                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                   UNITED STATES COURT OF APPEALS
                                                                      November 6, 2018
                                                                     Elisabeth A. Shumaker
                                 TENTH CIRCUIT                           Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 18-6069
 v.                                             (D.C. No. 5:17-CR-00068-R-1)
                                                        (W.D. Okla.)
 JAMES CORNELIUS CHRISTIAN,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.


      Defendant-Appellant James Cornelius Christian was found guilty of one

count of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) and received an enhanced sentence under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), of 235 months’ imprisonment.

After Mr. Christian filed a pro se request for direct appeal, his counsel filed



      *
               After examining the briefs and the 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) and 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 This Order and Judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
both a motion to withdraw and an appellate brief pursuant to Anders v.

California, 386 U.S. 738 (1967), to which Mr. Christian then filed a response.

For the reasons that follow, we affirm the judgment of the district court. We

also grant the request of Mr. Christian’s counsel to withdraw.


                                       I


      In February 2017, Mr. Christian sold a 9mm pistol in the parking lot of

an Oklahoma City, Oklahoma, Lowe’s to an agent from the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”). The transaction was the

culmination of negotiations that were conducted through recorded phone calls

and text messages and brokered by a paid confidential informant. In March

2017, a one-count indictment was filed in the United States District Court for

the Western District of Oklahoma charging that Mr. Christian, a convicted

felon, violated 18 U.S.C. § 922(g)(1) by knowingly possessing a 9mm pistol.

In May 2017, a two-count superseding indictment was filed which added

another felon-in-possession charge for knowingly possessing a second pistol

that had also been discussed with the ATF agent.

      At his October 2017 trial, Mr. Christian testified that he had been

entrapped and was thus not guilty of either count. According to Mr.

Christian, the confidential informant befriended him a year prior, and they

quickly developed a close, sexual relationship. He stated that she supplied

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him with drugs and money but constantly pressured him to acquire guns and to

help her to sell them, leading him to eventually acquiesce. The district court

subsequently instructed the jury on entrapment as to both counts, and the jury,

through a general verdict, found Mr. Christian guilty with respect to Count

Two but not guilty with respect to Count One.

      At sentencing, Mr. Christian’s Guidelines imprisonment range was 235

to 295 months. He objected to his Presentence Investigation Report on the

grounds that he should receive a downward adjustment for acceptance of

responsibility, and defense counsel also filed a motion for a downward

departure or variance. The district court overruled the objection, denied the

departure and variance requests, and imposed a sentence of 235 months’

imprisonment.

      Two days after he received his sentence, Mr. Christian timely filed a pro

se request for a direct appeal. His counsel subsequently filed an Anders brief

and a motion to withdraw, and Mr. Christian filed a brief in response.

                                       II

      In Anders, the Supreme Court held that, if defense counsel determines

that their client’s appeal is “wholly frivolous,” they “should so advise the

court and request permission to withdraw.” 386 U.S. at 744. As part of this

process, counsel must also submit “a brief referring to anything in the record



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that might arguably support the appeal,” and the client may then choose to

offer additional arguments in response to counsel’s Anders brief. Id. At that

point, the court must conduct “a full examination of all the proceedings” and

determine whether the case is indeed “wholly frivolous.” Id.

      In his Anders brief, Mr. Christian’s counsel identifies the following

potentially appealable issues, none of which, according to his counsel, is

nonfrivolous: (A) Mr. Christian was wrongfully convicted because the

evidence used against him was discovered through entrapment, (B) Mr.

Christian received an unreasonably excessive sentence, and (C) a variety of

Mr. Christian’s rights were violated during the prosecution of his case. In his

pro se response to counsel’s Anders brief, Mr. Christian repeats some of these

claims and adds another: (D) Mr. Christian received ineffective assistance of

counsel. We address each of these four issues below.

                                       A

      Mr. Christian states that he was found not guilty on Count One “based

on an entrapment defense,” and thus his arrest was “illegal” and his case

“void ab initio.” Resp. to Anders Br. at 1. Specifically, Mr. Christian seeks

to apply the exclusionary rule as a remedy for his ostensible entrapment: Were

it not for the entrapment and therefore “illegal” arrest, he argues, the evidence




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that was the basis for Count Two would not and could not have been

discovered.

      Mr. Christian’s claim cannot succeed for two independent reasons. The

first is that his contention that he was found not guilty on Count One based on

an entrapment defense “is necessarily speculative. Because the jury returned

a general verdict, [Mr. Christian] can only speculate on which bases the jury”

found him not guilty. Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins.

Co., 711 F.3d 1165, 1172 (10th Cir. 2013); see also United States v.

Alexander, 817 F.3d 1205, 1214 (10th Cir. 2016) (stating that a general

verdict makes it “impossible to determine which basis the jury actually relied

upon” in reaching its determination).

      Second, even if Mr. Christian definitively had been acquitted on the

basis of entrapment, the exclusionary rule would still not apply. After all,

“the principal reason behind the adoption of the exclusionary rule was the

Government’s ‘failure to observe its own laws.’” United States v. Russell,

411 U.S. 423, 430 (1973) (quoting Mapp v. Ohio, 367 U.S. 643, 659 (1961));

see also United States v. Knox, 883 F.3d 1262, 1273 (10th Cir. 2018)

(describing the exclusionary rule as “a disincentive for law enforcement to

engage in unconstitutional activity”). Such a governmental failure to act

lawfully does not necessarily inhere in the entrapment setting; more

specifically, the entrapment defense “‘focuses on the intent or predisposition

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of the defendant’ rather than on a judgment about the propriety of the conduct

of government agents.” United States v. Dyke, 718 F.3d 1282, 1285 (10th Cir.

2013) (Gorsuch, J.) (internal alterations omitted) (quoting Russell, 411 U.S. at

429); cf. id. (“The Supreme Court has since reminded us—regularly—that we

are not to reverse convictions simply to punish bad behavior by governmental

agents, but should do so only when the bad behavior precipitates serious

prejudice to some recognized legal right of the particular defendant before

us.”). In sum, Mr. Christian’s invocation of the remedial scheme of the

exclusionary rule to provide relief regarding his ostensible showing of

entrapment as to Count One is predicated on an “analogy” between the two

doctrines that is fundamentally “imperfect” and unpersuasive. Russell, 411

U.S. at 430.

                                       B

      Mr. Christian’s counsel suggests that Mr. Christian believes his

sentence is excessive. See Anders Br. at 3. But, as counsel also suggests, no

nonfrivolous basis exists for challenging Mr. Christian’s sentence.

      This Court reviews sentences for reasonableness, applying a deferential

abuse-of-discretion standard, see, e.g., United States v. Sayad, 589 F.3d 1110,

1116 (10th Cir. 2009), and sentences imposed within the correctly calculated

Guidelines range may be presumed reasonable on appeal, see, e.g., United



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States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). Mr. Christian’s

Guidelines range was 235 to 293 months, and he received a 235-month

sentence. We detect nothing that suggests the Guidelines range was

incorrectly calculated, or that Mr. Christian can rebut the sentence’s

presumptive reasonableness.

      The district court’s clearly discretionary decision to deny Mr. Christian

a downward departure is unreviewable. See United States v. Angel-Guzman,

506 F.3d 1007, 1019 (10th Cir. 2007) (“Even after Booker, ‘[t]his court has no

jurisdiction . . . to review a district court’s discretionary decision to deny a

motion for downward departure on the ground that a defendant’s

circumstances do not warrant the departure.’” (alteration and omission in

original) (quoting United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir.

2007)). And though we may review the district court’s decision to deny Mr.

Christian a downward variance, see, e.g., United States v. Godinez-Perez, 864

F.3d 1060, 1069 (10th Cir. 2016), there is no indication that the district court

abused its discretion in this denial.

                                         C

      Mr. Christian and his counsel mention a host of other potential claims

relating to the prosecution of his case. These include arguments that his

Fourth Amendment rights were violated through an improper execution of a



                                          7
warrant and an illegal search and seizure; that his Fifth Amendment rights

were violated through compelled self-incrimination; that his Sixth Amendment

rights were violated because he was denied evidence in his favor despite

making a request for it; that his due process rights were violated because he

was not aware of the allegations and evidence to be used against him; that the

government tampered with evidence and lied about which witnesses it planned

to use; that, in a letter to defense counsel, the government made reference to

the ACCA in order to threaten him and entice him to plead guilty; and that his

continued detention violates his Thirteenth Amendment rights. See Resp. to

Anders Br. at 1–2; Anders Br. at 17–18.

      After thoroughly examining the record and the applicable law, we find

that there is no viable basis for any of these claims.

                                        D

      Finally, Mr. Christian repeatedly claims ineffective assistance of

counsel. See Resp. to Anders Br. at 1–3, 5. But ordinarily such claims should

be brought in a collateral proceeding; when brought on direct appeal,

ineffective assistance of counsel claims are “presumptively dismissible, and

virtually all will be dismissed.” United States v. Wells, 873 F.3d 1241, 1271

(10th Cir. 2017) (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th

Cir. 1995) (en banc)). This is to ensure that we review ineffective assistance



                                        8
of counsel claims only when the factual record is fully developed, and further

because “[a]n opinion by the district court is a valuable aid to appellate

review for many reasons, not the least of which is that in most cases the

district court is familiar with the proceedings and has observed counsel’s

performance, in context, firsthand.” United States v. Brooks, 438 F.3d 1231,

1242 (10th Cir. 2006) (quoting Galloway, 56 F.3d at 1240). We discern

nothing here that justifies making an exception to this principle.

                                        III

      Our careful review of the Anders brief, Mr. Christian’s response brief,

and the record leads us to the conclusion that there are no nonfrivolous

grounds to support this appeal. We thus AFFIRM the district court’s

judgment and GRANT counsel’s motion to withdraw.



                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




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