United States v. Dooley

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-1506
v. (D.C. No. 02-CR-342-WM)
(Colorado)
TERRY LEE DOOLEY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.
Terry Lee Dooley pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g) and 924(e)(1). He now seeks to challenge his
conviction and sentence. Counsel for Mr. Dooley filed a brief pursuant to Anders
*
After examining appellant’s brief and the 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) and 10th Cir. R. 34.1(G).
The case is therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, or
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.
v. California, 386 U.S. 738 (1967), contending there are no non-frivolous issues
for appeal and seeking to withdraw. We exercise jurisdiction pursuant to 28
U.S.C. § 1291, grant counsel’s motion to withdraw, and dismiss the appeal.
Mr. Dooley pled guilty to being a felon in possession of a firearm pursuant
to a plea agreement with the government. The parties agreed to a sentence of 188
months pursuant to F ED . R. C RIM . P. 11(c)(1)(C), and the government agreed to
recommend a sentence at the low end of that range. Mr. Dooley also agreed to
waive “any right he may have for a grand jury indictment and a jury determination
of any and all facts relevant to the application of any Sentencing Guideline factor
that may exist under Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v.
New Jersey, 530 U.S. 466 (2000), and any other case interpreting these two
Supreme Court decisions.” Rec., vol. I, doc. 73 at 2; id., vol. III at 3, 15, 24. Mr.
Dooley was sentenced to a term of 188 months. He timely filed pro se a notice of
appeal, stating he sought to appeal his “judgment and conviction, including the
sentence imposed.” Id., vol. I, doc. 87.
In the Anders brief, Mr. Dooley’s counsel notes that because Mr. Dooley
pled guilty, “the only possible avenues for appeal would be irregularities in the
guilty plea, or sentencing errors.” Aplt. br. at 5. Counsel reasoned that because
there were no irregularities attending Mr. Dooley’s guilty plea, and because Mr.
Dooley waived his right to a grand jury indictment and a jury determination of
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any fact relevant to any sentencing guideline factor, there were no non-frivolous
grounds upon which Mr. Dooley could appeal. Notwithstanding the opportunity
to do so, Mr. Dooley has not responded to his attorney’s Anders brief, and the
government has declined to file a brief. Pursuant to Anders, we must conduct “a
full examination of all the proceedings” to determine if Mr. Dooley’s appeal is
wholly frivolous. 386 U.S. at 744.
Defense counsel is correct to note that Mr. Dooley’s guilty plea was valid.
The record indicates the trial court followed the procedures required by the
Federal Rules of Criminal Procedure regarding guilty pleas. See F ED . R. C RIM . P.
11(b)(1) (detailing procedures required to ensure defendant’s understanding prior
to accepting plea), 11(b)(2) (ensuring plea is voluntary), and 11(b)(3)
(establishing factual basis for plea); see also United States v. Rhodes, 913 F.2d
839, 843 (10th Cir. 1990) (guilty plea must be knowing and voluntary in order to
be valid). In the course of Mr. Dooley’s plea proceedings, the trial court also
established that Mr. Dooley understood he was waiving any right to a jury
determination of any sentencing factors used to calculate his sentence. Rec., vol.
III at 7, 17, 20-21, 25-26. We see no infirmities in Mr. Dooley’s guilty plea, and
he therefore lacks any non-frivolous grounds to challenge his conviction.
Mr. Dooley’s sentence pursuant to Rule 11(c)(1)(C) further undermines any
sentencing challenge he might wish to raise. Rule 11(c)(1)(C) provides the
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parties may “agree that a specific sentence or sentencing range is the appropriate
disposition of the case, . . . (such a recommendation or request binds the court
once the court accepts the plea agreement).” F ED . R. C RIM . P. 11(c)(1)(C).
Where a defendant agrees to and receives a specific sentence, that
defendant may only appeal the sentence if it was (1) imposed in
violation of law, (2) imposed as a result of an incorrect application of
the guidelines, or (3) is greater than the sentence set forth in the plea
agreement.
United States v. Silva, 413 F.3d 1283, 1284 (10th Cir. 2005) (citing 18 U.S.C. §
3742(a) and (c); United States v. Denogean, 79 F.3d 1010, 1013-14 (10th
Cir.1996)). Here, the only conceivable ground upon which Mr. Dooley might
appeal his sentence is an argument that his sentence was imposed in violation of
law, i.e., that he was sentenced under a mandatory sentencing scheme in violation
of United States v. Booker, 543 U.S. 220 (2005). We foreclosed that argument in
Silva, where we held that nothing in the Blakely/Apprendi/Booker line of cases
“undermines the validity of sentences imposed under Rule 11(c)(1)(C).” Silva,
413 F.3d at 1284. There was nothing unlawful about Mr. Dooley’s sentence
warranting appeal.
Accordingly, we DISMISS the appeal and grant counsel’s request to
withdraw.
SUBMITTED FOR THE COURT
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Stephanie K. Seymour
Circuit Judge
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