                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 2, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,
                                                       No. 05-3452
          v.                                           (D. Kansas)
                                               (D.C. No. 05-CR-40017-SAC)
 SERIGN E ND IAY E,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Judge, A ND ER SO N and BROR BY, Circuit Judges.




      After examining the briefs and 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). 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       This order and judgment is not binding precedent, except under the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. 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. 36.3.
      Serigne Ndiaye was found guilty following a jury trial of one count of

knowingly and intentionally possessing with intent to distribute approximately

979.64 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1). He was

sentenced to sixty-three months’ imprisonment, followed by four years of

supervised release. Ndiaye has filed a timely appeal.

      Ndiaye’s appointed counsel, Stephen Kessler, has filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Ndiaye has not submitted a response to his counsel’s Anders brief. The

government has filed an answer brief. For the reasons set forth below, we agree

with M r. Kessler that the record in this case provides no nonfrivolous basis for an

appeal, and we therefore grant his motion to withdraw and we dismiss this appeal.



                                  BACKGROUND

      On M arch 17, 2005, Kansas Highway Patrol Trooper Richard Jimerson

stopped a commercial passenger vehicle driven by Ndiaye. The trooper stopped

the vehicle in order to check its registration, log book and medical certificate, all

of w hich are required for operation of a commercial vehicle, as w ell as to perform

a safety inspection. Ndiaye’s co-defendant, Ebrima Tunkara, was sitting in the

front passenger seat of the vehicle.

      W hen asked by Trooper Jimerson, Ndiaye produced a certificate of

registration, but could not produce either a log book or a medical certificate. H e

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also did not have a passenger manifest and a commercial driver’s license. The

trooper testified that Ndiaye seemed nervous during the stop and would not

maintain eye contact with the officer.

      Additionally, Trooper Jimerson testified that, as he stood by the vehicle

door, he could smell raw marijuana. W hen asked by the trooper, Ndiaye opened

an emergency exit to the vehicle and Jimerson observed four large boxes stacked

in the aisle of the vehicle. Jimerson entered the vehicle, where he detected a

strong smell of raw marijuana emanating from the boxes. W hen asked what the

boxes contained, Ndiaye stated that they belonged to passengers that he had taken

from Atlanta to Denver. He was unable to explain, however, why the boxes

remained in the van after the passengers had been delivered. Trooper Jimerson

opened the boxes and discovered they contained one pound bricks of marijuana.

      Both Ndiaye and Tunkara were arrested. Following their arrest, additional

amounts of marijuana were found in luggage in the back of the van. Ndiaye was

given his M iranda rights and agreed to make a statement. He told another

highway patrol trooper that he had delivered passengers to Denver and then

proceeded to Phoenix, Arizona, to pick up bags and boxes. W hen interviewed by

an agent with the Drug Enforcement Agency, he stated that he did not know the

boxes contained marijuana, but that he did know they contained something illegal.

H e also stated that w hen he and Tunkara reached Phoenix, they met two

M exicans, and that they subsequently drove the van to a strip mall where the

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boxes and luggage w ere loaded into the van. At one point, he told investigators

that Tunkara was the leader of the whole enterprise, and that he (Ndiaye) was

merely follow ing Tunkara’s orders.

      At Ndiaye’s trial, evidence was presented that receipts were found in the

van from Phoenix, M issouri and Colorado. Additionally, over Ndiaye’s objection,

evidence was introduced showing that various phone calls were made to and from

cell phones found on Ndiaye and Tunkara at the time of their arrest. Further

investigation revealed that both seized phones had shared numbers in their

memories, which were traced to two cell phones possessed by subscribers in

Phoenix. The phone records showed a number of calls between Ndiaye and

Tunkara and the Phoenix-based cell phones. Ndiaye did not testify at his trial.

The jury found him guilty of one count of possession of marijuana with intent to

distribute. This appeal followed.



                                    D ISC USSIO N

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to




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      submit a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client may then
      choose to submit arguments to the court. The [c]ourt must then
      conduct a full examination of the record to determine whether
      defendant’s claims are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it may grant
      counsel’s motion to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).

      In his Anders brief, Ndiaye’s counsel indicates that Ndiaye believes he has

two grounds for appeal: (1) that the evidence supporting his conviction is

insufficient; and (2) that the district court erred in admitting into evidence the cell

phone records of calls made to and from cell phones belonging to Ndiaye and

Tunkara, where there was no direct evidence of who made or received the calls.

W e agree with Ndiaye’s counsel that neither argument presents a nonfrivolous

basis for an appeal. W e briefly explain why.



      1. Sufficiency of evidence

      “W e review challenges to the sufficiency of the evidence de novo.” United

States v. Isaac-Sigala, 448 F.3d 1206, 1210 (10th Cir. 2006). In conducting that

review, “we consider only whether, taking the evidence–both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom–in

the light most favorable to the government, a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” Id. (further quotation omitted). “A




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conviction should be reversed only if no reasonable juror could have reached the

disputed verdict.” Id. (further quotation omitted).

      Ndiaye argues there was insufficient evidence demonstrating he knowingly

possessed the marijuana found in the van. W e disagree. W hile Ndiaye continued

to insist that he did not know the boxes and luggage contained marijuana, there

was substantial evidence to the contrary. Having carefully reviewed the entire

record, the argument that the evidence supporting Ndiaye’s conviction is

insufficient is frivolous.



      2. Admission of cell phone records

      As indicated, the government introduced cell phone records from the

phones found on Ndiaye and Tunkara at the time they were arrested. These

records showed that both phones had made and received calls from Phoenix-based

cell phone customers. The government sought to introduce the phone records on

the ground that there was probative value in the fact that: (1) calls were made on

Ndiaye’s phone, thereby demonstrating that he was a principal in the offense;

(2) the calls showed an association with Tunkara, who was making and receiving

calls from the same individuals in Phoenix; and (3) the calls demonstrated an

association with the location where the drugs were obtained, thereby undermining

Ndiaye’s claim that he was unaware of the contents of the boxes and/or an

innocent dupe of Tunkara.

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      “W e review rulings on admission and exclusion of evidence for abuse of

discretion.” United States v. Allen, 449 F.3d 1121, 1125 (10th Cir. 2006). Once

again, having reviewed the entire record in this case, we conclude that the

argument that the district court abused its discretion in admitting the phone

records is frivolous. The records were clearly probative and relevant to the

government’s case.



                                  C ON CLU SIO N

      For the foregoing reasons, we GRANT counsel’s motion to withdraw and

we DISM ISS this appeal.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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