United States v. White , 433 F. App'x 681 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
August 19, 2011
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No.10-3338
v. (D.C. No. 2:09-CR-20143-CM-3)
CLAUDE WHITE, (D. Kansas)
Defendant–Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
After examining defense counsel’s Anders brief, Appellant’s response, and
the 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). This case is therefore ordered submitted
without oral argument.
Appellant Claude White pled guilty to bank robbery, attempted bank
robbery, and using and carrying a firearm in furtherance of a crime of violence.
The district court calculated an advisory guideline range of 130-162 months’
*
This order and judgment is not binding precedent, except under the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.
imprisonment for the bank robbery counts, plus a mandatory minimum sentence
of 60 months for the 18 U.S.C. § 924(c) firearm count. The court then imposed a
mid-range sentence of 144 months on the robbery counts. Combined with the
consecutive § 924(c) sentence, this resulted in a total sentence of 204 months.
On appeal, Appellant’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), explaining why counsel believes there to be no
meritorious grounds for appeal. In response, Appellant filed a letter requesting
additional time to respond to the Anders brief. Although Appellant was granted
an extension of time to respond, he never filed additional responsive materials.
However, his initial letter to the court identified the issues he wanted to pursue on
appeal, which we address below. The government declined to file an answer
brief.
After conducting “a full examination of all the proceedings,” id. at 744, we
agree with defense counsel that Appellant has no non-frivolous grounds to raise in
this appeal. The first potential issue Appellant identifies for appeal is a challenge
to the effectiveness of his attorney. However, “the preferred avenue for
challenging the effectiveness of counsel in a federal criminal case [i]s via
collateral attack,” United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993),
and we are persuaded this case falls within our general rule against resolving
ineffective assistance claims on direct appeal.
Appellant’s response letter also identifies three potential challenges to the
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procedural reasonableness of his sentence, but we conclude that these challenges
do not raise a non-frivolous issue for appeal. Appellant first argues the court
erred in imposing a five-level enhancement for firearm possession during the
successful bank robbery, since his corresponding § 924(c) firearm charge was
dismissed pursuant to the plea agreement. 1 However, the facts underlying a
dismissed count may be considered relevant conduct during a sentencing
proceeding, see United States v. Svacina, 137 F.3d 1179, 1184 (10th Cir. 1998),
and we see no error in the application of this enhancement. On the basis of the
record before us, we also see no error in the calculation of Appellant’s criminal
history. As for Appellant’s final allegation of error, this appears to be a challenge
to the consecutive nature of his 60-month § 924(c) sentence. However, the
district court was mandated by statute to run this sentence consecutively, see 18
U.S.C. § 924(c)(1)(D)(ii), and it acted in accordance with this mandate.
The record likewise reveals no meritorious appellate issues regarding the
substantive reasonableness of Appellant’s sentence. Defense counsel suggests
that Appellant could potentially raise a substantive reasonableness challenge
based on the disparity between his sentence and the sentence received by his co-
defendants, but this disparity is explained by his more extensive criminal history
1
The § 924(c) charge to which Appellant pled guilty related to his
attempted robbery, not the successful robbery. Pursuant to USSG § 2K2.4
Application Note 4, no enhancement was applied for Appellant’s firearm
possession during the attempted robbery.
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and would not support a reasonableness challenge in any event. See United States
v. Rojas, 531 F.3d 1203, 1209-10 (10th Cir. 2008). Nor do we see any other basis
in the record for Appellant to rebut the presumption of reasonableness attached to
his within-guidelines sentence.
Because our review of the record persuades us that Appellant can raise no
meritorious issue on appeal, we GRANT counsel’s motion to withdraw and
DISMISS the appeal. Counsel’s motion to supplement the record on appeal is
GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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