UNITED STATES COURT OF APPEALS
Filed 1/8/97
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7087
DENNIS STEPHEN WALDON, (D.C. No. CR 96-25-B)
(E. D. Okla.)
Defendant-Appellant
ORDER*
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**
Defendant Dennis Waldon appeals his 248 month sentence imposed after he
pled guilty to violating 18 U.S.C. § 922(g) (felon in possession of a firearm), 18 U.S.C. §
2113(a) and (d) (armed bank robbery), and 18 U.S.C. § 924(c) (use of a firearm during a
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and conditions of 10th Cir. R.
36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
crime of violence). Appellate counsel, pursuant to Anders v. California, 386 U.S. 738
(1967), filed a brief noting his belief that there were no meritorious appellate issues and
requesting that this court allow him to withdraw from the case. However, counsel did,
consistent with Anders’s dictates, point to one issue that he believed could arguably
support an appeal. Defendant did not, nor was he required to, file a brief in response to
counsel’s Anders brief or Government’s appellee brief. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742. After due consideration and an independent
review of the record, see United States v. Lambert, 603 F.2d 808, 809 n.2 (10th Cir.
1995), we dismiss the appeal as frivolous and grant defense counsel’s motion to
withdraw.
The one issue which counsel highlighted in his Anders brief is that the Defendant
was potentially improperly sentenced as a career criminal under United States Sentencing
Guideline § 4B1.1. The question presented is whether Defendant’s previous conviction
for attempted robbery with a dangerous weapon, wherein he attempted a robbery using a
knife but was thwarted by the victim, constitutes a “crime of violence” so that it may be a
proper predicate for his sentencing as a career offender. This question is amply answered
by U.S.S.G. § 4B1.2 which explains that a crime of violence “means any offense under
federal or state law . . . that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 4B1.2 (emphasis added). We
recognized this clear definition in an analogous case decided under the same guideline.
2
See United States v. Allen, 24 F.3d 1180, 1185 (10th Cir. 1994) (holding that drug
conspiracy convictions support career criminal findings). It is obvious that the attempt to
commit a crime of violence is sufficient.
Having read the briefs before us and reviewed the trial record, we find no arguable
claim that Defendant was improperly found to be a career criminal. We find this appeal
frivolous.
APPEAL DISMISSED. COUNSEL’S MOTION TO WITHDRAW IS
GRANTED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3