F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 17 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-5108
v. (D.C. No. 02-CR-128-EA)
(N.D. Okla.)
RODNEY LOVETT WILKINS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **
Defendant-Appellant Rodney Lovett Wilkins appeals from his plea and
sentence for possession of a firearm after former conviction of a felony. Counsel
for Mr. Wilkins submitted a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), and moved for leave to withdraw as counsel. Mr. Wilkins responded
with a one-page statement regarding “appeal issues.” We have jurisdiction over
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the appeal under 28 U.S.C. § 1291 and jurisdiction to review the sentence under
18 U.S.C. § 3742. We dismiss the appeal and grant counsel’s request to
withdraw.
Mr. Wilkins was indicted for (1) possession of a firearm after a former
conviction of a misdemeanor crime of domestic violence, 18 U.S.C. § 922(g)(9),
and (2) possession of a firearm after a former conviction of a felony, 18 U.S.C. §
922(g)(1). I Aplt. App., R. Doc. 1. He pleaded guilty to both counts, and neither
he nor his counsel sought to withdraw the plea. At sentencing, the first count was
dismissed upon the government’s motion to dismiss due to a plain violation of
double jeopardy. On the second count, the presentence investigation report
(“PSR”) included an offense level of 23 and a criminal history category of VI,
resulting in a sentencing guideline range of 92-115 months. II Aplt. App. at 21.
No objection was made to the presentence report. Mr. Wilkins was sentenced to
115 months imprisonment, followed by three years of supervised release. He also
received a $2,500 fine and a special assessment of $100.
In his Anders brief, counsel for Mr. Wilkins states that he “has diligently
searched the record for any non-frivolous issues which are arguable on appeal,”
and having done so, finds there “are no appellate issues in this case.” Aplt. Br. at
4. In response, Mr. Wilkins argues that the district court erred by including a
prior “voidable sentence” in calculating his criminal history category. In
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accordance with Anders, we must proceed, “after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.” 386 U.S. at 744.
Mr. Wilkins was reported as having 13 criminal history points in the PSR,
which gave him a criminal history category of VI. II Aplt. App. at 16. One point
was included under U.S.S.G. § 4A1.1(c) because Mr. Wilkins pleaded guilty to an
“Assault and Battery–Domestic Abuse, After Former Conviction for Assault and
Battery–Domestic Abuse” in Osage County. Id. at 14, ¶ 36. He received
supervised probation for two years and his sentence was deferred until October
29, 2003. Another two points were included under U.S.S.G. § 4A1.1(d) because
the instant offense was committed while Mr. Wilkins was serving “a criminal
justice sentence” for the Osage County offense. Id. at 15, ¶ 39. Mr. Wilkins did
not object to the inclusion of these points at the time of sentencing. However, he
now argues, citing Stewart v. State, 989 P.2d 940, 944 (Okla. Crim. App. 1999),
that the sentence was “voidable” because he was not eligible for a deferred
sentence under Okla. Stat. tit. 22, § 991c, as he was “previously convicted of a
felony offense.” See id. § 991c(F). Mr. Wilkins therefore argues the district
court erred in including the offense in the calculation of his criminal history
category.
Because Mr. Wilkins “failed to object to the calculation of his criminal
history category below, this court reviews the district court’s sentencing
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determination for plain error.” United States v. Mendez-Lopez, 338 F.3d 1153,
1159 (10th Cir. 2003). Under the plain error standard, we review the district
court’s sentencing “for particularly egregious or obvious and substantial legal
error, which our failure to consider would result in a miscarriage of justice.”
United States v. Lowder, 5 F.3d 467, 472 (10th Cir. 1993) (internal quotation
marks and citations omitted). Even if Mr. Wilkins establishes an error that affects
his substantive rights, reversal is nevertheless inappropriate unless the error was
also “clear or obvious.” United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir.
2000). Thus, even assuming the prior sentence was voidable, as Mr. Wilkins
argues, this error was not clear or obvious to the district court upon sentencing.
In addition, a defendant may not collaterally attack a prior state court
conviction under the guidelines unless “otherwise recognized in law.” U.S.S.G. §
4A1.2, comment n.6. This court has allowed a collateral attack on a prior
conviction only in cases of a “complete violation of the right to counsel,” United
States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994), and in this case it is clear Mr.
Wilkins was represented by counsel in the prior state court conviction. II Aplt.
App. at 14, ¶ 36. After a full examination of the proceedings, we conclude Mr.
Wilkins’s appeal is frivolous.
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Accordingly, we GRANT counsel’s request to withdraw and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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