United States v. Soukchanh , 206 F. App'x 794 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 06-8018
v.
(D.C. No. 05-CR-240-CAB)
(D. Wyo.)
OUDOM SOUKCHANH,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Oudom Soukchanh appeals his convictions for Possession with Intent to
Distribute M ethamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
Possession with Intent to Distribute M DM A/Ecstasy in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A), Possession of a Firearm in Furtherance of a Drug
Trafficking Offense in violation of 18 U.S.C. § 924(c)(1)(A), and Aiding and
Abetting his codefendant in the commission of each of the above listed counts, in
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
violation of 18 U.S.C. § 2. Soukchanh’s counsel moves for leave to withdraw in a
brief filed pursuant to Anders v. California, 386 U.S. 738 (1967). W e AFFIR M
Soukchanh’s convictions, DISM ISS the appeal, and GRANT counsel’s motion to
w ithdraw .
On August 17, 2005, W yoming State Trooper Benjamin Peech stopped
Soukchanh and his passenger Latdavanh Sombath near Cheyenne, W yoming as
they were driving east on Interstate 80. Peech initiated the stop because he
observed Soukchanh nearly hit another vehicle as he was reading a road atlas, but
became suspicious when Soukchanh presented a Georgia driver’s license and a
document indicating that the car w as registered to a Sonephet Vorchak in Kent,
W ashington. After Soukchanh and Sombath provided inconsistent accounts of
their travel plans, Peech asked if they would consent to a search of the vehicle.
Both men consented to the search.
During a search of the vehicle’s trunk, Peech found several heat-sealed
bags hidden in the lining of a modified cooler. At that point he contacted the
Division of Criminal Investigation (“DCI”) to assist him. Peech continued his
inspection, discovering a loaded “Tec-9” pistol under the passenger seat of the
car, w hile waiting for D CI Special A gent Larry Propps to arrive on the scene.
W hen Propps arrived, he logged the gun and the bags into evidence and sent them
to the W yoming Crime Lab for testing. Soukchanh later stipulated that the bags
contained 987.3 grams of methamphetamine and 1191.2 grams of Ecstasy. After
-2-
being informed of his rights under M iranda v. Arizona, 384 U.S. 436 (1966),
Soukchanh admitted to Propps that he was delivering the drugs to a destination in
Oklahoma and was aware of the firearm in the car.
At trial, Peech, Propps, and Sombath – who pled guilty to the same charges
Soukchanh was convicted of – testified against Soukchanh. A jury found him
guilty and he was sentenced to 121 months’ imprisonment, at the bottom of his
Guidelines range. At the sentencing hearing, Soukchanh filed a motion for
substitution of counsel, which was denied. He now appeals his convictions.
If counsel conscientiously examines a case and determines that any appeal
would be wholly frivolous, counsel may so advise the court and request
permission to withdraw. Anders, 386 U.S. at 744. 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, upon completely examining the record, the
court determines that the appeal is in fact frivolous, it may grant the request to
withdraw and dismiss the appeal. Id. In the present case, counsel provided
Soukchanh with a copy of his appellate brief and Soukchanh has not filed a pro se
brief raising any argument.
Counsel’s Anders brief raises two potentially appealable issues: ineffective
assistance of counsel and insufficiency of the evidence. In this Circuit, except in
rare circumstances, ineffective assistance of counsel claims must be presented in
-3-
collateral proceedings. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995) (en banc). On direct appeal ineffective assistance of counsel claims are
“presumptively dismissible, and virtually all [such claims] w ill be dismissed.” Id.This rule allows a district court to develop the factual record necessary for
effective review. See M assaro v. United States, 538 U.S. 500, 505-06 (2003).
The present claim does not fall into the narrow category of cases that require no
further development and are therefore suitable for review on direct appeal. Cf.
United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993) (deciding an ineffective
assistance of counsel claim on direct appeal where defense counsel averred to
mistakenly omitting a jury instruction on a lesser included offense). If Soukchanh
wishes to pursue this claim further he must do so in a collateral proceeding under
28 U.S.C. § 2255.
W e review a challenge to the sufficiency of the evidence to support a
conviction de novo, but view all evidence in the light most favorable to the
government. United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004).
W e must uphold a jury verdict unless no jury could have rationally found the
defendant guilty beyond a reasonable doubt. Id. Peech stated under oath that he
found drugs and a gun in a car driven by Soukchanh. Propps testified that
Soukchanh admitted he knew the drugs and the gun were there. Sombath
confirmed that Soukchanh knew the gun was in the car. That evidence, which
went uncontroverted, is sufficient to support the jury’s verdict.
-4-
For the reasons stated above we AFFIRM Soukchanh’s convictions,
DISM ISS the appeal, and GR A NT counsel’s motion to withdraw.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-5-