United States v. Hursh , 65 F. App'x 198 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 14 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-5141
v. (D.C. No. 00-CR-37-K)
(N. Dist. Okla.)
VICTOR WILLARD HURSH,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY and O’BRIEN, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Victor Willard Hursh appeals his sentence for possession of
methamphetamine with intent to distribute and possession of ammunition after
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
former conviction of a felony. Mr. Hursh pled guilty to both charges and was
sentenced to a term of forty-six months. Mr. Hursh’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and moves for leave to
withdraw as counsel. For the reasons set out below, we grant counsel’s motion to
withdraw and dismiss the appeal.
Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may advise the court and request permission to
withdraw. Counsel must also submit to both the court and his client a brief
referring to anything in the record arguably supportive of the appeal. The client
may then raise any point he chooses, and the court thereafter undertakes a
complete examination of all proceedings and decides whether the appeal is in fact
frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
the appeal. See id. at 744. Counsel provided Mr. Hursh with a copy of his
appellate brief. Mr. Hursh in turn filed pro se an opposition to that brief as well
as a later reply to the government’s brief.
Mr. Hursh raises several arguments and his counsel raises a few additional
points. We consider each in turn. First, in his December 2001 opposition to the
Anders Brief, Mr. Hursh argues that the court improperly used 24 year-old
convictions to enhance his sentence. As the government details in its brief, this is
simply without basis in fact. There was no enhancement of Mr. Hursh’s sentence
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based on the 1976 convictions. See Appx. to Anders Br. at 34. To the extent that
Mr. Hursh may simply have meant (as it appears his counsel has construed his
argument) that the 24 year-old convictions should not have been relied upon in
the conviction for possession of ammunition by a felon, we find his argument
unpersuasive. More importantly, the argument constitutes a challenge to the
sufficiency of evidence to support the conviction on the ammunition charge to
which Mr. Hursh pled guilty. Such a challenge is not allowed. See United States
v. Broce, 488 U.S. 563, 569-70 (1989).
Mr. Hursh also contends there was an unlawful upward departure in his
case. We disagree. See Appx. to Anders Br. at 31-34, 41. Rather, the court
imposed a sentence at the high end of the guidelines.
Next Mr. Hursh argues that the district court should not have applied a two
point firearm enhancement under U.S.S.G. § 2D1.1(b)(1). We agree with the
points made by Mr. Hursh’s counsel and the government on this matter. Under
Tenth Circuit law it is clear the defendant bears the ultimate burden of proving
that although he possessed the firearm, it was “clearly improbable” the firearm
was connected with the drug offense. See United States v. Smith, 131 F.3d 1392,
1400 (10th Cir. 1997). Mr. Hursh’s counsel acknowledges that two cases from
other circuits have previously found situations in which the evidence was
insufficient to support a two-point enhancement. See United States v. Peters, 15
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F.3d 540 (6th Cir. 1994); United States v. Khang, 904 F.2d 1219 (8th Cir. 1990).
However, Peters is distinguishable because the court there affirmed findings that
were not clearly erroneous. Likewise, Mr. Hursh’s counsel is correct that in the
Eighth Circuit the burden of showing the connection between the weapon and the
drug offense to be “clearly improbable” does not shift to the defendant as it does
in the Tenth Circuit. The Eighth Circuit is alone in this regard. See United States
v. Hall, 46 F.3d 62, 63 (11th Cir. 1995) (noting Eighth Circuit alone in placing
burden entirely on government). Our circuit’s position is clear, and Mr. Hursh
simply failed to carry his burden of proof on this issue.
In his February 2003 reply to the government’s brief, Mr. Hursh repeats his
legal argument on the impropriety of the firearm enhancement. He also contends
he did in fact provide proof that the guns’ connection to the drug offense was
“clearly improbable,” but he does not indicate what that proof was. Our review of
the record persuades us that although Mr. Hursh did present some evidence on
this point, the district court did not err in concluding he failed to carry his burden
of proof. To the extent Mr. Hursh may be alleging ineffective assistance of
counsel on this point, that is not an appropriate issue to raise on direct appeal and
we do not consider it. See United States v. Galloway, 56 F.3d 1239, 1242 (10th
Cir. 1995).
Mr. Hursh raises an unintelligible argument relating to the authority of the
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sentencing commission. To the extent we can comprehend this argument, we find
it lacks merit. To the extent Mr. Hursh alleges ineffective assistance of counsel
for failing to raise this argument, we again note that direct appeal is not the
proper forum for such an argument. See id.Mr. Hursh’s counsel raises and dismisses additional potential issues related
to Apprendi v. New Jersey, 530 U.S. 466 (2000), and downward departure.
Because the sentence in this case did not exceed the statutory maximum, there can
be no Apprendi violation. United States v. Sullivan, 255 F.3d 1256, 1265 (10th
Cir. 2001). In addition, it is apparent that the sentencing court was aware of its
ability to depart from the guidelines but declined to do so. We lack jurisdiction to
review that decision. See United States v. Fagan, 162 F.3d 1280, 1282 (10th Cir.
1998).
After careful review of the entire proceedings, we agree with counsel that
no non-frivolous grounds for appeal appear on this record. We see nothing to
indicate any error in the district court’s sentencing decision. Accordingly, we
GRANT counsel’s request to withdraw and we DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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