United States v. Ferguson

FILED
United States Court of Appeals
Tenth Circuit

June 30, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 10-5034
ANTONIO RAFAEL FERGUSON, (D.C. No. 4:09-CR-00128-GKF-1)
(N. D. Okla.)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, 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, submitted without oral argument.

Antonio Rafael Ferguson pled guilty to a single count of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)

*
This order and judgment is not binding precedent, except under the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.
and 924(a)(2), and was sentenced to thirty-seven months’ imprisonment. On

appeal, Ferguson’s counsel has filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Ferguson was

provided with copies of these pleadings and was advised that he could file a pro

se brief. He has not, however, filed a pro se brief. Nor has the government filed

a response. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we grant

counsel’s motion to withdraw and dismiss the appeal.

On July 18, 2009, Ferguson was stopped by a Tulsa County Sheriff’s

deputy for traffic violations. Because Ferguson lacked a driver’s license or

insurance, he was placed under arrest. During the ensuing pat-down, the deputy

determined that Ferguson, a convicted felon, was in possession of a loaded pistol.

On September 9, 2009, a federal grand jury indicted Ferguson on one count

of being a felon in possession of a firearm and ammunition, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). Ferguson pled guilty to that charge on

October 30, 2009. The initial presentence investigation report (PSR) was

prepared by the probation office and submitted to the district court and parties on

December 14, 2009. A revised PSR was prepared and submitted to the district

court and parties on January 21, 2010. Neither Ferguson nor the government had

any objections to the revised PSR. On February 19, 2010, the district court

adopted the revised PSR’s sentencing calculations and sentenced Ferguson to

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thirty-seven months’ imprisonment, a term at the bottom of the advisory guideline

range. Judgment was entered in the case on February 25, 2010. Ferguson

subsequently filed a timely notice of appeal.

In Anders, the Supreme Court held that if appointed counsel “finds his case

to be wholly frivolous, after a conscientious examination of it, he should so

advise the court and request permission to withdraw.” 386 U.S. at 744. Counsel

must submit to the court a brief “referring to anything in the record that might

arguably support the appeal.” Id. When counsel submits an Anders brief

accompanied by a motion to withdraw, we “conduct a full examination of the

record to determine whether defendant’s claims are wholly frivolous.” United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If we concur in counsel’s

evaluation of the case, we may grant the request to withdraw and dismiss the

appeal. Anders, 386 U.S. at 744.

Ferguson’s counsel provided Ferguson with copies of both the Anders brief

and the motion to withdraw. Aplt. Br. at 15; Motion at 3. In accordance with

10th Cir. R. 46.4(B)(2), this court also provided notice to Ferguson of his

opportunity to file a pro se brief. As noted, Ferguson did not respond.

The only arguable basis for appeal identified by Ferguson’s counsel is that

the district court failed, during the course of the plea colloquy, to advise Ferguson

of the court’s obligation, in determining his sentence, to “calculate the applicable

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sentencing-guideline range and to consider that range, possible departures under

the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. §

3553(a) . . . .” Fed. R. Crim. P. 11(b)(1)(M). Ferguson’s counsel concedes,

however, that this issue was not raised below and is thus subject to review only

for plain error. United States v. Cano-Varela, 497 F.3d 1122, 1131 (10th Cir.

2007). “To show Rule 11 plain error, a defendant must show (1) error that (2) is

plain which (3) affected his substantial rights and (4) seriously affected the

fairness, integrity or public reputation of judicial proceedings.” Id. (internal

quotation marks and citation omitted). Ferguson’s counsel further concedes, and

we agree after reviewing the record on appeal, that Ferguson cannot establish the

district court’s error affected his substantial rights because “the Petition to Enter

Plea of Guilty furnished the requisite information” regarding sentencing, and

because “Ferguson did not move to withdraw his guilty plea” at any time during

the district court proceedings. Aplt. Br. at 5. Thus, we conclude the Rule 11

error identified by Ferguson’s counsel is frivolous.

As for the procedural and substantive reasonableness of the sentence

imposed by the district court, Ferguson’s counsel concedes he “has not identified

any basis for arguing that the Sentencing Guideline calculations were erroneous,

or that the sentence at the minimum of the Guideline range was unreasonable.”

Id. And, after conducting our own independent examination of the record on

appeal, we agree. As noted, the district court adopted, without objection, the

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Sentencing Guideline calculations outlined in the revised PSR. Our review of the

revised PSR and the sentencing hearing transcript reveals nothing procedurally

irregular about those calculations. Further, because the sentence imposed by the

district court fell at the bottom of the advisory guideline range, we must presume

it to be substantively reasonable, United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006), and nothing in the record on appeal persuades us to abandon this

presumption. In addition, Ferguson’s counsel asked the court at sentencing to

impose a sentence at the bottom of the range. For the court to have sentenced

Ferguson to a lesser sentence would have required the court to vary sua sponte

from the advisory guideline range.

III

Upon a full examination of the record as required by Anders, we find no

nonfrivolous basis for Ferguson to challenge his conviction or sentence.

Accordingly, we GRANT counsel’s motion to withdraw, and DISMISS the

appeal.

Entered for the Court

Mary Beck Briscoe
Chief Judge