                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        March 7, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 06-3146
          v.                                              (D. Kansas)
 CORDELL NICHOLS, also known as                 (D.C. No. 02-CR-40098-JAR)
 Quinndell Johnson,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Circuit Judge, PO RFILIO and A ND ER SO N, 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.

      Following a remand to the district court for resentencing pursuant to the

United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220


      *
        This order and judgment is not binding precedent except under the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.
(2005), defendant-appellant Cordell Nichols was once again sentenced to 360

months’ imprisonment, followed by ten years of supervised release. He appeals

that sentence.

      Nichols’ appointed counsel, Stephen W. Kessler, has filed an Anders brief

and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738

(1967). Nichols has submitted several of his own pro se pleadings, at least one of

which the government has construed as Nichols’ opening brief. The government

has filed a brief. For the reasons set forth below, we agree with M r. Kessler that

the record in this case provides no non-frivolous basis for an appeal, and we

therefore grant his motion to withdraw and dismiss this appeal.



                                 BACKGROUND

      In June 2003, Nichols was found guilty by a jury of one count of possession

with intent to distribute approximately 4.6 kilograms of heroin, in violation of 21

U.S.C. § 841(a), and one count of conspiracy to distribute in excess of one

kilogram of heroin, in violation of 21 U.S.C. § 846. The district court sentenced

Nichols to 360 months’ imprisonment, followed by ten years of supervised

release.

      Nichols filed a direct appeal of his conviction and sentence, in which he

argued four issues: (1) evidence seized following two traffic stops should have

been suppressed because the stops violated the Fourth Amendment; (2) testimony

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regarding a third traffic stop should have been held inadmissable under Fed. R.

Evid. 404(b); (3) a Drug Enforcement Agency (“DEA”) agent’s testimony

regarding allegedly threatening statements made by Nichols at the time of his

arrest should also have been held inadmissible under Rule 404(b); and (4) there

was insufficient evidence to support Nichols’ conspiracy conviction. This court

considered each of those issues, and affirmed Nichols’ conviction and sentence.

United States v. Nichols, 374 F.3d 959 (10th Cir. 2004) (“Nichols I”), vacated by,

543 U.S. 1113 (2005).

      W hile his direct appeal was pending, Nichols filed a motion for relief from

the judgment based on newly discovered evidence. 1 The newly discovered

evidence Nichols wanted to bring to the court’s attention was evidence that

prosecution witness Trooper W eigel, contrary to w hat he testified to at Nichols’

trial, did not investigate other accidents on the day of the traffic stop that led to

the charges against Nichols. Nichols argued this calls into serious question

Trooper W eigel’s credibility and veracity. The district court denied N ichols’

motion, noting that Rule 60(b) has no application to a criminal judgment, but the

court declined to characterize Nichols’ motion as a collateral attack under 28

U.S.C. § 2255.




      1
       Nichols’ motion was entitled “M otion for Relief from Judgment Pursuant
to Rule 60(b)(2), N ewly Discovered Evidence.”

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      In January 2005, the Supreme Court vacated our decision and remanded the

case for further consideration in light of Booker. On remand, our court reinstated

its opinion affirming Nichols’ conviction and remanded the case to the district

court for resentencing. United States v. Nichols, 410 F.3d 1186 (2005) (“Nichols

II”). Following that remand, Nichols again filed a motion for a new trial, this

time pursuant to Fed. R. Crim. P. 33(b)(1), again arguing he had newly

discovered evidence. The newly discovered evidence upon which this motion was

based was the same evidence that Trooper W eigel had not investigated any

accidents the day Nichols’ car was stopped.

      In M arch 2006, the district court resentenced Nichols. At his resentencing

hearing, Nichols pressed his claim for relief under Rule 33. His defense counsel

conceded that these claims were not properly before the court on remand for

resentencing only, and the district court summarily denied N ichols’ motion for a

new trial. Nichols also objected to the two-level enhancement of his base offense

level for possession of a firearm, which w as proposed in the presentence report

(“PSR”) which the probation officer had prepared before Nichols’ initial

sentencing. He further objected to an enhancement for obstruction of justice.

The district court noted these objections but overruled them for the same reasons

the district court had overruled them at Nichols’ first sentencing in 2003.

      The district court then calculated Nichols’ total offense level as thirty-

eight, which, with a criminal history category of IV , yielded an advisory

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sentencing range under the United States Sentencing Commission, Guidelines

M anual (“USSG ”), of 324 to 405 months. The district court then sentenced

Nichols to 360 months’ imprisonment, followed by ten years of supervised

release.

      Following the sentencing hearing, the district court issued a written order

memorializing its findings. In this written order, the district court discussed the

merits of Nichols’ Rule 33 motion for a new trial and discussed the multiple

grounds for denying the motion. 2 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 determine 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:




      2
        The court observed, first, that Nichols’ pro se motions, filed while he was
represented by counsel, were subject to denial because Nichols w as not entitled to
hybrid representation. The court further noted that it lacked jurisdiction to
address Nichols’ motions because the case was only before it on remand for
resentencing. Finally, the court explained why, in any event, Nichols was not
entitled to a new trial— “the evidence offered by [Nichols] is, at best, merely
impeaching” and it “[c]ertainly . . . would not produce an acquittal.” Order at 3,
R. Vol. I, doc. 289. The district court also concluded that the government did not
withhold the evidence in violation of Brady v. M aryland, 373 U.S. 83 (1963).

                                          -5-
      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).

      W e agree with counsel that there is no nonfrivolous issue related to the

district court’s imposition of the sentence in this case. The government addresses

four possible arguments Nichols raises in this appeal. His counsel only addresses

two, while Nichols’ pro se pleadings aver that all four issues are valid. W e

address each argument and explain why none provides a nonfrivolous ground for

appeal.



I.    Unlaw ful Search of Apartment

      Nichols argues that law enforcement authorities unlaw fully searched his

residence where they found the heroin and firearms. W e concluded that the

search was lawful in Nichols I, a conclusion which has become law-of-the-case.

United States v. Gama-Bastidas, 222 F.3d 779, 784 (10th Cir. 2000).

Furthermore, the issue is not properly before us because the remand from our

court to the district court was limited to resentencing, not to reaching issues

underlying Nichols’ conviction.




                                         -6-
II.    W ithholding of Exculpatory Evidence

       Nichols argued in his Rule 33 motion for a new trial that the government

withheld exculpatory evidence in the form of Trooper W eigel’s allegedly perjured

testimony that he investigated another accident the day he stopped Nichols’ car,

whereas N ichols subsequently discovered that the trooper had not, in fact,

investigated an accident. 3 He asserts this violated Brady. As indicated, the

district court rejected this argument on multiple grounds, including that the issue

was not properly before the court because it related to the merits of N ichols’

conviction, whereas the case had been remanded solely for resentencing. W e

agree that this issue was not properly before the district court, nor is it properly

before us.



III.   Denial of M otion for New Trial

       As indicated, the district court rejected Nichols’ motion for a new trial

based on newly discovered evidence. Among the grounds cited for the denial was

the fact that, once again, this issue was beyond the scope of this court’s remand.

That is grounds for our refusal to consider this issue as w ell.




       3
        In one of his pro se pleadings, Nichols also appears to challenge the
validity of the initial traffic stops of his car. W e upheld the validity of those
stops in Nichols I. Thus, those determinations are law-of-the-case and,
furthermore, are beyond the scope of the remand.

                                          -7-
IV.   Booker Error

      In his Sentencing M emorandum filed prior to his resentencing hearing,

Nichols argued that the enhancements for possession of a firearm and for

obstruction of justice were improper under Booker, because the jury did not find

the facts upon which the enhancements were made. He also argued there was

insufficient evidence of those enhancements. The district court rejected these

objections, for the same reasons it rejected them at Nichols’ initial sentencing.

      Booker rendered the Guidelines advisory. W e have expressly stated that,

following Booker, it is proper for a sentencing court to make factual findings for

purposes of enhancing sentences using a preponderance of the evidence standard,

so long as the Guidelines are considered advisory. United States v. M agallanez,

408 F.3d 672, 684-85 (10th Cir. 2005); see also United States v. Dalton, 409 F.3d

1247, 1252 (10th Cir. 2005) (“Booker therefore does not render judicial fact-

finding by a preponderance of the evidence per se unconstitutional.”). The

district court properly found by a preponderance of the evidence that the two

enhancements w ere warranted, and Nichols’ argument that the court erred is

frivolous.

      To the extent Nichols also argues that his Confrontation Clause rights were

violated by the court’s reliance on statements attributed to Nichols’ girlfriend,

Sheneice Sanders, in the PSR, we note we have explicitly rejected this argument.

United States v. Bustamonte, 454 F.3d 1200, 1202 (10th Cir. 2006) (“W e see

                                         -8-
nothing in Crawford[ v. W ashington, 541 U.S. 36 (2004)] that requires us to

depart from our precedent ‘that constitutional provisions regarding the

Confrontation Clause are not required to be applied during sentencing

proceedings.” (quoting United States v. Hershberger, 962 F.2d 1548, 1554 (10th

Cir. 1992)).



                                 C ON CLU SIO N

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

we DISM ISS this appeal. All outstanding motions are denied.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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