F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 28 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-5093
v. (N.D. Oklahoma)
RONALD PAUL MCALLISTER, (D.C. No. 04-CR-13-H)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Ronald McAllister pleaded guilty to one count of bank robbery on March 5,
2004. Mr. McAllister appeals from this conviction and sentence. Mr.
*
This order and judgment is not binding precedent, except under the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.
McAllister’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and moves for leave to withdraw as counsel. For the reasons set out
below, we grant counsel’s motion to withdraw and dismiss the appeal.
Before sentencing, Mr. McAllister filed a motion for a downward departure
based on duress, United States Sentencing Guidelines § 5K2.12, and poor health,
id. § 5H1.4. No objection to the presentence report was made. After a hearing at
which Mr. McAllister presented testimony in support of the motion, the district
court denied the downward departure motion. The district court followed the
presentence report’s recommendation and arrived at a total offense level of 21, a
criminal history level of VI, and a sentencing range of 77-96 months. The court
sentenced Mr. McAllister to 84 months’ imprisonment, to be followed by three
years of supervised release.
Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may advise the court and request permission to
withdraw. Counsel must also submit to both the court and his client a brief
referring to anything in the record arguably supportive of the appeal. The client
may then raise any point he chooses, and the court thereafter undertakes a
complete examination of all proceedings and decides whether the appeal is in fact
frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
the appeal. See Anders, 386 U.S. at 744.
-2-
The certificate of service indicates that Mr. McAllister has been served
with the brief and motion. He did not file a response to the Anders brief and the
government did not file an answer brief. We grant leave to withdraw and affirm
the conviction.
In the Anders brief, counsel notes that there are no viable issues for appeal.
First, there is no error within the waiver of trial rights and entry of the guilty plea.
Next, there is no fault with the guidelines sentencing range, and the sentence was
within that range and thus cannot be appealed. Third, pursuant to United States v.
Castillo, 140 F.3d 874, 887 (10th Cir. 1998), the denial of defense counsel’s
motion for downward departure is not appealable. The district court ruled that
“the facts adduced here today simply don’t support a downward departure in this
case.” Rec. vol. IV, at 40-41 (Sentencing Hr’g, dated June 17, 2004). The
district court did not rule that it lacked the discretion to grant a departure; it
recognized it had the authority to so depart. See Castillo, 140 F.3d at 887 (noting
“very rare circumstance[s]” where “courts of appeals [] exercise jurisdiction to
review a sentencing court’s refusal to depart” and recognizing that “[t]his
exception does not apply when a sentencing court concludes under the
defendant’s particular circumstances that it does not have the authority to
depart”). Finally, there exists no viable argument in light of the recent Supreme
Court holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).
-3-
We have carefully examined the record to ascertain whether any other
ground exists to support a challenge to defendant’s sentence. During the plea
colloquy, the district court informed Mr. McAllister about the consequences of
entering the plea. Mr. McAllister responded that he understood the plea
agreement and that he entered into the agreement voluntarily. We see nothing in
the record to indicate that his guilty plea was not knowing and voluntary, nor do
we discern any error in the district court’s acceptance of the plea or in the terms
of the plea agreement. Moreover, Mr. McAllister was sentenced within statutory
limits. Hence, there are no sentencing issues for appeal.
Furthermore, we find nothing in the record to indicate that the sentence
imposed was in violation of the law or the result of a misapplication of the
sentencing guidelines. We also agree that no Blakely issues are present. After
careful review of the entire proceedings, we agree with counsel that no
non-frivolous grounds for appeal appear on this record.
Accordingly, we GRANT counsel’s request to withdraw and we DISMISS
the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
-4-