United States v. McKee

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 17, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-5154
v. (N.D. Oklahoma)
CLINTON RAY McKEE, (D.C. No. 4:07-CR-00090-TCK)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Clinton Ray McKee pled guilty to two counts of
making a false statement to a financial institution, in violation of 18 U.S.C.
§ 1014; one count of misapplication of bank funds, in violation of 18 U.S.C.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 656; and one count of misapplication of credit union funds, in violation of 18
U.S.C. § 657. He was sentenced to twenty-one months’ imprisonment on each
count, to run concurrently, followed by five years of supervised release. McKee
was also assessed $100 for each count, and ordered to pay restitution in the
amount of $28,702.66. He seeks to appeal that conviction and/ or sentence.
During the plea colloquy prior to the entry of his guilty plea, the court
specifically established that McKee was competent, that he was satisfied with his
counsel, that he was pleading without coercion, that he was aware of the charges
against him and the range of punishment, and that he knew what trial rights he
waived by pleading guilty. In preparation for sentencing, the United States
Probation Office prepared a presentence report (“PSR”). The PSR calculated the
applicable offense level as 16, which, with a criminal history category of I,
yielded an advisory sentencing range under the United States Sentencing
Commission, Guidelines Manual (USSG), of 21 to 27 months. At sentencing,
McKee made no objection to the PSR. The court then sentenced McKee to
twenty-one months’ imprisonment, at the low end of the advisory Guideline
range.
McKee’s retained counsel, Beverly A. Atteberry, has filed an Anders brief
and has moved to withdraw as counsel. See Anders v. California, 386 U.S. 738
(1967). McKee has not filed a response and the government has declined to file a
brief. We therefore base our conclusion on counsel’s brief and our own careful
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review of the record. For the reasons set forth below, we agree with Ms.
Atteberry that the record in this case provides no nonfrivolous basis for an appeal,
and we therefore grant her motion to withdraw and dismiss this appeal.
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] where counsel conscientiously examines a case and determines that any
appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930
(10 th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel
to:
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The court must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744). As indicated, McKee’s counsel has filed her
Anders brief, to which neither McKee nor the government has responded.
This appeal could conceivably have merit only if the guilty plea was
involuntary or otherwise invalid, or the sentence imposed was unreasonable.
After fully examining the record, we agree with counsel that there is no basis in
law or fact for either of these arguments.
“A valid guilty plea must be knowingly, intelligently, and voluntarily
made.” United States v. Gay, 509 F.3d 1334, 1337 (10 th Cir. 2007) (citing United
States v. Gigot, 147 F.3d 1193, 1197 (10 th Cir. 1998); Fed. R. Crim. P. 11). The
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record reveals nothing that would cast doubt on the validity of McKee’s guilty
plea.
Furthermore, “[w]e review sentences for reasonableness under a deferential
abuse of discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10 th
Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 591 (2007)).
“Reasonableness review is comprised of a procedural component and a
substantive component.” Id. Procedural unreasonableness occurs “if the district
court incorrectly calculates or fails to calculate the Guideline sentence, treats the
Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly
erroneous facts, or inadequately explains the sentence.” Id. A sentence is
substantively unreasonable if its length “is unreasonable given the totality of the
circumstances in light of the 18 U.S.C. § 3553(a) factors.” Id.
We agree with Ms. Atteberry that there is no nonfrivolous ground in the
record on which to appeal the imposition of the sentence in this case following
McKee’s guilty plea. For the foregoing reasons, we GRANT counsel’s motion to
withdraw and DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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