465 F. App'x 761
10th Cir.2012Background
- Ewing pled guilty to forcibly assaulting a federal employee under 18 U.S.C. § 111(a)(1).
- District court counted eight criminal history points from four prior convictions, including 1989 armed robbery (1), 1992 conviction (3), 2002 marijuana possession (2), and the present offense while serving the 1992 sentence (2).
- Criminal history category was IV; with a total offense level of 11, guideline range was 18–24 months.
- Ewing was sentenced to 24 months in prison.
- Counsel filed an Anders brief and motion to withdraw; Ewing received copies and did not respond; appellate court granted withdrawal and dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counting the 1989 noncountable conviction was error | Ewing argues the 1989 conviction is too old to count. | Government argues any error was harmless and would not change the range. | Harmless error; issue lacking merit. |
| Whether double counting occurred with the 1992 conviction | Rojas-like concern that same conduct inflated points. | No double counting; §4A1.1(d) based on separate conduct than §4A1.2(a). | No merit; no improper double counting. |
Key Cases Cited
- United States v. Jeppeson, 333 F.3d 1180 (10th Cir. 2003) (harmless error if guideline range unchanged)
- United States v. Calderon, 428 F.3d 928 (10th Cir. 2005) (Anders procedure discussion)
- United States v. Rojas, 531 F.3d 1203 (10th Cir. 2008) (double-counting framework)
- United States v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000) (definition of double counting)