FILED
United States Court of Appeals
Tenth Circuit
May 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-7085
v. (E.D. Oklahoma)
WILLIAM PATRICK POTTS, a/k/a (D.C. No. 6:08-CR-00080-RAW-1)
Pat Potts,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and BRORBY, Circuit Judges.
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.
Following a jury trial, defendant and appellant William Patrick Potts was
convicted of one count of being a felon in possession of a firearm, in violation of
*
This order and judgment is not binding precedent except under the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.
18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e). He was sentenced to 188 months’
imprisonment, followed by five years of supervised release. Mr. Potts filed a
timely notice of appeal, and his appointed counsel, Rex Earl Starr, filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), moving to withdraw as
counsel. For the reasons set forth below, we agree with Mr. Starr that the record
in this case provides no nonfrivolous basis for an appeal, and we therefore grant
his motion to withdraw and dismiss this appeal.
BACKGROUND
After several encounters with law enforcement personnel and a confidential
informant, Mr. Potts was ultimately arrested by ATF Special Agent Ashley
Stephens on November 14, 2008, in Cherokee County, Oklahoma. He was
charged with being a felon in possession, after selling a .22 Win Mag rifle to the
confidential informant. When agents executed a search warrant at his house, they
also discovered a loaded Remington, Model 200, .243 caliber rifle and some .22
caliber ammunition and 12 gauge shotgun ammunition.
Mr. Potts refused to enter into a plea agreement, and insisted on going to
trial. The jury trial took place on March 12 and 13, 2009, at the conclusion of
which the jury found Mr. Potts guilty. Thereafter, the United States Probation
Office prepared a presentence agreement (“PSR”) in anticipation of sentencing
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under the advisory United States Sentencing Commission Guidelines Manual
(“USSG”).
The PSR determined that Mr. Potts “qualif[ies] as an armed career criminal
as he has at least three (3) prior convictions which are considered violent felony
offenses and were committed on occasions separate from one another per the
statutory language of 18 U.S.C. §§ 924(e)(2)(A) and (B).” PSR ¶ 21, R. Vol. 3 at
4. 1 As an Armed Career Criminal (“ACC”), Mr. Potts was assigned a total
offense level of 33, and he was assigned a criminal history category of IV. These
together yielded an advisory Guideline sentencing range of 188 to 235 months.
1
The PSR listed the following as the predicate convictions for armed career
criminal purposes:
1) Assault with Dangerous Weapon / District Court,
Cherokee County, Tahlequah, Oklahoma, case number
CRF-80-93, in which the defendant was sentenced on
August 21, 1980, to two years suspended.
2) Assault and Battery with a Dangerous Weapon / District
Court, Cherokee County, Tahlequah, Oklahoma, case
number CRF-81-153, in which the defendant was
sentenced on March 18, 1982, to five years custody with
four years to be suspended.
3) Murder Second Degree / District Court, Delaware
County, Jay, Oklahoma, case number CRF-87-94, in
which the defendant was sentenced on July 11, 1988, to
fifteen years custody with thirteen years to be
suspended.
PSR ¶ 21, R. Vol. 3 at 4.
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Pursuant to statute, because of Mr. Potts’ three previous violent felonies, the
statutory minimum applicable to Mr. Potts was fifteen years.
Neither party filed objections to the PSR. At sentencing, the district court
determined that the PSR had correctly determined Mr. Potts should be sentenced
as an ACC. Also at sentencing, Mr. Potts asked for leniency, in part because his
prior murder conviction was apparently eventually reversed, 2 and because it had
been a long time since his last felony. The government asked that Mr. Potts be
sentenced at the high end of the advisory range, while he urged the court to
sentence him at the low end of that range. The court ultimately sentenced
Mr. Potts to 188 months, the low end of the advisory range. In so sentencing him,
the court stated as follows:
[T]he government has asked for the high end of the range. Mr. Starr
[defense counsel] has asked for the low end of the range. The Court
is swayed by the fact that the Armed Career Criminal enhancements
are quite a long time ago. Mr. Potts is three months younger than
me, and the low end of the range will get him out of prison when he
is over 60 years-old and I think the low end of the range will be just
fine.
....
In formulating the sentence imposed, this Court has considered
the nature and circumstances of the offense, as well as the
characteristics and criminal history of the defendant. The Court has
further taken in to consideration the Sentencing Guideline
calculations contained within the Presentence Report, in addition to
any objections, clarifications, additions or deletions to those
2
The circumstances surrounding this reversal are very murky; significantly,
for the purpose of this appeal, no one argues that that fact should undermine the
conclusion that Mr. Potts is an armed career criminal and was properly sentenced
as such.
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guideline calculations identified in the addendum to the report or
announced in open Court today. While the Court recognizes that it is
not bound by the sentencing guideline calculations, the Court has
considered them and finds them to be advisory in nature.
The sentence prescribed by this Court reflects the seriousness
of the offense, promotes respect for the law and provides just
punishment for the offense. This sentence affords adequate
deterrence to criminal conduct, protects the public from further
crimes of this defendant and provides correctional treatment for the
defendant in the most effective manner. The Court has further
determined that this sentence is reasonable and sufficient, but no
greater than necessary to meet the objectives set forth in 18 [U.S.C.
§ ] 3553(a).
Tr. of Sentencing at 17, 20-21, R. Vol. 2 at 434, 437-38. Thus, the court imposed
its 188-month sentence.
DISCUSSION
In Anders, the Supreme Court held that if a defendant’s counsel “finds [the
defendant’s] case to be wholly frivolous, after a conscientious examination of it,
he should so advise the court and request permission to withdraw.” Anders, 386
U.S. at 744. Counsel must submit to both the court and his client a “brief
referring to anything in the record that might arguably support the appeal.” Id.
The defendant may then “raise any points that he chooses.” Id.
The reviewing court must examine all the proceedings to determine whether
the appeal is frivolous. Anders, 386 U.S. at 744. “If it so finds, it may grant
counsel’s request to withdraw and dismiss the appeal.” Id. “On the other hand, if
it finds any of the legal points arguable on their merits (and therefore not
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frivolous) [the reviewing court] must, prior to decision, afford the indigent
[defendant] the assistance of counsel to argue the appeal.” Id.
In this case, Mr. Potts has submitted a handwritten note, dated 4/26/10,
addressed to Betsy Shumaker, the Clerk of our court, in which he states the
following:
Dear Miss Shumaker,
I’m writing this to let you know I got [to] 6 grade in school.
Rex Starr is my lawyer I want a appeal not a Anders Brief??
Please give me a lawyer to look over my records my witness
against me was Keif Deen? He is saying now A.T.F. Stevens told
him to lie?
Please help me.
Pat Potts
The government has elected not to submit a brief. Accordingly, we base our
conclusions on counsel’s brief and our own careful review of the record.
Mr. Potts’ counsel suggests no potentially appealable issues. Rather, he
explains how vigorously he worked to encourage Mr. Potts not to appeal, as he
can see no nonfrivolous basis for an appeal. We agree with Mr. Starr, Mr. Potts’
counsel. We can find nothing, either during the trial or during the sentencing
proceedings, that raises any potential grounds for appeal. In particular, the
sentence imposed seems both substantively and procedurally reasonable.
Furthermore, we can find no evidence in the record supporting Mr. Potts’
handwritten plea and allegation that ATF Agent Stephens either himself lied or
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encouraged others to lie. Absent such evidence, we cannot pursue such a vague
and conclusory claim.
CONCLUSION
We agree with Mr. Potts’ counsel that no meritorious basis exists for
Mr. Potts’ appeal of either his conviction or his sentence. We therefore GRANT
his counsel’s motion to withdraw and DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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