United States v. Fulton , 431 F. App'x 732 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 27, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-1547
v.
(D.C. No. 1:10-CR-00082-CMA-1)
(D. Colo.)
JUVON THOMAS FULTON, a/k/a
“Shaft”,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
Juvon Thomas Fulton pleaded guilty and was convicted of two charges
arising from his involvement in a conspiracy to distribute 50 grams or more of
cocaine base. 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1) & 846. He faced a
mandatory minimum sentence of 20 years. Despite this mandatory minimum, the
government agreed to ask the district court for a sentence of 160 months because
*
After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
of his cooperation and pursuant to authority given to it by Congress under 18
U.S.C. § 3553(e) & U.S.S.G. § 5K1.1. The district court ultimately granted the
government’s motion and sentenced Mr. Fulton to 160 months in prison followed
by a term of supervised release. Now the case is before us and Mr. Fulton’s
attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
advising us that he discerns no colorable basis for an appeal and seeking leave to
withdraw.
Anders authorizes a defendant’s lawyer to seek permission to withdraw
from an appeal if, “after a conscientious examination,” the lawyer finds the
appeal “wholly frivolous.” Id. at 744. Invoking Anders requires the lawyer to
“submit a brief to the client and the appellate court indicating any potential
appealable issues based on the record.” United States v. Calderon, 428 F.3d 928,
930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). The client may then
submit his own arguments for the court’s consideration. Calderon, 428 F.3d at
930. And we must then “conduct a full examination of the record to determine
whether [the] defendant’s claims are wholly frivolous.” Id. If they are, we may
grant counsel’s motion to withdraw and dismiss the appeal. Id.In his Anders brief, Mr. Fulton’s counsel identifies three potential points of
appeal in this case but represents that all would be pointless, lacking any merit.
Despite being afforded opportunity to do so, Mr. Fulton has not submitted any
materials disputing this analysis or identifying any other additional arguments he
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would like to pursue. Similarly, the government has indicated its intent not to
respond to the Anders brief. After our own independent review, we agree with
Mr. Fulton’s counsel that any appeal in this case would be fruitless.
First, the Anders brief points out that Mr. Fulton has no grounds on which
to appeal his conviction. This is because he entered an unconditional plea of
guilty, and thereby waived all non-jurisdictional defenses to the conviction. See
United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003).
Second, though the district court imposed a below-mandatory-minimum
sentence, the Anders brief raises the possibility that Mr. Fulton might challenge
the procedural reasonableness of his sentence by alleging the district court failed
to consider adequately the possibility of an even lower sentence in light of the
factors outlined in 18 U.S.C. § 3553(a). But, as counsel notes, where a district
court imposes a below-mandatory-minimum sentence under 18 U.S.C. § 3553(e)
and U.S.S.G. § 5K.1.1, our precedent precludes it from varying downward further
using the § 3553(a) factors to do so. See United States v. A.B., 529 F.3d 1275,
1284-85 (10th Cir. 2008), cert. denied, 129 S. Ct. 440 (2008). Even were our
precedent otherwise, counsel notes that Mr. Fulton did not object to the district
court’s failure to address adequately the possibility of a further reduction using
the § 3553(a) factors — and that Mr. Fulton could not show the district court
plainly erred by failing to do so. In fact, as counsel acknowledges, the district
court did carefully consider the § 3553(a) factors on the record before concluding
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that, “[e]ven if I did have the authority to grant a variance” based on the
§ 3553(a) factors one was not warranted in light of the facts and circumstances of
Mr. Fulton’s case. R.O.A. Vol. 3 at 57.
Third, the Anders brief suggests Mr. Fulton might seek to challenge the
substantive reasonableness of his sentence. But, as counsel notes, that argument,
too, is foreclosed by A.B., which limits the authority of the district court to vary
any lower than it did from the guidelines — and by the sound analysis the district
court offered in the alternative for declining to grant any further variance in light
of the § 3553(a) factors.
Counsel’s motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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