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

                                   TENTH CIRCUIT                December 18, 2014
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 14-8039
 v.                                          (D.C. No. 2:13-CR-00111-SWS-1)
                                                         (D. Wyo.)
 ROBERT JAMES TRUBY,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.


      A federal jury convicted Robert Truby of two charges arising from his

unlawful possession of a sawed-off shotgun. 18 U.S.C. §§ 922(g)(1), 924(a)(2);

26 U.S.C. §§ 5841, 5845(a), 5845(d), 5861(d), 5871. Now the case is before us

and Mr. Truby’s attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), advising us that he discerns no colorable basis for an appeal and

seeking leave to withdraw.


      *
         After examining appellant’s brief 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); 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      Anders authorizes a defendant’s lawyer to seek permission to withdraw

from an appeal if, “after a conscientious examination,” the lawyer finds the

appeal “wholly frivolous.” Id. at 744. Invoking Anders requires counsel to

“submit a brief to the client and the appellate court indicating any potential

appealable issues based on the record.” United States v. Calderon, 428 F.3d 928,

930 (10th Cir. 2005). The client may then submit his own arguments for the

court’s consideration. Id. After all that, we must “conduct a full examination of

the record to determine whether [the] defendant’s claims are wholly frivolous.”

Id. If they are, we may grant counsel’s motion to withdraw and dismiss the

appeal. Id.

      Mr. Truby’s counsel identifies two potential points of appeal: one concerns

his client’s speedy trial rights and the other deals with the sufficiency of evidence

presented at trial. Both points, counsel argues, would be without merit. For his

part, despite being afforded opportunity to do so, Mr. Truby has not submitted

any materials disputing this analysis or identifying any other arguments he would

like to pursue. Similarly, the government has indicated its intent not to respond

to the Anders brief. After our own independent review, we agree with Mr.

Truby’s counsel that any appeal in this case would be fruitless.

      First, the Anders brief notes Mr. Truby might claim the 103-day delay

between his arrest and trial violated the Speedy Trial Act, which requires a

criminal trial to commence within 70 days of (the later of) indictment or

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appearance in the court where the charge is pending. 18 U.S.C. § 3161(c)(1).

The trouble with this argument is the speedy trial clock didn’t start ticking until

Mr. Truby’s arraignment in Wyoming, which took place two months after his

arrest in Nevada and just one month before his trial. So there’s no violation

under the Act. Neither do we see ground for a Sixth Amendment challenge. The

nine-month gap between Mr. Truby’s indictment and trial isn’t long enough to

prompt a closer look into the reasons for delay. See Barker v. Wingo, 407 U.S.

514, 530 (1972) (holding that a constitutional speedy trial claim can succeed only

where “there is some delay which is presumptively prejudicial”); United States v.

Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006) (stating than an eleven-month

delay wouldn’t qualify as presumptively prejudicial).

      Second, counsel suggests Mr. Truby might challenge the sufficiency of the

evidence by arguing the government failed to show he knowingly possessed the

firearm, much less that he also knew its barrel was less than 18 inches —

requirements under 18 U.S.C. § 922(g)(1) and 26 U.S.C. § 5845(a), respectively.

See United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004); United

States v. Michel, 446 F.3d 1122, 1129 (10th Cir. 2006). But the shotgun, found

by police in the trunk of a car driven by Mr. Truby, was wrapped in plastic and

bound with duct tape bearing his fingerprints. Given this evidence that Mr. Truby

handled the shotgun, a reasonable jury could find beyond a reasonable doubt that




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he (1) knowingly possessed it and (2) knew its obviously short barrel (clocking in

at 12.75 inches) was sawed off.

      Counsel’s motion to withdraw is granted and this appeal is dismissed.

                                             ENTERED FOR THE COURT



                                             Neil M. Gorsuch
                                             Circuit Judge




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