United States v. Myers ( 2023 )

Appellate Case: 22-3113 Document: 010110829126 Date Filed: 03/20/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 20, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3113
(D.C. No. 6:21-CR-10050-EFM-1)
TRAVIS JAMES MYERS, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
_________________________________
Travis James Myers pleaded guilty to being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). The district court sentenced Mr. Myers to 120 months in
prison. Myers appealed. Mr. Myers’s appointed counsel, an assistant federal public
defender, filed an Anders brief advising the court that she has found no nonfrivolous
bases for appeal and seeking leave to withdraw. See Anders v. California, 386 U.S.
738 (1967). We grant counsel’s motion to withdraw and dismiss the appeal.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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I. Background
On June 22, 2021, someone left a pipe bomb on a car in Wichita, Kansas. The
bomb exploded, causing minor property damage. Subsequent investigation revealed
that the pipe bomb was a destructive device as defined by 26 U.S.C. § 5845(f).
Video surveillance captured images of someone walking toward the car then
running away five minutes later as the bomb exploded. The owner of the car
identified the person as Mr. Myers. Though Mr. Myers later admitted he had been
there at the time, he never admitted to anything relating to the pipe bomb.
Investigators obtained a search warrant for Mr. Myers’s home, and they
discovered two loaded pistols and suspected pipe-bomb ingredients. Several years
earlier, Mr. Myers had been convicted of a felony and was disqualified from
possessing a firearm. The government charged him with a single count of possessing
a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1).
Mr. Myers pleaded guilty to knowingly possessing both guns and entered
a plea agreement in which the parties agreed to jointly request a sentence of
120 months—the statutory maximum sentence under the then-applicable version of
18 U.S.C. § 924(a)(2)—followed by three years of supervisory release. At the same
time, the parties also agreed to request a sentence consistent with the Sentencing
Guidelines. Mr. Myers also agreed to waive his right to appeal, but reserved the right
to challenge any sentence above the Guideline range.
During Mr. Myers’s change-of-plea hearing, the district court reviewed the
plea agreement with Mr. Myers, including the agreement to jointly request a
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120-month sentence. Mr. Myers confirmed that agreement and declined the district
court’s invitation to take a moment to discuss it further with his attorney. The
district court further explained to Mr. Myers the waiver of appellate rights, which
Mr. Myers said he understood. The district court then accepted Mr. Myers’s guilty
plea.
A probation officer prepared a presentence investigation report that
recommended a base offense level of 20 under § 2K2.1(a)(4)(B) of the Sentencing
Guidelines. See U.S. Sent’g Guidelines Manual § 2K2.1(a)(4)(B) (U.S. Sent’g
Comm’n 2021) (USSG). In addition, the officer recommended the following
increases in the offense level based on two specific offense characteristics:
• a two-level increase under § 2K2.1(b)(1)(A) because the offense involved
three firearms (including the pipe bomb, which federal law defines as a
firearm, see 26 U.S.C. § 5845(a)(8)); and
• a two-level increase under § 2K2.1(b)(3)(B) because the offense involved a
destructive device as defined by 26 U.S.C. § 5845(f).
The officer recommended reducing the offense level by three levels for acceptance of
responsibility, yielding a total offense level of 21. Combined with Mr. Myers’s
category IV criminal history, the offense level resulted in an advisory guideline range
of 57 to 71 months.
The probation officer further noted, however, that Mr. Myers’s actual criminal
history was under-represented. In a prior federal prosecution involving drugs and
guns, Mr. Myers faced a guideline range of 210-262 months but instead received only
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five years of probation. In addition, in a prior state prosecution, Mr. Myers received
probation rather than a custodial sentence.
Neither party objected to any aspect of the presentence report, nor did they file
any briefs before the sentencing hearing.
At the sentencing hearing, the district court stated it agreed that Mr. Myers’s
criminal history score did not fully reflect his criminal history, and that the offense of
conviction understated the severity of the offense. The government argued that a
120-month sentence was warranted based on Mr. Myers’s actual criminal history and
the pipe-bomb incident that led to his arrest. Mr. Myers’s defense counsel simply
requested the district court to follow the plea agreement.
The district court did exactly that, concluding that while the guideline range
had been accurately calculated, it understated the severity of the offense and
Mr. Myers’s criminal history. The district court acknowledged that the parties’ joint
recommendation of a substantial upward variance was unusual, but concluded the
agreed-upon sentence of 120 months reflected the gravity of the matter. The district
court also found the sentence—which included three years of supervised release and
several special conditions—complied with the sentencing factors set forth in
18 U.S.C. § 3553(a).
Mr. Myers timely filed an appeal to challenge his sentence. He does not,
however, seek to challenge the validity of his plea.
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II. Discussion
A. Anders Review
Under Anders v. California, 386 U.S. 738 (1967), appellate counsel may
“request permission to withdraw where counsel conscientiously examines a case and
determines that any appeal would be wholly frivolous.” United States v. Calderon,
428 F.3d 928, 930 (10th Cir. 2005). We have described the process accompanying an
Anders brief as follows:
Under Anders, counsel must submit a brief to the client and the
appellate court indicating any potential appealable issues based on the
record. The client may then choose to submit arguments to the court.
The Court must then conduct a full examination of the record to
determine whether defendant’s claims are wholly frivolous. If the court
concludes after such an examination that the appeal is frivolous, it may
grant counsel’s motion to withdraw and may dismiss the appeal.
Id. (citations omitted).
Counsel in this case filed an Anders brief asserting Mr. Myers had no
nonfrivolous issues for appeal. The brief explains why there is no basis to challenge
the above-guideline sentence as procedurally or substantively unreasonable, and
further explains that Mr. Myers waived the right to challenge any other component of
his sentence. Mr. Myers did not file a response to the Anders brief as he had been
invited to do. After careful review of the record and the Anders brief, we agree
Mr. Myers has no nonfrivolous ground for appeal.
B. The Sentence Was Not Procedurally Unreasonable
Because Mr. Myers did not object to any aspect of his sentence before the
district court, any appeal challenging the procedural reasonableness of his sentence is
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subject to plain-error review. See United States v. Gantt, 679 F.3d 1240, 1246
(10th Cir. 2012). That standard requires Mr. Myers to satisfy four elements: (1) the
district court committed an error; (2) the error was plain (meaning it was obvious
under current well-settled law); (3) it affected Mr. Myers’s substantial rights; and
(4) it “seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. (brackets and internal quotation marks omitted). Mr. Myers cannot
meet this standard because the district court committed no error.
First, Mr. Myers’s counsel notes that even though the district court did not
impose a guideline sentence, a plainly erroneous guideline calculation might merit
reversal because the guidelines are the sentencing court’s “starting point and initial
benchmark.” Molina-Martinez v. United States, 578 U.S. 189, 198 (2016) (ellipsis
and internal quotations omitted). But Mr. Myers’s counsel can identify no error in
the guideline calculation, nor can we. In addition, the facts on which the guideline
calculation was based were all admitted by Mr. Myers in the plea agreement, and he
did not object to the recitation of facts in the presentence report. See United States v.
McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022) (“[T]he district court may rely on
facts stated in the presentence report unless the defendant has objected to them.”
(internal quotations omitted)).
Second, Mr. Myers’s counsel raises a potential argument concerning the two
specific-offense characteristics used to increase the total offense level. Those
increases, however, were consistent with our case law and the Sentencing Guidelines.
They were premised on the notion that the offense “involved” a destructive device
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(i.e., the pipe bomb) under USSG § 2K2.1(b). The pipe bomb was “involved” within
the meaning of the Sentencing Guidelines if it was part of the same course of conduct
as the underlying offense. See United States v. Windle, 74 F.3d 997, 1000 (10th Cir.
1996). And in Windle we held that a “behavior pattern of unlawfully possessing
[multiple] firearms over a relatively short period of time meets the same course of
conduct requirement.” Id. at 1001. Because federal law defines a pipe bomb as a
firearm, see 26 U.S.C. § 5845(a)(8), the facts of this case fall comfortably within the
Windle standard, and we therefore agree there is no merit to this potential argument.
Third, Mr. Myers’s counsel notes the district court used the pipe-bomb
possession twice by relying on it for two separate specific-offense characteristics.
But, as counsel further notes, we have held that double-counting is only prohibited
“when the same conduct on the part of the defendant is used to support separate
increases under separate sentence enhancement provisions which necessarily overlap,
are indistinct, and serve identical purposes.” United States v. Terrell, 608 F.3d 679,
683 (10th Cir. 2010) (brackets and internal quotation marks omitted). In Terrell, we
held that it is not double-counting to rely on the same conduct to apply a firearms
quantity enhancement while also imposing a manner-of-use sentence. Id. at 684(“[A] sentence for using, possessing, brandishing, or discharging a firearm . . . does
not punish the additional and separate wrong of utilizing multiple weapons as part of
the underlying . . . offenses.”). Here, one of the enhancements concerned the number
of firearms Mr. Myers possessed, while the other involved the type of firearms he
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possessed. The district court’s use of the pipe bomb for these two distinct purposes
was not erroneous.
We have reviewed the record and find no other nonfrivolous grounds for
asserting procedural error with respect to Mr. Myers’s sentence.
C. The Sentence Was Not Substantively Unreasonable
Mr. Myers’s counsel also states that it would be frivolous to challenge the
substantive reasonableness of the 120-month sentence. We agree.
We will reverse a sentence as substantively unreasonable “only if the sentence
imposed was arbitrary, capricious, whimsical, or manifestly unreasonable.”
United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (internal quotation
marks omitted). We find nothing in the record to support such an argument.
Although Mr. Myers’s 120-month sentence was well above the sentencing guideline
range, he agreed to that sentence and confirmed his agreement to the district court
during the change-of-plea hearing. The district court also noted the 120-month
sentence was justified by Mr. Myers’s criminal history, which was under-represented
in the presentence report. The district court further found that the sentence complied
with the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (in reviewing for substantive
reasonableness, we examine “whether the length of the sentence is reasonable given
all the circumstances of the case in light of the factors set forth in 18 U.S.C.
§ 3553(a)” (internal quotation marks omitted)). In short, we agree with Mr. Myers’s
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counsel that in light of this record, a challenge to the substantive reasonableness of
Mr. Myers’s sentence would be frivolous.
D. Mr. Myers’s Appellate Waiver
In the plea agreement, Mr. Myers agreed to a waiver of appeal and collateral
attack regarding “any matter in connection with this prosecution, the defendant’s
conviction, or the components of the sentence to be imposed herein including the
length and conditions of supervised release.” R. vol. I at 30. He reserved the right to
challenge only an above-guidelines sentence, and to make claims of ineffective
assistance of counsel or prosecutorial misconduct. 1
An appellate waiver is enforceable if the appeal falls within the scope of the
waiver, the defendant knowingly and voluntarily waived his right to appeal, and
enforcing the waiver would not result in a miscarriage of justice. United States v.
Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). We agree with Mr. Myers’s counsel
that under Hahn there is no basis to argue that the appeal waiver is unenforceable.
1
We find nothing in the record to support a claim of prosecutorial misconduct.
Moreover, claims of ineffective assistance of counsel “should be brought in collateral
proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240
(10th Cir. 1995).
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III. Conclusion
We have found no nonfrivolous grounds for challenging Mr. Myers’s sentence
or his appeal waiver, and we therefore dismiss his appeal and grant counsel’s motion
to withdraw.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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