                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 19, 2011
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,
               Plaintiff–Appellee,                        No.10-3338
          v.                                   (D.C. No. 2:09-CR-20143-CM-3)
 CLAUDE WHITE,                                            (D. Kansas)
               Defendant–Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


      After examining defense counsel’s Anders brief, Appellant’s response, and

the 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). This case is therefore ordered submitted

without oral argument.

      Appellant Claude White pled guilty to bank robbery, attempted bank

robbery, and using and carrying a firearm in furtherance of a crime of violence.

The district court calculated an advisory guideline range of 130-162 months’



      *
        This order and judgment is not binding precedent, except under the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.
imprisonment for the bank robbery counts, plus a mandatory minimum sentence

of 60 months for the 18 U.S.C. § 924(c) firearm count. The court then imposed a

mid-range sentence of 144 months on the robbery counts. Combined with the

consecutive § 924(c) sentence, this resulted in a total sentence of 204 months.

         On appeal, Appellant’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), explaining why counsel believes there to be no

meritorious grounds for appeal. In response, Appellant filed a letter requesting

additional time to respond to the Anders brief. Although Appellant was granted

an extension of time to respond, he never filed additional responsive materials.

However, his initial letter to the court identified the issues he wanted to pursue on

appeal, which we address below. The government declined to file an answer

brief.

         After conducting “a full examination of all the proceedings,” id. at 744, we

agree with defense counsel that Appellant has no non-frivolous grounds to raise in

this appeal. The first potential issue Appellant identifies for appeal is a challenge

to the effectiveness of his attorney. However, “the preferred avenue for

challenging the effectiveness of counsel in a federal criminal case [i]s via

collateral attack,” United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993),

and we are persuaded this case falls within our general rule against resolving

ineffective assistance claims on direct appeal.

         Appellant’s response letter also identifies three potential challenges to the

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procedural reasonableness of his sentence, but we conclude that these challenges

do not raise a non-frivolous issue for appeal. Appellant first argues the court

erred in imposing a five-level enhancement for firearm possession during the

successful bank robbery, since his corresponding § 924(c) firearm charge was

dismissed pursuant to the plea agreement. 1 However, the facts underlying a

dismissed count may be considered relevant conduct during a sentencing

proceeding, see United States v. Svacina, 137 F.3d 1179, 1184 (10th Cir. 1998),

and we see no error in the application of this enhancement. On the basis of the

record before us, we also see no error in the calculation of Appellant’s criminal

history. As for Appellant’s final allegation of error, this appears to be a challenge

to the consecutive nature of his 60-month § 924(c) sentence. However, the

district court was mandated by statute to run this sentence consecutively, see 18

U.S.C. § 924(c)(1)(D)(ii), and it acted in accordance with this mandate.

      The record likewise reveals no meritorious appellate issues regarding the

substantive reasonableness of Appellant’s sentence. Defense counsel suggests

that Appellant could potentially raise a substantive reasonableness challenge

based on the disparity between his sentence and the sentence received by his co-

defendants, but this disparity is explained by his more extensive criminal history


      1
       The § 924(c) charge to which Appellant pled guilty related to his
attempted robbery, not the successful robbery. Pursuant to USSG § 2K2.4
Application Note 4, no enhancement was applied for Appellant’s firearm
possession during the attempted robbery.

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and would not support a reasonableness challenge in any event. See United States

v. Rojas, 531 F.3d 1203, 1209-10 (10th Cir. 2008). Nor do we see any other basis

in the record for Appellant to rebut the presumption of reasonableness attached to

his within-guidelines sentence.

      Because our review of the record persuades us that Appellant can raise no

meritorious issue on appeal, we GRANT counsel’s motion to withdraw and

DISMISS the appeal. Counsel’s motion to supplement the record on appeal is

GRANTED.

                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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