                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 26, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3142
 v.                                          (D.Ct. No. 2:07-CR-20064-KHV-1)
                                                          (D. Kan.)
 DURELL JONES, aka Durrell Jones,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, 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.



      Appellant Durell Jones pled guilty to possession with intent to distribute

more than five grams of cocaine base (crack cocaine) in violation of 21 U.S.C.

      *
         This order and judgment is not binding precedent except under the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.
§ 841(a)(1) and (b)(1)(B)(iii). The district court sentenced Mr. Jones to 125

months imprisonment and four years supervised release. Although Mr. Jones

appeals his sentence, his attorney has filed an Anders brief and a motion to

withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Mr.

Jones has filed a pleading in response, submitting newly-discovered evidence not

presented to the district court which, he asserts, establishes he is not responsible

for an additional sixty-three grams of crack cocaine attributed to him in

determining his base offense level. For the reasons set forth hereafter, we deny as

moot counsel’s motion to withdraw, reverse Mr. Jones’s sentence, and remand to

the district court for the limited purpose of resentencing Mr. Jones on the issue of

the drug quantity attributable to him under United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) § 2D1.1 in light of the newly-discovered evidence

presented. 1



                                   I. Background

       On December 15, 2006, Kansas City, Kansas police officers viewed Mr.

Jones fleeing when they arrived at his residence for the purpose of arresting him


       1
          See United States v. Chisum, 502 F.3d 1237, 1245 (10 th Cir. 2007)
(denying as moot counsel’s motion to withdraw and reversing defendant’s
sentence and remanding for further proceedings regarding issue of enhancement),
cert. denied, 128 S. Ct. 1290 (2008); United States v. Mihaly, 67 F.3d 894, 897
(10 th Cir. 1995) (denying counsel’s motion to withdraw based on meritorious
argument presented on appeal and reversing and remanding for resentencing).

                                          -2-
on an outstanding warrant. Officers subsequently apprehended him in the back

yard of another home, where they also found a bag containing 5.4 grams of crack

cocaine.



      Following his arrest and indictment, Mr. Jones appeared before the district

court and entered a plea of guilty, without benefit of a written plea agreement, to

possession with intent to distribute more than five grams of cocaine base (crack

cocaine), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Following Mr.

Jones’s guilty plea, a probation officer prepared a presentence report calculating

his sentence under the applicable 2008 Guidelines. The probation officer

calculated the base offense level at 30, under U.S.S.G. § 2D1.1(c)(5), based on a

total of 68.4 grams of crack cocaine, which included the 5.4 grams of crack

cocaine recovered at the time of Mr. Jones’s arrest, as well as an additional sixty-

three grams of crack cocaine he allegedly admitted to purchasing, as discussed

hereafter. See U.S.S.G. § 2D1.1(c)(5) (Drug Quantity Tbl.). After decreasing the

offense level by three levels for acceptance of responsibility, under U.S.S.G.

§ 3E1.1(a) and (b), the probation officer calculated a total offense level of 27,

which, together with a criminal history category of IV, resulted in a recommended

Guidelines range of 100 to 125 months imprisonment. See U.S.S.G., Ch. 5, Pt. A

(Sent'g Tbl.). The probation officer also noted the minimum term of

imprisonment was five years and the maximum term was forty years.

                                          -3-
      Mr. Jones objected to the quantity calculation of 68.4 grams of crack

cocaine in determining his base offense level, stating he did not admit to

purchasing sixty-three grams of crack cocaine but only answered questions as to

whether he knew anyone from whom he could buy that amount of crack cocaine

and at what price. As a result, Mr. Jones asserted, he should only be responsible

for the 5.4 grams in his possession at the time of his arrest, for a base offense

level of 24.



      At the sentencing hearing, the government presented the testimony of

Kansas City Police Detective Greg Lawson, who interviewed Mr. Jones following

his arrest. He testified Mr. Jones admitted throwing down the bag containing five

grams of crack cocaine and also admitted previously purchasing at least sixty-

three grams of crack cocaine from his supplier, Dukey, for $1,000. Detective

Lawson also testified that, based on his law enforcement experience, $1,000 for

sixty-three grams of crack cocaine was “a little bit cheaper than the norm” and

“indicative of someone who has a relationship with a supplier and maybe even

dealing frequently with that supplier in order to get it for that low of a price.” R.,

Vol. 2 at 9.



      Mr. Jones also testified at the sentencing hearing and admitted possessing

the five grams of crack cocaine found in his possession. However, he denied ever

                                          -4-
purchasing the sixty-three grams of crack cocaine attributed to him or telling

Detective Lawson he bought that amount. Rather, Mr. Jones testified, he was

merely responding to questions by Detective Lawson on how much crack cocaine

he could get from Dukey. In support of his contention, Mr. Jones insisted his

interview with Detective Lawson was recorded and would establish he never

specifically said he purchased sixty-three grams of crack cocaine but that he

could purchase sixty-three grams of soft or powder cocaine. He testified that

Detective Lawson then asked him if he could purchase sixty-three grams of hard

or crack cocaine and he stated he could purchase that amount. Regarding his

truthfulness with respect to certain statements, Mr. Jones also admitted he lied

when he told Detective Lawson he purchased the crack cocaine from Dukey,

because he actually purchased the five grams from someone named Mark. He

also admitted he lied to a grand jury in another pending proceeding concerning a

quadruple homicide.



      At the conclusion of Mr. Jones’s testimony, the district court asked whether

a tape recording of the police interview existed and was advised by government

counsel that Detective Lawson checked with the property unit and no tape

recording had been found and he did not remember the interview being taped.

After hearing argument from both parties on the drug quantity which should be

attributed to Mr. Jones in calculating his base offense level, the district court

                                          -5-
overruled Mr. Jones’s objection to the presentence report, finding Mr. Jones was

“not a very credible witness given his track record in terms of testimony under

oath” and that the calculation of 68.4 grams of crack cocaine was “amply

supported by the record, evidence, and inferences which can reasonably be drawn

from that.” Id. at 43. While the district court explained it was possible Mr. Jones

had a different recollection of the interview than the officer did, it stated that in

its judgment the officer’s testimony was more likely an accurate representation of

what occurred. In applying the Guidelines and the 18 U.S.C. § 3553(a)

sentencing factors, the district court imposed a sentence at the high end of the

Guidelines range at 125 months imprisonment. The district court explicitly stated

it was imposing a sentence at the high end of the Guidelines range based on: (1)

Mr. Jones’s extensive juvenile history, which included being charged as an adult;

(2) his violations during supervision; (3) his history as a gang member; (4) his

very serious substance abuse; and (5) the need for the sentence to reflect the high

risk of Mr. Jones committing future crimes and to protect the public.



      Approximately three weeks after Mr. Jones’s sentencing, the government

discovered the transcript of his interview with Detective Lawson and provided a

copy to his counsel. The transcript of Mr. Jones’s interview with Detective

Lawson states, in relevant part:

      Q: Now can you ... assist us with any ... kind of enlightenment here

                                           -6-
on where you got this [five grams of] crack cocaine?

A. Uh, I might could [sic] help you get fifty grams.

Q. OK, who that [sic] be from?

A. Dukey.

      ....

Q. OK, how much does uh, you said fifty grams, how much does
fifty grams of cocaine cost?

A. $1300.

Q. OK is that soft cocaine or hard cocaine?

A. Soft but you can make it hard, but you can get it hard from
Dukey.

Q. All right. But when you got it from him on prior cases, is it hard
or soft?

A. Uh hard.

Q. All right. So you don’t cook it, you get it from him hard?

A. Yeah, when I get it from him.

Q. ... And if you got cocaine soft, how much, how many grams
would you get for $1300?

      ....

A. Sixty-three, yes.

Q. ... [S]o you would get sixty-three grams of powder cocaine, is
that correct?

A. Right.


                                   -7-
      Q. All right. And if you wanted ... it pre-cooked up, already cooked
      up in a crack cocaine, how many grams would you get for $1,300?

      A. Um, you could get sixty-three [grams] for [$]9[00] or maybe ...
      like [$]1000 ....

             ....

      Q. OK, if you want hard cocaine which is crack cocaine.

      A. Yeah.

      Q. You’re gonna pay?

      A. For sixty-three grams?

      Q. Yeah.

      A. You’re going to pay [$]1000 maybe a little more.

      Q. OK.

      A. Anywhere from [$]9[00] to like [$]1175.

Interview Tr. at A6-A9.


                                   II. Discussion

      Thereafter, Mr. Jones filed a timely pro se notice of appeal, after which his

appointed counsel filed an Anders appeal brief explaining that after an

examination of the record he could find no support in fact or law to support the

appeal. See Anders, 386 U.S. at 744. In the Anders brief, counsel did not discuss

the interview transcript but pointed out the district court made certain credibility

determinations, finding Mr. Jones’s testimony was not credible and Detective


                                         -8-
Lawson’s testimony supported using a drug quantity of 68.4 grams to calculate

the sentence. As to the reasonableness of Mr. Jones’s 125-month sentence,

counsel noted that the sentence is within the Guidelines range of 100 to 125

months imprisonment, and the district court reviewed the 18 U.S.C. § 3553(a)

sentencing factors in determining a sentence at the high end of that range was

appropriate.



      Pursuant to Anders, this court gave Mr. Jones an opportunity to respond to

his counsel’s Anders brief. Id. In response, Mr. Jones filed a letter contesting the

district court’s calculation of 68.4 grams of crack cocaine in assessing his base

offense level and claiming his sentence was procedurally unreasonable based on

that calculation. In support, he attached a copy of the transcript of his interview

with Detective Lawson provided to him after sentencing and suggested it rebutted

Detective Lawson’s testimony that he admitted to purchasing sixty-three grams of

crack cocaine. The government has filed its response, arguing the transcript

supports Detective Lawson’s testimony at the sentencing hearing, and therefore,

the district court did not erroneously calculate Mr. Jones’s relevant conduct and,

instead, imposed a sentence within the appropriate Guidelines range. None of the

parties have submitted legal argument on whether we should consider on appeal

the interview transcript which was not considered by the district court.




                                         -9-
      As required by Anders, we have conducted a full examination of the record

before us. See id. In this case, it is clear the newly-discovered evidence relied on

in this appeal was not available to either the defendant or the district court at

sentencing. Thus, it is evident the district court did not have the benefit of a

review of the transcript of Mr. Jones’s interview with Detective Lawson when

determining whether to attribute an additional drug quantity of sixty-three grams

of crack cocaine to Mr. Jones in calculating his base offense level under U.S.S.G.

§ 2D1.1. In our view, the sentencing court is the appropriate venue to conduct the

fact-finding necessary to evaluate the newly-discovered evidence offered by the

parties and is more capable of determining whether, in light of this evidence, it

would impose a different sentence. As a result, we conclude a remand for

consideration of the newly-discovered evidence by the district court is necessary.

In remanding to the district court for consideration of the issue raised, we express

no opinion on whether the evidence at issue is sufficient to change the drug

quantity attributable to Mr. Jones, leaving that determination to the district court.

Furthermore, absent a determination on remand, we cannot conclude whether Mr.

Jones’s sentence is otherwise reasonable on appeal. Finally, we disagree with Mr.

Jones’s appointed counsel that no non-frivolous grounds exist on appeal, given

our determination remand is necessary for the district court to consider the newly-

discovered evidence presented by Mr. Jones and the government on appeal.




                                          -10-
                                 III. Conclusion

      For these reasons, we deny as moot counsel’s motion to withdraw,

REVERSE Mr. Jones’s sentence, and REMAND to the district court for the

limited purpose of resentencing Mr. Jones on the issue of the drug quantity

attributable to him under U.S.S.G. § 2D1.1 in light of the newly-discovered

evidence presented.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




                                       -11-
