UNITED STATES of America, Plaintiff-Appellee, v. Alan Ray CAMPBELL, Defendant-Appellant.
No. 04-5127.
United States Court of Appeals, Tenth Circuit.
July 12, 2005.
LUCERO, Circuit Judge.
Alan Ray Campbell pled guilty to two charges of bank robbery in violation of
If counsel conscientiously examines a case and determines that any appeal would be wholly frivolous, Anders authorizes counsel to so advise the court and request permission to withdraw. Counsel must submit a brief to both the appellate court and the client pointing to anything in the record that would potentially present an appealable issue. The client may then choose to offer any argument to the court. If the court, upon completely examining the record, determines that the appeal is in fact frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal. Id. at 744, 87 S.Ct. 1396. In the present case, counsel, acting pursuant to Anders, provided Campbell with a copy of
Counsel‘s Anders brief identifies two potentially appealable issues. First, before the district court, Campbell contended that the facts supporting his enhancement for making a threat of death were not established by the plea. The transcript of the plea colloquy reveals the following exchange:
Defendant: Okay. On March the 5th, I went to a bank in Sand Springs and give the teller a note and took the money.
Court: What did the note say?
Defendant: Put unbundled 100s and 50s in an envelope, no dye pack, no alarm. I have a gun.
* * *
Court: All right. And you knew that that would be intimidating to the teller, didn‘t you?
Defendant: Oh, yes.
The district court concluded that, as a matter of law, the statement “I have a gun” constitutes a threat of death for purposes of a
The second potentially appealable issue would arise under United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Campbell argued below that failure to charge the “threat of death” enhancement in the indictment amounted to a violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because the Court in Booker “did not hold that facts supporting sentencing factors had to be included in the indictment,” United States v. Glover, No. 04-5150, — F.3d — (10th Cir.2005), we conclude that appeal of this issue would be frivolous.
Counsel does not identify in his Anders brief an appealable issue arising from Booker‘s remedial holding. Because Campbell declined to file a pro se brief, he does not argue that his sentence is invalid under Booker. Nevertheless, Campbell did raise a Blakely issue below with respect to the indictment. Upon our independent review of the record, we determine that an appeal based on Booker‘s remedial holding would be frivolous. Because the district court utilized the Guidelines in a mandatory fashion, it committed non-constitutional Booker error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.2005) (en banc).
The government contends that any non-constitutional Booker error in this case would be harmless. Given that the court imposed sentence in the middle of the Guideline range after hearing argument from both sides, we agree, and conclude that “the record demonstrates that the district court would impose the same sentence even under an advisory Guidelines system.” United States v. Lawrence, 405 F.3d 888, 908 (10th Cir.2005). Indeed, upon the government‘s recommendation that Campbell receive a sentence in the middle of the Guidelines range, as opposed to the top, the sentencing judge stated,
Because Mr. Campbell has no meritorious grounds for appeal, we GRANT counsel‘s request to withdraw and we DISMISS the appeal.
Evin C. Danielson, Scott Woodward, Asst. U.S. Attorney, Phil Pinnell, Office of the United States Attorney, Tulsa, OK, for Plaintiff-Appellee.
Barry L. Derryberry, Asst. FPD, Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant.
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.