                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         May 24, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 10-3314
                                                 (D.C. No. 2:08-CR-20040-JWL-1)
MICHAEL L. RICHARDS,                                         (D. Kan.)

             Defendant-Appellant.


                             ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.



      A jury convicted Mr. Richards of two counts of distribution of marijuana,

21 U.S.C. §§ 841(a)(1), 841(b)(1)(D); one count of possession with intent to

distribute marijuana, id.; one count of use of a firearm during and in relation to, or

possession of a firearm in furtherance of, a drug trafficking crime, 18 U.S.C.

§ 924(c); and one count of being a felon in possession of a firearm and ammunition,



*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
id. §§ 922(g)(1), 924(a)(2).1 The district court sentenced Mr. Richards to 60 months’

imprisonment on each of the marijuana counts and to 84 months’ imprisonment on

the felon-in-possession count, all to run concurrently to each other; and to 60 months’

imprisonment on the use-of-a-firearm count, to run consecutively to the other counts,

for a total sentence of imprisonment of 144 months.

      In imposing the 84-month sentence on the felon-in-possession count, the

district court departed upward from the recommended Guideline range of 51 to 63

months. The district court also denied Mr. Richards’ motion for a downward

departure.

      On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), explaining why counsel believes there to be no reasonable grounds for

appeal. Mr. Richards has filed a response requesting appointment of counsel and

listing a number of issues for our consideration. The government did not file a

response brief.

      In his Anders brief, counsel identifies the following potentially appealable

issues in this case, none of which, according to counsel, has merit: (1) whether the

government presented sufficient evidence to support each count on which

Mr. Richards was convicted; (2) whether the district court committed reversible error

1
       The jury acquitted Mr. Richards of one charged count of maintaining a
residence for the purpose of distributing marijuana, 21 U.S.C. § 856(a)(1) & (2). It
also answered “no” to the special question on the verdict form asking whether “the
defendant discharged a firearm during and in relation to or in furtherance of a drug
trafficking crime.” R., Vol. 1 at 223.

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in its rulings on certain evidentiary issues and by failing to grant a mistrial after a

specific reference was made during trial to Mr. Richards’ prior convictions;

(3) whether the district court’s § 924(c) instruction was legally erroneous or unduly

prejudicial; and (4) whether Mr. Richards’ sentence was procedurally and

substantively reasonable.

       In his pro se response to counsel’s Anders brief, Mr. Richards presents

additional argument and citations in support of these issues. He also challenges the

district court’s § 924(c) instruction on grounds additional to those identified by

counsel, see Aplt. Resp. at 6-8; contends that he received insufficient prior notice of

the basis on which the district court predicated its upward departure, see id. at 10;

and argues that “personal use” marijuana was improperly counted against him in

deriving the base offense level used at sentencing, see id. at 11. Finally, he makes

claims of ineffective assistance of trial counsel, which cannot be considered in this

direct appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).

       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. After reviewing counsel’s helpful and excellent brief and

the additional brief filed by Mr. Richards, and having conducted the examination

required by Anders, we agree with counsel that Mr. Richards has no non-frivolous

grounds he could raise on appeal.




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       We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

Mr. Richards’ motion for appointment of counsel is DENIED. We also DENY Mr.

Richards’ “Motion for New Deadline,” filed May 18, 2012. The panel has reviewed the

trial transcript and found no colorable basis for arguments not already presented.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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