United States v. Meyers , 68 F. App'x 905 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 20 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 02-1393
(D.C. No. 01-CR-128-D)
v. (D. Colorado)
WILLIE VINCENT MYERS,*
Defendant-Appellant.
ORDER AND JUDGMENT**
Before KELLY, BRISCOE and LUCERO, 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). The case is therefore ordered
submitted without oral argument.
Defendant Willie Vincent Myers pled guilty to possession of a firearm by a
*
The record on appeal indicates the correct spelling of defendant’s name is
“Myers.” ROA, Vol. 4 at 66.
**
This order is not binding precedent, except under the doctrines of law of the case,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.
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a term of
imprisonment of 78 months. Myers appeals his sentence. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.
Myers’ counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967) (permitting counsel who considers an appeal to be wholly frivolous to advise
the court of that fact, request permission to withdraw, and submit a brief referring to
portions of the record that arguably support the appeal). Counsel has filed a motion to
withdraw and, as required, has provided copies of the Anders brief and the motion to
withdraw to Myers. Myers has not filed a response. Pursuant to our duty under Anders,
we have conducted an independent review of the record and find no basis for reversing
Myers’ sentence.
We find no merit to Myers’ assertion that the district court erred in enhancing his
sentence pursuant to U.S.S.G. § 2K2.1(b)(5) for use of a firearm in connection with
another felony. The court found that during an altercation in an automobile with his
girlfriend on January 29, 2001, Myers fired a gun three or four times at his girlfriend’s
legs but she avoided injury by pushing away the gun. We have reviewed the sentencing
transcript and conclude the district court’s factual findings were not clearly erroneous.
See United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003) (discussing standard of
review for district court’s factual findings and legal conclusions at sentencing). Further,
because this conduct could have given rise to a felony conviction under Colorado state
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law, we conclude the court properly applied the § 2K2.1(b)(5) enhancement. See
U.S.S.G. § 2K2.1, cmt. n.7 (defining “[f]elony offense” under subsection (b)(5) as “any
offense (federal, state, or local) punishable by imprisonment for a term exceeding one
year, whether or not a criminal charge was brought, or conviction obtained”).
We also find no merit to Myers’ assertion that the district court erred in enhancing
his sentence pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. It is uncontroverted
that, following his arrest, Myers sent letters to two key witnesses. After reviewing the
letters, the court found the intent of the letters was to ask the two witnesses “not to testify
or to tell the truth.” ROA, Vol. 4 at 78. The court also found that Myers broke one of the
witness’ car windows. We have reviewed the record and conclude the district court’s
factual findings are supported by the evidence and that the court properly applied the
enhancement for obstruction of justice. See U.S.S.G. § 3C1.1, cmt. n.4 (listing
threatening of witness as example of obstructive conduct); see also United States v.
Heckard, 238 F.3d 1222, 1232-33 (10th Cir. 2001) (affirming application of § 3C1.1
where defendant unlawfully attempted to influence a witness).
AFFIRMED. Counsel’s motion to withdraw is GRANTED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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