted coconspirator and
raped an uninvolved associate. He appeals.
Mr. Kirtman’s counsel regards all possible appeal points as
frivolous and has filed an Anders brief, reflecting counsel’s
conscientious examination of the case, identifying potentially
appealable issues notwithstanding his belief that the appeal would be
frivolous, and seeking leave to withdraw. Anders v. California, 386 U.S.
738, 744 (1967). Dissatisfied with counsel’s brief, Mr. Kirtman has filed
his own pro se brief, asking us to appoint new counsel. We grant
counsel’s request for leave to withdraw, decline to appoint a new
attorney for Mr. Kirtman, and dismiss the appeal.
Mr. Kirtman’s counsel has identified six potential issues:
1. The district court should have granted the motion to modify
the sentence.
2. The district court made factual errors in denying the motion
to modify the sentence.
3. The district court should have found actual innocence.
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4. The district court should have granted leave to file a
successive motion to vacate the sentence under 28 U.S.C.
§ 2255.
5. The district court should have amended the presentence report
to delete reference to the rape.
6. The district court should have reduced the sentence to 210
months.
For the reasons stated by defense counsel, all of these potential appeal
points would be frivolous.
In his pro se brief, Mr. Kirtman argues that (1) his counsel lied
about meeting with Mr. Kirtman and summarizing the information
gleaned from the grand jury transcript and (2) “[n]owhere in the court
proceeding did the Police Department submit the evidence of the amount
of drugs Mr. Kirtman was charged with.” Kirtman Pro Se Br. at 6-7.
These arguments do not support Mr. Kirtman’s request for new counsel or
reversal.
Even if Mr. Kirtman is correct about the lack of communication
with counsel, we must determine whether the record reflects any non-
frivolous appeal points. Counsel has not identified any, and Mr.
Kirtman’s only appeal point is difficult to understand. He claims that the
police department did not submit evidence of the drug quantity “in the
court proceeding.” Id. at 7. We are uncertain whether Mr. Kirtman is
referring to the grand jury’s proceedings or to the district court’s
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proceedings on the motion to modify the sentence. Either way, Mr.
Kirtman’s contention would not support reversal because § 3582(c)(2)
cannot be used to collaterally attack the original sentence. United States
v. Smartt, 129 F.3d 539, 543 (10th Cir. 1997).
Like Mr. Kirtman’s counsel, we have examined the appellate record
and conclude that any potential appeal points would be frivolous.
Accordingly, we decline to appoint new counsel for Mr. Kirtman,
authorize withdrawal of his present counsel, and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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