                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 22, 2013
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 13-5019
                                              (D.C. No. 4:12-CR-00135-CVE-1)
 LAFAYETTE ANTONIO WILSON,                               (N.D. Okla.)

              Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Lafayette Wilson appeals his conviction for possessing firearms and

ammunition while a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Addressing Mr. Wilson’s appeal under the analytical framework set forth in




      *
            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)(C); 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      This order and judgment is not binding precedent except under the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.
Anders v. California, 386 U.S. 738 (1967), 1 we affirm the judgment and sentence

of the district court, deny Mr. Wilson’s request to hold the case in abeyance, and

grant the request of Mr. Wilson’s counsel to withdraw from further

representation of Mr. Wilson in this matter.

                                          I

      After Mr. Wilson was discovered by police in a car with various weapons, a

federal grand jury in the Northern District of Oklahoma charged him with

possessing firearms and ammunition while a felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). Mr. Wilson pleaded not guilty and, in anticipation of

trial, stipulated that he was a felon within the meaning of § 922(g)(1) when he

allegedly possessed the firearms and ammunition. A jury trial was held, at the

close of which the jury found Mr. Wilson guilty of the charged offense. The

district court sentenced him to seventy-eight months in prison.

                                         II

      In her Anders brief, counsel for Mr. Wilson states that she has reviewed the

record and found no non-frivolous issues to appeal. Mr. Wilson has filed two pro

se briefs. In the first, he asks the court to hold his appeal in abeyance pending the

Supreme Court’s decision in Rosemond v. United States (No. 12-895) and further


      1
             To summarize Anders, the Supreme Court held there that if defense
counsel determines that a client’s appeal is “wholly frivolous,” counsel must
inform the court, request permission to withdraw, and submit “a brief referring to
anything in the record that might arguably support the appeal.” 386 U.S. at 744.

                                         -2-
argues that his conviction may be affected by the Supreme Court’s recent decision

in Alleyne v. United States, --- U.S. ----, 133 S. Ct. 2151 (2013). The government

has filed a single brief, in which it agrees with Mr. Wilson’s counsel that there

are no non-frivolous issues to raise on appeal. In his second brief, Mr. Wilson

responds to the government’s argument concerning Alleyne.

      Our discussion begins with an examination of Mr. Wilson’s request for a

stay and abeyance; we conclude that one is not warranted. We then take up

Alleyne and explain why it provides Mr. Wilson no non-frivolous ground for

appeal. Finally, we consider the potential appealable issues identified in the

Anders brief and demonstrate why neither those issues nor any other issues

discernible in the record justify his appeal.

                                           A

      Mr. Wilson contends that Rosemond may undermine the validity of his

conviction. In Rosemond, the petitioner sought certiorari based upon a decision

of our court, asking the Supreme Court to decide the following question:

             Whether the offense of aiding and abetting the use of a firearm
             during and in relation to a crime of violence or drug trafficking
             crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires
             proof of (i) intentional facilitation or encouragement of the use
             of the firearm, as held by the First, Second, Third, Fifth, Seventh,
             Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge
             that the principal used a firearm during a crime of violence or
             drug trafficking crime in which the defendant also participated,
             as held by the Sixth, Tenth, and District of Columbia Circuits.

Pet. for Writ of Cert., at I, Rosemond v. United States, No. 12-895 (filed Jan. 16,

                                          -3-
2013), 2013 WL 225985, at *I; see United States v. Rosemond, 695 F.3d 1151,

1153 (10th Cir. 2012), cert. granted, --- U.S. ----, 133 S. Ct. 2734 (2013). And

the Court granted certiorari.

      According to Mr. Wilson, if the Supreme Court decides in Mr. Rosemond’s

favor, it will be problematic that Mr. Wilson’s jury never found that he had

knowledge that the firearms and ammunition were in the car. The government

responds with two rebuttals. First, it submits that, in light of the jury instructions,

“the jury necessarily found that [Mr. Wilson] knew that the guns were in the car.”

Aplee. Br. at 12. Second, it asserts that the Court’s decision in Rosemond will be

inapposite in any event because the case deals with a different offense. The

government is right on both counts.

      The jury was instructed that a guilty verdict was only appropriate if it

found that Mr. Wilson “knowingly possessed a firearm or ammunition.” R., Vol.

I, at 57 (Jury Instructions, filed Oct. 15, 2012). It was also informed that the

prosecution could prove either actual or constructive possession. Actual

possession, according to the instructions, occurs when an individual “knowingly

has direct physical control over an object or thing.” Id. at 62. Constructive

possession, by contrast, could be found if Mr. Wilson “knowingly ha[d] both the

power and the intention at a given time to exercise dominion or control over an

object, either directly or through another person or persons.” Id.

      Assuming the jury followed the (unchallenged) instructions—as we must,

                                          -4-
see, e.g., United States v. Caldwell, 560 F.3d 1202, 1213 (10th Cir.

2009)—whichever route the jury took to its verdict, it implicitly found that Mr.

Wilson knew the guns and firearms were in the car. Thus, even if the Supreme

Court were to eventually hold by implication in Rosemond that the jury in the

instant case was required to find that Mr. Wilson knew the guns and ammunition

were in the car—which appears unlikely for reasons discussed infra—his

conviction would remain sound because the jury did implicitly find that fact. Cf.

United States v. LaVallee, 439 F.3d 670, 705–06 (10th Cir. 2006) (finding no

Sixth Amendment error where the facts triggering a sentencing enhancement were

“implicit in the jury’s verdict”).

      Moreover, the only criminal offense at issue in Rosemond is that of aiding

and abetting the use or carriage of “a firearm in relation to a crime of violence or

drug-trafficking offense, or possessing a firearm in furtherance of such an

offense,” in violation of 18 U.S.C. § 924(c)(1)(A). Rosemond, 695 F.3d at 1153.

This is a very different charge than the one leveled at Mr. Wilson. Most notably,

there are at least two layers of complexity separating Mr. Rosemond’s alleged

offense from Mr. Wilson’s: first, the aiding-and-abetting theory of criminal

liability, and second, the connection between the firearm and the specified

offenses. In other words, these two factors are not relevant to Mr. Wilson’s

conviction predicated on § 922(g)(1). Yet, our analysis in Rosemond focused

entirely on these facets of the § 924(c)(1)(A) offense, see id. at 1154–56, and

                                         -5-
there is no reason to believe, in light of the question that Mr. Rosemond presented

to the Supreme Court for decision, that the Court will have a different analytical

focus. In sum, we conclude that the Court’s ruling in Rosemond very likely

would be inapposite to our resolution of this case and, accordingly, there is no

need to hold the appeal in abeyance pending the Court’s decision in Rosemond.

                                         B

      In his opening brief, Mr. Wilson urges us to afford him counsel on appeal

on the ground that, under Alleyne, the jury was required by the Sixth Amendment

to find the fact of his prior conviction. The government responds by noting that

Mr. Wilson stipulated to the felony and that Alleyne explicitly declined to extend

its holding to the fact of a prior conviction. A prior conviction, the government

observes, can in fact be considered a sentencing factor and not an element of an

offense for Sixth Amendment purposes under the Court’s decision in Almendarez-

Torres v. United States, 523 U.S. 224 (1998). Acknowledging this point, Mr.

Wilson scales back his argument in his reply brief, limiting it to the contention

that the Supreme Court will likely overrule Almendarez-Torres in the near future.

Consequently, he asks us to allow him to proceed in his appeal in order to

preserve the issue so that he can benefit when the Supreme Court does revisit the

question.

      Both Mr. Wilson and the government elide a crucial—and dispositive—fact

from his trial: the jury did find that Mr. Wilson was a felon within the meaning of

                                         -6-
§ 922(g)(1). See R., Vol. I, at 57 (instructing the jury that “to find [the]

defendant guilty of this crime you must be convinced that the United States has

proved . . . beyond a reasonable doubt [that] . . . [the] defendant was convicted of

a felony, that is, a crime punishable by imprisonment for a term exceeding one

year, before he possessed the firearm or ammunition”); id. at 76 (Verdict Form,

filed Oct. 15, 2012) (finding Mr. Wilson guilty). This was quite proper, as it is

beyond dispute that a felony conviction is “an essential element of a violation of

18 U.S.C. § 922(g)(1)” that must be proven to the jury beyond a reasonable doubt.

United States v. Bagby, 696 F.3d 1074, 1083 (10th Cir. 2012); accord United

States v. Kitchell, 653 F.3d 1206, 1228 (10th Cir. 2011).

      Whether it remains good law or not, Almendarez-Torres is inapposite. The

Supreme Court in that case upheld a statutory provision in which Congress

categorized recidivism as a sentencing factor. Almendarez-Torres, 523 U.S. at

247. Congress did the opposite here; it explicitly denominated the fact of a prior

conviction an element of § 922(g)(1). The district court correctly treated it as

such and therefore sent the question to the jury. If the Supreme Court sees fit in

the future to overrule Almendarez-Torres and hold that the fact of a prior

conviction must always be proved to the jury beyond a reasonable doubt under the

Sixth Amendment, Mr. Wilson would gain nothing from the development because

that is exactly what happened in his case. Consequently, he has no non-frivolous




                                          -7-
Sixth Amendment issue to appeal. 2

                                         C

      Mr. Wilson’s counsel identifies three other potential claims that could be

raised on appeal, all of which she deems frivolous. First, she avers that there was

no violation of Federal Rule of Criminal Procedure 11 or Boykin v. Alabama, 395

U.S. 238 (1969). Next, counsel finds no error in Mr. Wilson’s sentencing.

Lastly, counsel notes that any ineffective assistance claim must be raised in a

28 U.S.C. § 2255 motion, not on direct appeal. The government agrees on all

three points, and we do as well. 3 Furthermore, we have conducted a thorough,

independent examination of the record, and we conclude that there are no non-

frivolous issues to present on appeal.




      2
             Because we reject Mr. Wilson’s Sixth Amendment claim on the
ground that the jury found the fact of his prior conviction, we do not address the
government’s reliance on the fact that he stipulated to the felony. We do note,
however, that the jury was informed of the stipulation.
      3
              While ineffective-assistance claims can be brought on direct appeal
in certain unusual cases with adequately developed records, they are never
preferred and are especially inappropriate where the district court has not ruled on
the matter in the first instance. United States v. Brooks, 438 F.3d 1231, 1242
(10th Cir. 2006). In the case at bar, there is neither an adequately developed
record nor a decision from the district court on ineffective assistance. Mr. Wilson
did file a motion for a new trial with the district court in which he alleged, inter
alia, that his attorney displayed “utter ineffectiveness,” R., Vol. I, at 84 (Rule 33
Mot. for New Trial, filed Jan. 3, 2013), but the court struck it and did not rule on
the merits of any ineffective-assistance claim.

                                         -8-
                                       III

      For the reasons stated, we affirm the judgment and sentence of the district

court, deny Mr. Wilson’s request to hold the case in abeyance, and grant the

request of Mr. Wilson’s counsel to withdraw from further representation of Mr.

Wilson in this matter. 4



                                             Entered for the Court



                                             JEROME A. HOLMES
                                             Circuit Judge




      4
             We also deny Mr. Wilson’s request for the appointment of new
appellate counsel as moot.

                                       -9-
