United States v. Lawlor

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 14 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-1386
(D.C. No. 00-CR-205-M)
BURT F. LAWLOR, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs 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.
Defendant Burt F. Lawlor pled guilty to one count of mail fraud and one
count of making a false statement to a financial institution. The parties ultimately
*
This order and judgment is not binding precedent, except under the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.
concurred on appropriate loss/restitution figures, and the government agreed to
request a one-level downward departure for assistance provided by Lawlor under
U.S.S.G. § 5K1.1. Lawlor, however, sought a further departure of two more
levels. At sentencing, the district court adopted the agreed-upon figures and, after
acknowledging its discretion to resolve the competing departure requests, reduced
the offense level by one. As a result, the court imposed two concurrent five-month
terms of imprisonment followed by two concurrent three-year terms of supervised
release (with five months’ home detention), and ordered Lawlor to pay a total of
$27,507.53 in restitution to two financial institutions and one individual victim.
Following the entry of judgment, Lawlor appealed.
Lawlor’s counsel filed a brief pursuant to Anders v. California , 386 U.S.
738 (1967), and moved for leave to withdraw from representation, based on his
assessment that there were no grounds for appeal. The brief anticipates several
claims from defendant and summarizes why each is demonstrably meritless: any
objection regarding amount of loss/restitution has been waived, see United States
v. Overholt , 307 F.3d 1231, 1253 (10 th Cir. 2002), the offense level was correctly
calculated (and, we also note, no relevant objection was preserved at sentencing),
and the district court’s discretionary refusal to depart to the extent requested by
defendant is not subject to appeal, see United States v. Fortier , 180 F.3d 1217,
1230 (10 th Cir. 1999). We agree with counsel’s assessment of the merits.
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Lawlor has moved for appointment of new counsel, but has not suggested
how the patent deficiencies pointed out in the Anders brief could be overcome.
Rather, he baldly asserts that his sentence and restitution “are based on incorrect
facts and assumptions,” without any indication, much less substantiation, of what
contrary facts and inferences should have determined his sentence.
After a careful review of the record and materials before us, we conclude
there are no grounds for appeal. Accordingly, we GRANT appellate counsel’s
request to withdraw, DENY appellant’s motion for appointment of new counsel,
and DISMISS the appeal.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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