United States v. Taylor ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 24 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-3380
v. (District of Kansas)
(D.C. No. 99-CR-20027)
JEFFERY L. TAYLOR,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). This court
therefore honors the parties’ requests and orders the case 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This order and judgment is not binding precedent, except under the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.
Jeffery Taylor pleaded guilty to three counts of possessing, with intent to
distribute, cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced Taylor to a 188-month term of imprisonment, a sentence at the absolute
low end of the sentencing range set out in the United States Sentencing
Guidelines (“U.S.S.G.”). This case is before the court on counsel’s brief filed
pursuant to Anders v. California, 386 U.S. 738 (1967) and accompanying request
to withdraw. 1 After a searching review of the record, we conclude that this court
lacks jurisdiction to review the sentencing issue set forth in counsel’s Anders
brief 2 and that the appellate record reveals no other non-frivolous issues.
Accordingly, this court grants counsel leave to withdraw and dismisses this
appeal for lack of jurisdiction.
In March of 1999, Taylor was indicted on four counts of possessing cocaine
base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), one count of
1
Although counsel did not file a separate motion to withdraw, this court
will treat counsel’s Anders brief as containing such a motion. See Anders v.
California , 386 U.S. 738, 744 (1967) (“[I]f counsel finds his case to be wholly
frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw. That request must, however, be accompanied
by a brief referring to anything in the record that might arguably support the
appeal.”).
2
After the filing of counsel’s Anders brief, this court advised Taylor that
counsel had filed a brief stating a belief that the appeal was frivolous and
requesting permission to withdraw from the case. The letter further informed
Taylor that he had 30 days to respond to counsel’s Anders brief. Taylor never
filed a response.
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possessing a weapon following a felony conviction in violation of 18 U.S.C. §
922(g), and one count of carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Taylor eventually entered an
unconditional guilty plea to three of the possession-with-intent-to-distribute
counts. In calculating Taylor’s sentence under the U.S.S.G., the district court
concluded that Taylor had a criminal history category of VI by operation of
U.S.S.G. § 4B1.1. 3 It is uncontested that Taylor falls within the parameters of §
4B1.1 and Taylor never objected to the applicability of § 4B1.1 at sentencing. In
fact, the only objection Taylor lodged at sentencing related to a proposed increase
in his base offense level for obstruction of justice, an objection which the district
court sustained. Otherwise, Taylor’s counsel specifically acknowledged at the
sentencing hearing that the presentence report was factually accurate and legally
correct with respect to the U.S.S.G. calculations.
3
Section 4B1.1 provides, in relevant part, as follows:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction, (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense,
and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense. . . . A
career offender’s criminal history category in every case shall be
Category VI .
U.S.S.G. § 4B1.1 (emphasis added).
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On appeal, Taylor asserts that the district court erred when it failed to sua
sponte depart downward from the otherwise applicable U.S.S.G. sentencing range
based upon the following two factors: (1) the passage of time between the
offenses used to define Taylor as a career offender under § 4B1.1 and the
offenses of conviction; and (2) Taylor’s past and continuing cooperation with
authorities. Setting aside the fact that this departure argument is raised for the
first time on appeal and therefore waived, 4 this court has repeatedly noted, as
counsel recognizes in his Anders brief, that “[a]bsent the trial court’s clear
misunderstanding of its discretion to depart, or its imposition of a sentence which
violates the law or incorrectly applies the guidelines, we have no jurisdiction to
review a refusal to depart.” United States v. Coddington, 118 F.3d 1439, 1441
(10th Cir. 1997) (quotation omitted) (collecting cases). A review of the entire
appellate record, with particular reference to the transcript of the sentencing
hearing, reveals nothing to indicate the district court believed it lacked the power
to depart downward on those bases belatedly advanced by Taylor on appeal. Nor
is there any indication that the sentence was based upon an impermissible factor.
Accordingly, this court lacks jurisdiction to review the district court’s “refusal” to
depart downward sua sponte.
4
It should be noted, however, that Taylor’s counsel did raise both issues in
successfully arguing that the district court should sentence Taylor at the absolute
low end of the U.S.S.G. sentencing range.
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This court hereby GRANTS counsel leave to withdraw and DISMISSES
the appeal for lack of jurisdiction.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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