United States v. Hooks ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                          AUG 20 2003
    TENTH CIRCUIT                      PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 02-5158
    v.
    (D.C. No. 00-CR-149-K)
    (N.D. Oklahoma)
    ANDRE EDWARD HOOKS, a/k/a
    Andre Edward Simmons,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
    Andre Edward Hooks appeals his resentencing for his conviction for
    possession of a firearm after conviction of a felony. Mr. Hooks’ counsel filed a
    brief pursuant to Anders v. California, 
    386 U.S. 738
     (1967), and moves for leave
    to withdraw as counsel. For the reasons set out below, we grant counsel’s motion
    *
    After examining appellant’s brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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    judgment is not binding precedent, except under the doctrines of law of the case,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. The court generally disfavors the citation of
    orders and judgments; nevertheless, an order and judgment may be cited under the
    terms and conditions of 10th Cir. R. 36.3.
    to withdraw and dismiss the appeal.
    Mr. Hooks was originally convicted of two firearm possession charges. On
    direct appeal to this court, one of those convictions was vacated based on a
    double jeopardy violation. See United States v. Hooks, No. 01-5097, 
    2002 WL 126999
     (10th Cir. Feb. 1, 2002) (unpublished disposition). The case was
    remanded for resentencing on the remaining conviction. Mr. Hooks was
    resentenced to fifty-five months imprisonment, which was at the low end of the
    applicable guideline range of fifty-one to sixty-three months and well below the
    statutory maximum of ten years. The term of imprisonment was the same as the
    one originally imposed for this conviction. Neither Mr. Hooks nor his attorney
    raised any objections at the resentencing proceeding.
    Anders holds that if counsel finds a case to be wholly frivolous after
    conscientious examination, he may advise the court and request permission to
    withdraw. Counsel must also submit to both the court and his client a brief
    referring to anything in the record arguably supportive of the appeal. Anders, 
    386 U.S. at 744
    . The client may then raise any point he chooses, and the court
    thereafter undertakes a complete examination of all proceedings and decides
    whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s
    request to withdraw and dismiss the appeal. 
    Id.
     Counsel provided Mr. Hooks
    with a copy of the appellate brief. Mr. Hooks in turn filed a pro se appellate
    -2-
    brief.
    It is important to note at the outset that because this is an appeal of a
    resentencing only, any issues on appeal must relate to that resentencing. Any
    issue related to the conviction itself that could have been raised in the prior direct
    appeal has been waived and may not now be considered. See United States v.
    Parker, 
    101 F.3d 527
    , 528 (7th Cir. 1996). Mr. Hooks’ pro se argument does not
    encompass any issue relevant to resentencing. The only issue Mr. Hooks raises in
    his pro se filing appears to relate to the sufficiency of evidence at trial. This
    issue, which could have been raised on the original direct appeal, has been waived
    and we do not consider it here.
    As Mr. Hooks’ attorney notes in his Anders brief, a sentence that is within
    the correct guideline range, barring a few narrow exceptions, is not appealable.
    United States v. Garcia, 
    919 F.2d 1478
    , 1481 (10th Cir. 1990). After careful
    review, we agree with counsel that no non-frivolous grounds for appeal appear on
    this record. We see no error in the resentencing proceeding.
    Accordingly, we GRANT counsel’s motion to withdraw and we DISMISS
    the appeal.
    ENTERED FOR THE COURT
    Stephanie K. Seymour
    Circuit Judge
    -3-
    

Document Info

Docket Number: 02-5158

Judges: Murphy, O'Brien, Seymour

Filed Date: 8/20/2003

Precedential Status: Non-Precedential

Modified Date: 11/6/2024