United States v. Henry , 705 F. App'x 764 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7028
(D.C. No. 6:16-CR-00071-JHP-1)
RICHARD DALE HENRY, (E.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Richard Henry appeals following his conviction for being a felon in possession
of a firearm. His counsel moves to withdraw in a brief filed pursuant to Anders v.
California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291, we
grant counsel’s motion to withdraw and dismiss the appeal.
I
A jury found Henry guilty of being a felon in possession of a firearm. His
Presentence Investigation Report (“PSR”) recommended a base offense level of 22
*
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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
because Henry’s offense involved a semiautomatic weapon that could be used with a
high-capacity magazine and Henry had previously been convicted of second-degree
murder, a crime of violence. The PSR also recommended a criminal history category
of III, based on the murder conviction and a possession of marijuana offense. Henry
also had prior convictions for first-degree murder, burglary, and theft, which were
too old to be counted in his criminal history score.
Henry’s trial counsel objected to the 1994 second-degree murder conviction
being characterized as a crime of violence, but the district court overruled the
objection. The government requested an upward variance or departure, arguing that
Henry’s older convictions demonstrated that he posed a danger to the community and
that their exclusion from the criminal history score meant that the score did not
adequately reflect this danger. Although the district court declined to vary, it
departed upward from a criminal history category of III to a criminal history category
of V, resulting in an advisory range of 77 to 96 months. The court sentenced Henry
to 96 months’ imprisonment. Henry timely appealed.
II
An attorney who determines that an appeal would be wholly frivolous after
conscientiously examining the case may advise the court of this conclusion and
request permission to withdraw. Anders, 386 U.S. at 744. The attorney must file a
brief noting any potentially appealable issues and provide the brief to the defendant,
who may then submit a pro se brief. Id. If the court determines that any appeal
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would be frivolous upon careful examination of the record, it may grant the request
to withdraw and dismiss the appeal. Id.
Defense counsel’s Anders brief notes three potentially appealable issues:
(1) whether the evidence presented at trial was sufficient to support Henry’s
conviction; (2) whether the sentence was reasonable; and (3) whether Kansas second-
degree murder qualifies as a crime of violence. We conclude that argument on any of
these issues would be frivolous.
To convict Henry of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1), the government had to prove that he is a convicted felon who
knowingly possessed a firearm, and that the firearm moved in interstate commerce.
United States v. Morales, 758 F.3d 1232, 1235 (10th Cir. 2014). Henry stipulated
that he was a convicted felon and that the gun at issue had moved in interstate
commerce. Additionally, a pawn shop owner testified that Henry sold him a firearm.
This evidence was sufficient to support the conviction.
We also conclude that Henry’s sentence was both procedurally and
substantively reasonable. The district court permissibly increased Henry’s criminal
history category by two levels based on an underrepresented criminal history. See
United States v. Pettigrew, 468 F.3d 626, 641 (10th Cir. 2006) (affirming upward
departure under similar circumstances); U.S.S.G. § 4A1.3(a)(1) (allowing for upward
departure for substantially underrepresented criminal history). Henry’s sentence of
96 months was also a valid exercise of the district court’s discretion. See United
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States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (noting deferential
substantive reasonableness review).
Finally, Henry’s Kansas second-degree murder conviction clearly qualifies as
a crime of violence. Under the enumerated offense clause of U.S.S.G. § 4B1.2,
murder is a crime of violence. Id. And Kansas second-degree murder corresponds
with the generic definition of murder. See United States v. Castro-Gomez, 792 F.3d
1216, 1217 (10th Cir. 2015) (generic murder requires “at least reckless and depraved
indifference to serious dangers posed to human life”); Kan. Stat. § 21-3402 (1993).
Henry also filed a pro se brief advancing several arguments. He challenges the
factual bases of his prior convictions; contends that a prior charge noted in the PSR,
but immaterial to the sentence calculation lacked a factual basis; argues that he had
not endangered society after being released from prison most recently; and claims
that he immediately sold the firearm at issue in this case after inheriting it. None of
these arguments, however, constitute a ground for reversal. In the course of federal
sentencing proceedings, a defendant may not collaterally attack prior convictions
unless they were obtained in violation of the right to counsel. Custis v. United
States, 511 U.S. 485 (1994). The district court did not clearly err in concluding that
Henry was a danger to the community. And Henry’s arguments about the reasons for
his possession of the firearm do not undermine the conclusion that he knowingly
possessed it.
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III
Because we are not presented with any meritorious grounds for appeal, we
GRANT counsel’s request to withdraw and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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