United States v. Smith ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 3 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7095
(D.C. No. 99-CR-22-S)
CLAUDE HAROLD SMITH, JR., (E.D. Okla.)
a/k/a Doobie,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and PORFILIO, Circuit Judges.
After examining appellant’s brief and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the brief
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case
is therefore ordered 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This order and judgment is not binding precedent, except under the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.
Claude H. Smith, Jr., pled guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g), 924(e). Mr. Smith objected to
that portion of the presentence report which recommended enhancement of his
sentence, pursuant to U.S.S.G. § 4B1.4(a) and 18 U.S.C. § 924(e) (Armed Career
Criminal provisions), in light of his previous felony convictions for violent
crimes. Mr. Smith argued that although he had been convicted on three occasions
of second degree burglary, in no instance had there been any record established
that his conduct was violent. The probation officer responded by noting that
burglary is listed as a violent offense in 18 U.S.C. § 924(e). The district court
adopted the presentence report over Mr. Smith’s objection, ruling that the
appropriate Guideline Offense Level was 24 with enhancement to Level 30 by
reason of the Armed Career Criminal provisions and criminal history level VI.
Mr. Smith was sentenced to 210 months’ imprisonment plus 60 months’
supervised probation and fined $100.
Mr. Smith requested appeal of his sentence, and his attorney complied and
perfected the appeal. However, Mr. Smith’s attorney filed an Anders brief, see
Anders v. California, 386 U.S. 738, 744-45 (1967), and a motion to withdraw,
stating that he believed the appeal has no merit.
“Review of a sentence enhancement under the Armed Career Criminal Act
is a legal issue subject to de novo review.” United States v. Moudy, 132 F.3d 618,
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619 (10th Cir. 1998). Except for facial illegality, improper calculation, or clearly
erroneous fact findings, the court lacks jurisdiction for appellate review of a
sentence which is within the appropriate sentencing guideline range. See United
States v. Garcia, 919 F.2d 1478, 1480-81 (10th Cir. 1990). After thorough review
of the record, we have determined that there is no error in Mr. Smith’s sentencing,
and we hold that we lack jurisdiction for appellate review.
Attorney Mark Green’s motion to withdraw is granted. This appeal is
hereby DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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