FILED
United States Court of Appeals
Tenth Circuit
February 22, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 11-6075
v. (D.C. No. 5:10-CR-00096-R-1)
WILLIAM KEVIN KNITTEL, (W.D. Oklahoma)
Defendant–Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
After examining counsel’s Anders brief, Defendant’s pro se filings, and the
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). This case is therefore ordered submitted without
oral argument.
Defendant pled guilty to being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g). His guilty plea was conditional:
he preserved his right to appeal (1) the district court’s denial of his motion to
*
This order and judgment is not binding precedent, except under the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.
suppress; (2) the district court’s exercise of subject matter jurisdiction; and (3)
the issue of whether he received effective assistance of counsel. On appeal,
Defendant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), explaining why counsel believes there are no reasonable grounds for
appeal, and a motion for leave to withdraw as counsel. Defendant filed a pro se
brief objecting to counsel’s characterization of his case. The government did not
file a response brief.
BACKGROUND
On October 30, 2008, a Texas court issued a warrant for Defendant’s arrest
on a charge of first degree murder. A few days later, Defendant was indicted on
this charge, and the court issued a second warrant for his arrest. A Texas
sheriff’s department then issued an all-points-bulletin (APB) to law enforcement
across the country for Defendant’s arrest. The APB identified Defendant, listed
the charges he was accused of, described the car he was driving, and stated that
Texas authorities believed he was en route to Oklahoma.
On November 9, 2008, an Oklahoma State Bureau of Investigation agent
recognized Defendant’s car and pulled him over. Defendant immediately told the
officer he had a gun in his car. The officer arrested Defendant and subsequently
found a gun loaded with six rounds of ammunition between the driver’s seat and
the door of the vehicle. Defendant waived extradition and was transported back
to Texas for prosecution on the murder charge. On March 16, 2010, an Oklahoma
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federal grand jury issued an indictment on the current felon-in-possession charge,
and Defendant was transferred to federal custody.
The Texas warrant that prompted the Defendant’s arrest was based largely
on an affidavit from Ronald Ring, a Texas sheriff’s office investigator.
Defendant filed a motion to suppress the arrest warrant on the ground that the
affidavits on which it relied contained knowingly false statements and omitted
relevant facts. The district court denied Defendant’s motion and held “there is no
basis for concluding that Mr. Ring either included deliberate falsehoods in his
affidavit, or made allegations therein with a reckless disregard for truth, or that he
made material omissions in the affidavit.” (R. vol. 1 at 129.) The district court
therefore denied Defendant’s request for a Franks hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978).
Throughout the proceedings Defendant was represented by counsel, but he
complained about this representation on several occasions. At one point, the
district court allowed Defendant to proceed pro se, with appointed counsel acting
as standby. Defendant also continued to submit evidence regarding the Texas
murder charge, which the district court continued to find insufficient to
necessitate a Franks hearing.
When the parties appeared for trial, Defendant offered to plead guilty if he
could preserve certain challenges. He asked the district court if an acceptance of
responsibility reduction would apply to his sentence, and after the government
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stated it would oppose such a reduction, the district court said this would be up to
the court which would not make a determination at this point. Defendant then
decided to plead guilty, and asked for his counsel’s representation through
sentencing. The district court conducted a change of plea hearing and ordered a
Presentence Investigation Report (PSR). A few weeks later Defendant, acting pro
se, sought to withdraw his guilty plea mostly on the basis that his interlocutory
appeal had been denied. The district court denied the motion, explaining to
Defendant that his right to appeal arose after sentencing, not before, and was still
intact.
Before and at sentencing, Defendant made numerous pro se objections to
the PSR, including an objection to receiving only a two-point, rather than a three-
point, reduction for acceptance of responsibility. The district court sustained one
objection but overruled other objections, including Defendant’s objection
regarding the acceptance of responsibility reduction. The district court then
sentenced Defendant to the high end of the guidelines range—ninety-six months
of incarceration. This appeal followed.
DISCUSSION
When defense counsel files an Anders brief, we are required to conduct “a
full examination of all the proceedings, to decide whether the case is wholly
frivolous.” Anders, 386 U.S. at 744. We agree with counsel that Defendant has
no non-frivolous grounds he could raise on appeal. In his Anders brief, counsel
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notes five possible bases for appeal: (1) the district court’s refusal to suppress the
arrest warrant; (2) the district court’s denial of Defendant’s motion to withdraw
his guilty plea; (3) the district court’s exercise of jurisdiction; (4) the Defendant’s
sentence; and (5) the effectiveness of Defendant’s trial counsel. Defendant’s pro
se brief raises additional argument.
We agree with Defendant’s appellate counsel that none of these issues raise
a meritorious issue for appeal. We first address whether the district court should
have suppressed the arrest warrant.
When reviewing a district court’s denial of a motion to suppress, this
court accepts the district court’s factual findings unless they are
clearly erroneous, viewing the evidence in the light most favorable to
the government. However, the ultimate determination of
reasonableness under the Fourth Amendment is a question of law and
is reviewed de novo under the totality of circumstances.
United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001). Defendant
asserts the arrest warrant lacked probable cause. “In determining whether a
search warrant is supported by probable cause, this court reviews the sufficiency
of the affidavit upon which a warrant is issued by looking at the totality of the
circumstances and simply ensuring that the magistrate had a substantial basis for
concluding that probable cause existed.” United States v. Cooper, 654 F.3d 1104,
1124 (10th Cir. 2011) (quotation marks omitted). “Probable cause means that
there is a fair probability that contraband or evidence of a crime will be found in
a particular place.” Id. (quotation marks omitted). In this case, the district court
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found “the arrest warrant was supported by probable cause.” (Appellant’s App.
vol. 1 at 131.) After a thorough review of the affidavit supporting the warrant,
we agree.
Defendant argues the district court erred in denying him a Franks hearing
on his motion to suppress. A defendant is entitled to a Franks hearing if he
“makes substantial showing that the affidavit contains intentional or reckless false
statements and if the affidavit, purged of its falsities, would not be sufficient to
support a finding of probable cause.” United States v. Kennedy, 131 F.3d 1371,
1376 (10th Cir. 1997) (citing Franks.). Further, “the standards of deliberate
falsehood and reckless disregard set forth in Franks apply to material omissions,
as well as affirmative falsehoods.” Id. (quotation marks omitted). “A defendant’s
allegations must be accompanied by an offer of proof.” Cooper, 654 F.3d at
1128. “Defendants must point out specifically the portion of the warrant affidavit
that is claimed to be false; and they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily explained.” Id.
(quotation marks omitted).
“This court has not adopted a standard of review for the denial of a Franks
hearing but other Circuit Courts of Appeals apply either a clear error standard or
a de novo standard.” Id. (quotation marks and alterations omitted). Even under
the higher de novo standard, Defendant did not merit a Franks hearing.
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Defendant’s affidavit in support of his motion to suppress offered no statements
from witnesses and no other offer of proof other than his own account, most of
which confirmed the details in Investigator Ring’s affidavit supporting the arrest
warrant. We agree with the district court that Defendant failed to make a
substantial showing that false statements were included or material facts omitted
in the affidavit. Defendant was therefore not entitled to a Franks hearing.
As for Defendant’s appeal of the district court’s denial of his motion to
withdraw his guilty plea, we turn to Fed. R. Crim. Proc. 11(d)(2)(B). A defendant
may withdraw a plea after it has been accepted but before the court imposes
sentence if he can show “a fair and just reason for requesting the withdrawal.” Id.
We review the district court’s denial of a motion to withdraw under an abuse of
discretion standard, looking to seven factors to determine whether the defendant
showed a “fair and just” reason. United States v. Graham, 466 F.3d 1234, 1238
(10th Cir. 2006). 1 Based on these factors, we hold the district court did not abuse
its discretion in denying Defendant’s motion, which was premised on his
mistaken assumption the court had denied his right to appeal.
Defendant also argues the district court lacked jurisdiction over the offense.
1
The seven factors are: (1) whether the defendant has asserted his
innocence; (2) whether withdrawal would prejudice the government; (3) whether
the defendant delayed in filing his motion to withdraw, and if so, the reason for
the delay; (4) whether withdrawal would substantially inconvenience the court;
(5) whether close assistance of counsel was available to the defendant; (6)
whether the plea was knowing and voluntary; and (7) whether the withdrawal
would waste judicial resources. Graham, 466 F.3d at 1238-39.
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However, as appellate counsel correctly notes, Defendant has not articulated any
non-frivolous basis to challenge the district court’s jurisdiction.
As to Defendant’s sentence, Defendant argues the district court promised
him a three-point reduction for acceptance of responsibility rather than the two-
point reduction he ultimately received. Pursuant to U.S.S.G. § 3E1.1, after
applying a two-level adjustment for acceptance of responsibility, a district court
may apply an additional acceptance-of-responsibility adjustment only upon the
government’s motion, or, if the government refuses to file a motion, if the district
court concludes “the refusal was (1) animated by an unconstitutional motive, or
(2) not rationally related to a legitimate government end.” United States v.
Moreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005) (quotation marks omitted).
Because the government did not file a § 3E1.1 motion and there is no evidence
that this refusal was improper, we have no authority to review this issue. See id.
Moreover, we note the record does not support Defendant’s contention that the
district court promised a three-point reduction. As to the sentence in general, we
see no error in the district court’s calculation of the applicable sentencing
guidelines range, and we see no basis by which Defendant could rebut the
presumption of reasonableness attached to his within-guidelines sentence. See
United States v. Thompson, 518 F.3d 832, 866-67 (10th Cir. 2008).
Finally, Defendant argues he received ineffective assistance of counsel.
However, “the preferred avenue for challenging the effectiveness of counsel in a
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federal criminal case [i]s via collateral attack,” United States v. Gordon, 4 F.3d
1567, 1570 (10th Cir. 1993), and we are persuaded this case falls within our
general rule against resolving ineffective assistance claims on direct appeal.
There are two other issues counsel’s Anders brief does not discuss. First,
Defendant includes in his multiple lengthy and disconnected submissions a
request to remand to the district court for “Brady violation[s]” that his counsel
allegedly caused by withholding evidence. (Def’s Supp. Br. at 2.) Defendant
argues in general he has not received certain discovery items and is therefore
disadvantaged. Defendant misunderstands the Brady v. Maryland, 373 U.S. 83
(1963), standard. “To establish a Brady violation, the defendant must prove that
the prosecution suppressed evidence, the evidence was favorable to the defense,
and the evidence was material.” United States v. Erickson, 561 F.3d 1150, 1163
(10th Cir. 2009). Defendant, though, alleges his counsel has withheld evidence.
Brady does not apply. Second, Defendant requests remand to the district court to
decide a motion to dismiss for newly discovered evidence he submitted to the
district court during the pendency of this appeal. Specifically, Defendant argues
he has new evidence the that Texas sheriff’s office knew the victim of the Texas
murder was alive after witnesses saw him with Defendant. We have reviewed the
submitted evidence and conclude no remand is necessary.
Our thorough review of the record persuades us that Defendant can raise no
meritorious issue on appeal. We therefore GRANT counsel’s motion to withdraw
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and DISMISS the appeal. We DENY all other pending motions.
Entered for the Court
Monroe G. McKay
Circuit Judge
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