                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAR 17 2004
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 03-5108
 v.                                              (D.C. No. 02-CR-128-EA)
                                                       (N.D. Okla.)
 RODNEY LOVETT WILKINS,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant Rodney Lovett Wilkins appeals from his plea and

sentence for possession of a firearm after former conviction of a felony. Counsel

for Mr. Wilkins submitted a brief pursuant to Anders v. California, 386 U.S. 738,

744 (1967), and moved for leave to withdraw as counsel. Mr. Wilkins responded

with a one-page statement regarding “appeal issues.” We have jurisdiction over

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the appeal under 28 U.S.C. § 1291 and jurisdiction to review the sentence under

18 U.S.C. § 3742. We dismiss the appeal and grant counsel’s request to

withdraw.

      Mr. Wilkins was indicted for (1) possession of a firearm after a former

conviction of a misdemeanor crime of domestic violence, 18 U.S.C. § 922(g)(9),

and (2) possession of a firearm after a former conviction of a felony, 18 U.S.C. §

922(g)(1). I Aplt. App., R. Doc. 1. He pleaded guilty to both counts, and neither

he nor his counsel sought to withdraw the plea. At sentencing, the first count was

dismissed upon the government’s motion to dismiss due to a plain violation of

double jeopardy. On the second count, the presentence investigation report

(“PSR”) included an offense level of 23 and a criminal history category of VI,

resulting in a sentencing guideline range of 92-115 months. II Aplt. App. at 21.

No objection was made to the presentence report. Mr. Wilkins was sentenced to

115 months imprisonment, followed by three years of supervised release. He also

received a $2,500 fine and a special assessment of $100.

      In his Anders brief, counsel for Mr. Wilkins states that he “has diligently

searched the record for any non-frivolous issues which are arguable on appeal,”

and having done so, finds there “are no appellate issues in this case.” Aplt. Br. at

4. In response, Mr. Wilkins argues that the district court erred by including a

prior “voidable sentence” in calculating his criminal history category. In


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accordance with Anders, we must proceed, “after a full examination of all the

proceedings, to decide whether the case is wholly frivolous.” 386 U.S. at 744.

      Mr. Wilkins was reported as having 13 criminal history points in the PSR,

which gave him a criminal history category of VI. II Aplt. App. at 16. One point

was included under U.S.S.G. § 4A1.1(c) because Mr. Wilkins pleaded guilty to an

“Assault and Battery–Domestic Abuse, After Former Conviction for Assault and

Battery–Domestic Abuse” in Osage County. Id. at 14, ¶ 36. He received

supervised probation for two years and his sentence was deferred until October

29, 2003. Another two points were included under U.S.S.G. § 4A1.1(d) because

the instant offense was committed while Mr. Wilkins was serving “a criminal

justice sentence” for the Osage County offense. Id. at 15, ¶ 39. Mr. Wilkins did

not object to the inclusion of these points at the time of sentencing. However, he

now argues, citing Stewart v. State, 989 P.2d 940, 944 (Okla. Crim. App. 1999),

that the sentence was “voidable” because he was not eligible for a deferred

sentence under Okla. Stat. tit. 22, § 991c, as he was “previously convicted of a

felony offense.” See id. § 991c(F). Mr. Wilkins therefore argues the district

court erred in including the offense in the calculation of his criminal history

category.

      Because Mr. Wilkins “failed to object to the calculation of his criminal

history category below, this court reviews the district court’s sentencing


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determination for plain error.” United States v. Mendez-Lopez, 338 F.3d 1153,

1159 (10th Cir. 2003). Under the plain error standard, we review the district

court’s sentencing “for particularly egregious or obvious and substantial legal

error, which our failure to consider would result in a miscarriage of justice.”

United States v. Lowder, 5 F.3d 467, 472 (10th Cir. 1993) (internal quotation

marks and citations omitted). Even if Mr. Wilkins establishes an error that affects

his substantive rights, reversal is nevertheless inappropriate unless the error was

also “clear or obvious.” United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir.

2000). Thus, even assuming the prior sentence was voidable, as Mr. Wilkins

argues, this error was not clear or obvious to the district court upon sentencing.

      In addition, a defendant may not collaterally attack a prior state court

conviction under the guidelines unless “otherwise recognized in law.” U.S.S.G. §

4A1.2, comment n.6. This court has allowed a collateral attack on a prior

conviction only in cases of a “complete violation of the right to counsel,” United

States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994), and in this case it is clear Mr.

Wilkins was represented by counsel in the prior state court conviction. II Aplt.

App. at 14, ¶ 36. After a full examination of the proceedings, we conclude Mr.

Wilkins’s appeal is frivolous.




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      Accordingly, we GRANT counsel’s request to withdraw and DISMISS the

appeal.

                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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