FILED
United States Court of Appeals
Tenth Circuit
September 10, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, Nos. 09-7011 & 09-7012
v. (E.D. Oklahoma)
VANCE WADE MOORE, (D.C. Nos. 6:08-CR-00010-RAW-1
and 6:08-CR-00023-RAW-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate records, this court has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The matters
are therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the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.
I. Background
On January 17, 2008, a federal grand jury charged appellant Vance Wade
Moore with two counts of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). On March 12, 2008, Moore was charged in a separate
indictment with assaulting, resisting or impeding an officer, in violation of 18
U.S.C. § 111; possessing, carrying and brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A); and being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Moore pleaded not guilty to
all five charges and the matters were consolidated for trial.
At Moore’s trial, the government introduced testimony from Jason
Chennault, the undersheriff of Cherokee County, Oklahoma. Chennault testified
that during an April 2007 visit to the residence Moore shared with his mother, he
observed a rifle on the living room sofa. When asked about the rifle, Moore told
Chennault it was for “protection.” Moore later testified the rifle belonged to his
mother. The jury acquitted Moore of the felon-in-possession charge arising from
this incident.
The government also presented evidence that Moore possessed a firearm on
June 17, 2007. Casey Baker, a deputy with the Cherokee County Sheriff’s
Department, testified that he observed Moore walking down a county road with a
beer in his hand. Baker approached Moore and asked for his identification.
Baker testified Moore reached behind his back as though to grab or hide
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something, prompting Baker to grab him and place his hands on the hood of the
patrol car. Moore had a pistol tucked into the waistband of his pants. During
cross-examination, Moore admitted possessing the pistol. The jury convicted
Moore of the felon-in-possession charge related to this incident.
The three charges in the March 12, 2008, indictment stemmed from an
incident that occurred at Moore’s residence on February 27, 2008. On that date,
three deputy United States Marshals and two officers from the Cherokee County
Sheriff’s Office went to Moore’s home to serve an arrest warrant. Jeremy
Hitchcock, a Cherokee County deputy sheriff, testified that he encountered Moore
as Moore exited the residence through a screen door. Hitchcock further testified
that Moore was carrying a firearm and pointed it directly at him. Moore then ran
from the residence and was not apprehended until the next day. Hitchcock
testified that a pistol was taken from Moore at the time of his arrest. During his
testimony, Moore admitted carrying the gun but denied pointing it at Deputy
Hitchcock. Moore also admitted running from the officers because he “didn’t
want to be arrested.” Moore was convicted of all three charges brought as a result
of the February 2008 incident.
II. Discussion
Moore’s counsel has invoked Anders v. California, 386 U.S. 738 (1967), in
the appellate briefs he filed in these two appeals, advising this court that any
appeal of Moore’s convictions is wholly frivolous. Pursuant to Anders, counsel is
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required to submit an “appellate brief indicating any potential appealable issues.”
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). The defendant is
notified of counsel’s brief and may submit additional arguments to this court. Id.
We “then conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous.” Id. Moore has filed a response to the
Anders briefs. Our conclusions, therefore, are based on counsel’s Anders briefs,
Moore’s response, and our own review of the record.
In his Anders briefs, Moore’s counsel states there is no basis for reversing
any of Moore’s convictions because of insufficient evidence. Having carefully
reviewed the record, we agree. As to the two felon-in-possession convictions, the
government was required to prove Moore (1) was previously convicted of a
felony, (2) knowingly possessed a firearm or ammunition, and (3) the possession
was in or affecting interstate commerce. United States v. Colonna, 360 F.3d
1169, 1178 (10th Cir. 2004). The government clearly met its burden at trial. The
parties stipulated that Moore was a convicted felon. Moore admitted possessing
the firearms both during his direct testimony and on cross-examination. The
government introduced evidence that the firearms functioned properly and had
moved at some time from one state to another.
As to Moore’s convictions for the remaining two counts in the March 12,
2008 indictment, the government introduced evidence Deputy Hitchcock went to
Moore’s residence to assist federal marshals serve a warrant. Moore admitted
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purposefully running from Deputy Hitchcock to avoid arrest. He also admitted he
had a firearm in his hand. Moore testified at trial that he did not point his weapon
at anyone, but Deputy Hitchcock testified Moore pointed the gun directly at him.
Although this court reviews de novo the sufficiency of the evidence supporting a
conviction, we do not question credibility determinations made by the jury.
United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000).
In his response, Moore alleges the law enforcement officers were not
wearing uniforms when they arrived at his house on February 27, 2008, and they
fired a Taser gun at him before they identified themselves as law enforcement
officers. These allegations, even if true, provide no support for the reversal of
Moore’s convictions. Further, even if the allegations were relevant, Moore
admitted he knew Deputy Hitchcock was a law enforcement officer when he
encountered him while fleeing the residence to avoid arrest.
The remaining issues raised by Moore in his response all involve
allegations his counsel provided ineffective assistance. Specifically, Moore
complains his trial counsel (1) did not properly cross-examine Deputy Hitchcock
or Deputy Baker, (2) did not use Deputy Baker’s prior testimony to impeach him,
(3) failed to pursue an insanity defense, and (4) refused to interview unnamed
defense witnesses. In the absence of “rare” circumstances, ineffective assistance
of counsel claims “should be brought in collateral proceedings, not on direct
appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en
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banc) (holding ineffective assistance of counsel claims “brought on direct appeal
are presumptively dismissible, and virtually all will be dismissed”). No special
circumstances exist in this case because Moore’s claims were not “adequately
developed by the district court prior to appeal.” 1 United States v. Gallegos, 108
F.3d 1272, 1280 (10th Cir. 1997).
The only other possible basis for an appeal must relate to Moore’s
sentence. The presentence investigation report (“PSR”) calculated Moore’s
advisory guidelines range as seventy-seven to ninety-six months, based on a total
offense level of twenty-two and a category V criminal history. Moore filed one
objection to the PSR which he subsequently withdrew. The district court
sentenced Moore to three, concurrent terms of eighty months’ imprisonment on
the two § 922(g)(1) convictions and the 18 U.S.C. § 111 conviction. An
additional consecutive term of eighty-four-months’ incarceration was imposed for
the brandishing conviction. See 18 U.S.C. § 924(c)(1)(A)(ii). Based on our
review of the appellate record, we discern no nonfrivolous basis upon which
Moore could challenge his sentence.
III. Conclusion
A review of the record, the Anders briefs, and Moore’s response does not
reveal any claims arguable on their merits. Accordingly, we conclude Moore’s
1
Moore’s appellate counsel also represented him during the trial
proceedings and, thus, Moore’s allegations of ineffective assistance are leveled
against the attorney representing him in this appeal.
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appeals are wholly frivolous. We grant counsel’s implied request to withdraw 2
and dismiss the appeals. Moore’s motion for appointment of substitute counsel is
denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
2
Under Anders, 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 v. California, 386 U.S. 738,
744 (1967). Although Moore’s counsel did not explicitly move to withdraw, we
interpret his Anders briefs to include such a request.
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