                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     December 13, 2011

                                                                        Elisabeth A. Shumaker
                                   TENTH CIRCUIT                            Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,
                                                             No. 11-5055
 v.                                               (D.C. No. 4:07-CR-00153-TCK-2)
                                                             (N.D. Okla.)
 BRIAN COLE WILLIAMS,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, GORSUCH, and EBEL, Circuit Judges.


      Brian Cole Williams appeals from a 97-month sentence imposed following his

guilty plea for possession of 50 grams or more of methamphetamine with intent to

distribute. His counsel moves for leave to withdraw in a brief filed pursuant to Anders v.

California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291 and 18


      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. 32.1.
U.S.C. § 3742(a), we dismiss the appeal and grant counsel’s motion to withdraw.

                                             I

       Williams was charged with distributing methamphetamine, possessing with intent

to distribute methamphetamine, and carrying firearms during a drug trafficking crime.

Pursuant to a written plea agreement, Williams pled guilty to the possession count in

exchange for dismissal of the remaining charges. The plea agreement and an

accompanying petition to enter plea of guilty indicate that Williams knowingly and

voluntarily waived his right to proceed to trial, and was properly advised of the

consequences of his plea. Williams waived “the right to directly appeal the conviction

and sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a); however, the

defendant reserve[d] the right to appeal contested sentencing issues.”

       A Pre-Sentence Investigation Report (“PSR”) initially recommended a base

offense level of 32, based on a total of 52.3 grams of actual methamphetamine. The total

methamphetamine mixture seized from Williams was 123 grams, and a government lab

report concluded that the methamphetamine was 42.6 percent pure with a margin of error

of 2.7 percent. Because the margin of error included actual methamphetamine totals both

above and below 50 grams, Williams successfully argued that a base offense level of 30

should apply. At the sentencing hearing, Williams also objected to the assessment of a

criminal history point for a conviction that occurred after the offense of conviction but

before sentencing. The district court rejected that argument, settling on a total offense

level of 29 and a criminal history category of II. It sentenced Williams to a term of 97
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months’ imprisonment, at the low end of his advisory Guidelines range.

                                             II

       When an attorney conscientiously examines a case and determines that an appeal

would be frivolous, counsel may so advise the court and request permission to withdraw.

Anders, 386 U.S. at 744. Counsel must submit a brief highlighting any potentially

appealable issues. The defendant may then submit a pro se brief. If, upon carefully

examining the record, the court determines that the appeal is in fact frivolous, it may

grant the request to withdraw and dismiss the appeal. Id. In the case at bar, the court

notified Williams of counsel’s Anders brief and of his opportunity to file a pro se brief,

but Williams has not filed a pro se brief.

       Counsel’s Anders brief raises two potentially appealable issues. First is the

substantive reasonableness of the sentence. We review whether a sentence is

substantively reasonable under an abuse of discretion standard. See United States v.

Montgomery, 550 F.3d 1229, 1233 (10th Cir. 2008). “If the district court correctly

calculates the Guidelines range based upon the facts and imposes [a] sentence within that

range, the sentence is entitled to a presumption of reasonableness.” United States v.

Sutton, 520 F.3d 1259, 1262 (10th Cir. 2008). Nothing in the record suggests that the

district court abused its discretion in imposing a sentence at the low end of Williams’

Guidelines range.

       Second, counsel notes an unsuccessful objection made below regarding the

calculation of Williams’ criminal history category. Specifically, Williams objected to the
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assessment of a criminal history point for a conviction that occurred after the offense of

conviction but before sentencing. Tenth Circuit precedent clearly holds that such

convictions may properly be used in determining a defendant’s criminal history category.

See United States v. Cuthbertson, 138 F.3d 1325, 1327 (10th Cir. 1998); see also

U.S.S.G. § 4A1.2 app. n.1 (“A sentence imposed after the defendant’s commencement of

the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it

was for conduct other than conduct that was part of the instant offense.”).

                                              III

       Because we are not presented with any meritorious grounds for appeal, we

GRANT counsel’s request to withdraw and DISMISS the appeal.

                                            Entered for the Court




                                            Carlos F. Lucero
                                            Circuit Judge




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