                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                           January 4, 2007
                       UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                    TENTH CIRCUIT                            Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 06-5092
                                                      (D.C. No. 05-CR-152-JHP)
 UNRICO RANIER MINNERS,                             (Northern District of Oklahoma)

           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before TACHA, Chief Judge, McWILLIAMS, Senior Circuit Judge, and PORFILIO,
Senior Circuit Judge.




       Unrico Ranier Minners (the defendant), and Bobby Horn, a co-defendant, were at

the Cherokee Casino located in Indian Country in Oklahoma, on July 28, 2005, when they

observed a patron of the casino win a large amount of money. The patron was 66 years

old and used a cane. The defendant and Horn, and another, thereafter followed the patron

to his home, which was located off the Indian Reservation. The defendants approached

the patron as he exited his vehicle at his home and demanded money, with Horn holding a

firearm at the patron’s head. The patron refused to give them his winnings, whereupon



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
Horn shot the patron in his buttocks. The patron then went to the trunk of his car,

retrieved therefrom $1800.00 in cash and handed the cash and his wallet to the defendant

and Horn, who then fled the scene.

       In a 6-count indictment, the defendant was charged as follows: In Count 2 with

conspiring with Horn, and others, to commit certain offenses against the United States, to

wit: leaving Indian Country with an intent to intimidate another person in violation of 18

U.S.C. § 2261(A)(1), as alleged in Count 3 of the indictment, and the Use of a Firearm

During and In Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)

(1)(A)(iii), as alleged in Count 4 of the indictment, all in violation of 18 U.S.C. §371; in

Count 3 of the indictment, defendant and Horn were charged with, each aiding and

abetting the other, leaving Indian Country, with an intent to intimidate another person and

in the course thereof, and as a result of such travel, placing that person in reasonable fear

of serious bodily harm by use of a dangerous weapon, in violation of 18 U.S.C. §

2261A(1) and 18 U.S.C. §2; in Count 4 defendant and Horn were charged with using a

firearm in furtherance of a crime of violence as had been more fully set forth in Count 3,

all in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 2; and in Count 6

defendant was charged with possessing a firearm in or affecting interstate commerce after

having been convicted of three described felonies, in violation of 18 U.S.C. §922(g)(1)

and §924(a)(2).

       The defendant was represented in the district court by the Federal Public

Defender’s Office, which also represents him on appeal. On November 17, 2005, the

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defendant, pursuant to a plea agreement with the government, entered an unconditional

plea of guilty on all four counts of the indictment. The plea agreement provided, inter

alia, that the defendant would plead guilty to all counts, waive his right to appeal, and the

government agreed to move at sentencing for a downward departure of one offense level

pursuant to U.S.S.G. § 5Kl.l.

       At sentencing on March 29, 2006, the district court, after departing downward one

offense level, determined defendant’s total offense level at 33 which, when coupled with

a criminal history category of VI, set the guideline range for defendant’s sentence at 235

to 293 months imprisonment. The court then sentenced defendant to imprisonment for

235 months.

       On April 10, 2006, the defendant, pro se, filed a timely notice of appeal in the

district court. That notice read as follows:

              Pro se Petitioner Unrico Minners respectfully submits in
              concordance with the rules of this court, and the Tenth
              Circuit, a timely Notice of Appeal. Pro se Petitioner seeks
              relief from this court, or that of the Tenth Circuit of Appeals
              under a petition for habeas corpus relief a motion 2255 for a
              violation of Petitioners constitutional right to effect counsel,
              and for violation of sixth amendment rights. Pro se petitioner
              asks respectfully that notice to appeal legality of Petitioners
              sentence be granted.

       On August 16, 2006, the Public Defender’s Office filed in this court a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), on behalf of the defendant and at

the same time filed a Motion to Withdraw as appointed counsel for the defendant. A

copy of the Anders brief and the motion to withdraw were served on the defendant. In the

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motion to withdraw, counsel stated that he had read the court records in defendant’s case

and “found no issues that are viable for appeal.”

       On November 13, 2006, the United States filed with this court its Notice that an

answer brief would not be filed. In that notice the government stated that the appellant

had been granted until September 15, 2006, to respond to his counsel’s Anders brief and

that he had failed to respond.

       In Anders, supra, the Supreme Court spoke as follows:

              . . . if counsel finds his case to be wholly frivolous, after a
              conscientious examination of it, he should advise the court
              and request permission to withdraw. That request must,
              however, be accompanied by a brief referring to anything in
              the record that might arguably support the appeal. A copy of
              counsel’s brief should be furnished the indigent and time
              allowed him to raise any points that he chooses; the court--not
              counsel--then proceeds, after a full examination of all the
              proceedings, to decide whether the case is wholly frivolous.
              If it so finds it may grant counsel’s request to withdraw and
              dismiss the appeal insofar as federal requirements are
              concerned, or proceed to a decision on the merits, if state law
              so requires.

       Id. at 744.

       Pursuant to our reading of Anders, supra, in United States v. Snitz, 342 F.3d 1154,

1157 (10th Cir. 2003), we spoke as follows:

              The basic principle underlying the cited cases is that, aside
              from when an appellant elects to proceed pro se, every direct
              criminal appeal must be briefed on the merits by counsel and
              decided accordingly by the court unless, after a thorough
              review of all pertinent proceedings, the appeal is determined
              initially by counsel and then independently by the court to be
              wholly frivolous. See generally Smith[ v. Robbins], 528 U.S.

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              [259,] 279-80 (discussing and applying Court’s present
              understanding of its ‘chief cases in this area,’ including
              Anders, Penson, and McCoy.)

       In that same case, at 1158, quoting McCoy v. Court of Appeals of Wisc.
       Dist.

1, 486 U.S. 429, 438-39 (1988), we then spoke as follows:

              As for the professional responsibilities of counsel, ‘the
              appellate lawyer must master the trial record, thoroughly
              research the law, and exercise judgment in identifying the
              arguments that may be advanced on appeal. . . . Only after
              such an evaluation has led counsel to the conclusion that the
              appeal is ‘wholly frivolous’ is counsel justified in making a
              motion to withdraw. This is the central teaching of Anders.’

       And finally, in Snitz at 1158, we then spoke as follows:

              The court’s obligation does not end once it concludes that counsel
              reviewed the record and found no error. Because it is ‘the court-not
              counsel’ that ultimately ‘decides whether the case is wholly
              frivolous,’ Anders, 386 U.S. at 744, counsel’s assessment triggers the
              final responsibility of the court, which must ‘itself conduct “a full
              examination of all the proceeding[s] to decide whether the case is
              wholly frivolous.”’ Penson[ v. Ohio,] 488 U.S.[ 75], 80 (1988)
              (quoting Anders, 386 U.S. at 744).

       We conclude that in the instant case, counsel for the defendant has followed the

teaching of Snitz. Discharging our responsibility under Snitz, based on a full examination

of the record before us, and a consideration of the Anders brief filed by counsel, we

conclude that there are no non-frivolous issues upon which the defendant has a basis for

appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

       In his pro se Notice of Appeal, defendant suggests, perhaps, that he was denied his

Sixth Amendment right to the effective “assistance of counsel for his defense.” It is well

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established, however, that the issue of ineffective trial counsel cannot be raised on direct

appeal, and can only be raised in a collateral proceedings. See United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). In that case we stated that ineffective

assistance of counsel claims should be brought in collateral proceedings, not on direct

appeal. The reason for the rule is so that a “factual record” may then be fully developed.

       Appeal dismissed and motion to withdraw granted.

                                                  Submitted for the Court,



                                                  Robert H. McWilliams
                                                  Senior Circuit Judge




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