United States v. Rayford (Paul) ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 10, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3192
v. (D.C. No. 2:09-CR-20143-CM-2)
(D. Kansas)
PAUL G. RAYFORD,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.
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.
On March 9, 2010, defendant and appellant Paul G. Rayford pled guilty to
one count of attempted bank robbery, in violation of 18 U.S.C. § 2113(a) and (2);
one count of carrying and using a firearm during and in relation to the attempted
*
This order and judgment is not binding precedent except under the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.
bank robbery, in violation of 18 U.S.C. § 924(c)and (2); and one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), (a)(2) and
(e). He was sentenced to concurrent 84-month terms of imprisonment for the
attempted bank robbery and felon-in-possession counts, followed by a consecutive
60-month sentence for the use-of-a-firearm count, for a total of 144 months’
imprisonment. Mr. Rayford filed a timely Notice of Appeal, and his appointed
counsel, David A. Kelly, filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), moving to withdraw as counsel. For the reasons set forth below, we
agree with Mr. Kelly that the record in this case provides no nonfrivolous basis
for an appeal, and we therefore grant his motion to withdraw and dismiss this
appeal.
BACKGROUND
On October 22, 2009, Mr. Rayford, along with his father, Kenneth Rayford,
and a man named Claude White, attempted to rob the Interstate Federal Savings
Bank in Kansas City, Kansas. Federal law enforcement personnel had been
conducting surveillance of the Rayfords and, based on intercepted telephone calls
obtained pursuant to a court-ordered Title III wiretap, they knew that the trio
were planning to rob the bank. The officers accordingly were already on site and
had directed the bank employees to lock the doors to the bank.
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When Mr. Rayford and Mr. White tried to open the bank doors, they were
apprehended, along with Kenneth Rayford, who was sitting in a car a short
distance away. Mr. Rayford was wearing a bullet-proof vest when he was
arrested, and a semi-automatic pistol was discovered on the driver’s seat of the
car Mr. Rayford had driven to the bank. 1
As indicated above, Mr. Rayford pled guilty on March 8, 2010, to the three
counts at issue. In preparation for sentencing under the advisory United States
Sentencing Commission, Guidelines Manual (2009) (“USSG”), the United States
Probation Office prepared a presentence report (“PSR”). The PSR calculated for
Mr. Rayford a total offense level of 23 and a criminal history category of V. One
of several reasons why Mr. Rayford’s criminal history score was high (besides his
extensive background of crime) was that he was on probation when he committed
the instant crimes. With a total offense level of 23 and a criminal history
category of V, the advisory Guidelines sentencing range for the attempted robbery
and felon-in-possession counts was 84 to 105 months. The advisory Guideline
sentence for the use-of-a-firearm count was 60 months, and it was required to be
served consecutively to the other imprisonment terms. See 18 U.S.C. § 924(c);
USSG §§5G1.2(a) and 2K2.4(b).
1
We have very recently affirmed the 168-month sentence of Kenneth
Rayford for the instant robbery, as well as two other completed armed bank
robberies. United States v. Rayford, No. 10-3291 (May 10, 2011).
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Mr. Rayford filed objections to the PSR, challenging the PSR’s conclusion
that the 60-month sentence imposed for the violation of 18 U.S.C. § 924(c) (use-
of-a-firearm) must be imposed consecutively to the sentence for the other counts
of conviction. He argued that our circuit had held that the sentence for the
§ 924(c) violation needed to be served consecutively to other sentences only when
the other sentences were mandatory. The government and the court disagreed with
Mr. Rayford, arguing, quite correctly, that he had misread our cases. They
concluded that we have determined that § 924(c) requires a consecutive
mandatory minimum sentence regardless of whether the other crimes of conviction
(other than the § 924(c) charge) carry a mandatory minimum. 2 See United States
v. Wheeler, 230 F.3d 1194 (10th Cir. 2000); United States v. Bazile, 209 F.3d
1205 (10th Cir. 2000). The court accordingly sentenced Mr. Rayford to 144
months’ imprisonment.
Mr. Rayford timely filed his notice of appeal challenging his sentence. As
indicated, his appointed counsel, Mr. Kelly, has moved to withdraw as counsel
pursuant to Anders. Mr. Rayford has filed a pro se half-page response to his
attorney’s Anders brief. The government has, in turn, filed a brief addressing the
issues Mr. Rayford raises pro se.
2
Mr. Rayford’s attorney suggests that the fact that the propriety of our case
law on this general issue is before the Supreme Court pending a decision allows
Mr. Rayford to argue that we should not affirm his sentence. That fact does not
convince us to disregard our case law. See Gould v. United States, No. 09-7073
(orally argued Oct. 4, 2010).
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DISCUSSION
In Anders, the Supreme Court held that if a defendant’s 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.” Anders, 386
U.S. at 744. Counsel must submit to both the court and his client a “brief referring
to anything in the record that might arguably support the appeal.” Id. The
defendant may then “raise any points that he chooses.” Id.The reviewing court must examine all the proceedings to determine whether
the appeal is frivolous. Id. If the court so finds, it may grant defense counsel’s
request to withdraw and dismiss the appeal. Id. “On the other hand, if it finds any
of the legal points arguable on their merits (and therefore not frivolous) [the
reviewing court] must, prior to decision, afford the indigent [defendant] the
assistance of counsel to argue the appeal.” Id.In this case, Mr. Rayford has submitted a short letter to the court in response
to his counsel’s Anders brief and motion to withdraw. In his letter, he asks us to
reverse his sentence on two grounds not previously raised. He argues that he
received extra, and unwarranted, criminal history points in connection with his two
prior drug trafficking convictions. More specifically, Mr. Rayford claims that,
because he was sentenced on the same day for the two convictions and because the
two convictions shared the same docket number, he should have received only two
criminal history points for them, rather than four. He also argues that points were
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erroneously added to his total offense level because he was on probation when he
committed the instant offenses, and that probation status no longer is grounds for
additional points.
Mr. Rayford failed to argue these claimed errors below, so we can review
them only for plain error. United States v. Mike, 632 F.3d 686, 691 (10th Cir.
2011). To establish plain error, Mr. Rayford must show “(1) error, (2) that is
plain, which (3) affects substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 691-92.
Mr. Rayford’s arguments are easily addressed and provide no nonfrivolous
basis for an appeal. First, with regard to his claim about extra criminal history
points being improperly assigned, he is factually wrong. While he fails to identify
what prior drug trafficking crimes he is addressing, there are only two such prior
crimes for which he was assessed points. He was arrested for drug trafficking on
August 4, 1999, when an officer found 6.56 grams of cocaine in his car following
a traffic stop. On October 10, 2000, he pled guilty and was sentenced in Jackson
County, Missouri, to ten years’ imprisonment, under case number CR99-6058.
PSR ¶ 50, R. Vol. 3 at 11. In the other case, he was arrested on November 20,
1999, for selling crack cocaine in a controlled buy. On October 12, 2000, he was
convicted following a jury trial and sentenced again in Jackson County, Missouri,
to five years’ imprisonment, under case number 16CR1680. Id. ¶ 51, id. at 12.
The only common thread between the two cases is that both sentences were stated
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to run consecutively to each other, and in both cases the court granted Mr. Rayford
release from imprisonment on March 19, 2001.
USSG §4A1.2(a)(2) determines whether sentences are counted separately or
as a single sentence under the advisory Guidelines:
If the defendant has multiple prior sentences, determine
whether those sentences are counted separately or as a single
sentence. Prior sentences always are counted separately if the
sentences were imposed for offenses that were separated by an
intervening arrest (i.e., the defendant is arrested for the first offense
prior to committing the second offense). If there is no intervening
arrest, prior sentences are counted separately unless (A) the sentences
resulted from offenses contained in the same charging instrument; or
(B) the sentences were imposed on the same day. Count any prior
sentence covered by (A) or (B) as a single sentence. . . .
Thus, as the government points out, there are two possible scenarios. If the
sentences were imposed for offenses that were separated by an intervening arrest,
the sentences must be counted separately. If, however, there was no intervening
arrest, the prior sentences are counted separately unless the sentences resulted
from offenses contained in the same charging instrument or the sentences were
imposed on the same day. Mr. Rayford’s PSR shows he was arrested on separate
dates for the two drug incidents, but it does not say whether the second offense
was committed before or after the arrest for the first incident. But even if they
were not separated by an intervening arrest, the prior offenses should have been
counted as a single sentence if they were charged together or sentences for them
were imposed on the same day. The PSR indicates they had separate case numbers
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(and inferentially were not charged together) and they were not imposed on the
same day. Mr. Rayford has accordingly not demonstrated that there was an error
in the calculation of his criminal history points for his prior drug-related
convictions.
Mr. Rayford also received two additional criminal history points under
USSG §4A1.1(d) because he committed the instant offenses while he was on
probation. He claims this is wrong, as it has been “brought to [his] attention” that
points would no longer be assessed if he was on probation when his current crime
of conviction occurred. Letter dated 1/13/2011. This is not so. The Guideline
provision (USSG § 4A1.1(d)) under which Mr. Rayford was assessed points
remains unchanged. In any event, he was sentenced under the 2009 version of the
Guidelines, and there is no dispute that, under that version, he was properly
assessed two points for committing the instant offenses while on probation. See
USSG § 4A1.1(d).
We see no other grounds for reversing Mr. Rayford’s sentence. We review a
district court’s sentencing determinations for procedural and substantive
reasonableness, employing a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). When a defendant is sentenced within a
properly-calculated Guidelines range, the sentence is “entitled to a rebuttable
presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006). As indicated above, the district court in this case properly
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calculated the applicable advisory sentencing range, so there is no procedural error
here. And we therefore presume the sentence to be substantively reasonable. The
court considered the 3553(a) factors and explained why it assessed the sentence it
did.
We have carefully reviewed the record, and it shows no error in the court’s
determination of the facts or calculation of the advisory Guideline range, or
anything else which would overcome the presumption that Mr. Rayford’s sentence
is substantively reasonable. Therefore, any argument that the district court’s
sentence was unreasonable would be frivolous.
CONCLUSION
For the foregoing reasons, we GRANT defense counsel’s motion to
withdraw and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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