                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-3009
                                                             (D. Kan.)
 CORY E. BROWN,                                      (D.Ct. No. 97-CR-40096)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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 Cory E. Brown, appearing through counsel who filed an Anders


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
brief, 1 appeals the sentence the district court imposed following his guilty plea.

We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.



      Mr. Brown pled guilty to one count of robbery of a post office in violation

of 18 U.S.C. § 2114 and a second count for use of a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c). The district court initially sentenced

Mr. Brown to consecutive sentences of thirty-six months incarceration for the

robbery conviction and sixty months incarceration for the firearm conviction.

After his appeal time expired, Mr. Brown filed a motion pursuant to 28 U.S.C.

§ 2255 to vacate, set aside, or correct his sentence. In his motion, Mr. Brown

asserted his counsel failed to file a timely appeal despite Mr. Brown’s insistence

on contesting his sentence. Following an evidentiary hearing, the district court

granted Mr. Brown’s § 2255 motion finding his trial attorney failed to determine

if Mr. Brown knowingly and voluntarily waived his right to appeal. The district

court then determined “[t]he proper remedy is to vacate ... [Mr. Brown’s]

sentence and allow him to be resentenced so he may perfect an appeal.”


      1
         See Anders v. California, 386 U.S. 738, 744 (1967) (requiring counsel who finds
an appeal to be wholly frivolous to advise the court, request permission to withdraw, and
provide an accompanying brief referring to anything in the record that might arguably
support the appeal.) Accordingly, Mr. Brown’s appellate attorney provided a brief
outlining Mr. Brown’s claims, noting his belief Mr. Brown’s appeal is frivolous, and
requesting permission to withdraw as counsel.


                                           -2-
Accordingly, the district court vacated Mr. Brown’s sentence, directed the

probation office to prepare an amended presentencing report, and permitted the

parties to file objection thereto. Following a sentencing hearing and objections

filed by both parties, the district court entered an order resentencing Mr. Brown to

fifteen months incarceration for the robbery conviction, instead of the initial

thirty-six months, and to the same sixty months incarceration for the firearm

conviction, both to run consecutively.



      On direct appeal, Mr. Brown’s appellate counsel raises two grounds of

error at Mr. Brown’s direction, in accordance with the Anders requirements. We

construe Mr. Brown’s first argument as contesting the district court’s adverse

rulings on his five objections to the presentencing report. 2 A review of Mr.

Brown’s objections shows he contested the district court’s factual findings and

application of the United States Sentencing Guidelines (“U.S.S.G.”) to those

findings.




      2
          Counsel provided Mr. Brown’s argument, in its entirety, as follows:

             At issue in this appeal are Mr. Brown’s five objections to the
      presentence report which were all denied by the Court. The Court made
      specific findings with respect to each objection raised in its Memorandum
      and Order memorializing the rulings.


                                            -3-
      In his second argument on appeal, Mr. Brown asserts the district court

lacked authority to impose a separate consecutive sentence for his firearm

conviction under 18 U.S.C. § 924(c) and United States v. Gilkey, 118 F.3d 702

(10th Cir. 1997), which discusses application of U.S.S.G. § 2B3.1(b)(2).

Essentially, Mr. Brown is asserting the district court should have enhanced his

sentence under § 2B3.1(b)(2) for use of a firearm during commission of a crime

of violence, rather than apply a separate sixty-month consecutive sentence for his

firearm conviction. In making this argument, however, Mr. Brown’s appellate

counsel admits this Circuit clearly settled this issue in United States v. Blake, 59

F.3d 138 (10th Cir.), cert. denied, 516 U.S. 1016 (1995). The government

counsel contends that because Mr. Brown did not raise this argument before the

district court, our review must be for plain error. Mr. Brown filed and was

granted a motion to extend time to file a response to his own counsel’s Anders

brief, but Mr. Brown failed to file the reply brief outlining his sentencing

arguments.



      We begin with our standard of review. Generally, “[w]e review questions

of law regarding application of the Sentencing Guidelines de novo ... [and]

findings of fact under the clearly erroneous standard, mindful of our obligation to

give ‘due regard’ to the district judge’s determinations of the credibility of


                                          -4-
witnesses.” United States v. Wiseman, 172 F.3d 1196, 1217-18 (10th Cir.)

(citations omitted), cert. denied, 120 S. Ct. 211 (1999). However, we review

legal questions involving application of the Sentencing Guidelines for plain error

when they are raised for the first time on appeal. Gilkey, 118 F.3d at 704.



      Applying these standards, and after a complete review of the record, we

find no merit in Mr. Brown’s arguments on appeal. The five objections to the

presentencing report raised by Mr. Brown are thoroughly addressed in the district

court’s December 15, 1999 Memorandum and Order. Based on certain credibility

determinations, the district court made factual findings: 1) Mr. Brown acted as an

organizer, leader, manager or supervisor in the robbery, and 2) Mr. Brown held

victims at gun point, used a laser sight on the gun to intimidate them and ensure

their cooperation, and forced them to the floor at gun point. Based on these

findings, the district court 1) applied a two-level enhancement under U.S.S.G. §

3B1.1(c) for Mr. Brown’s role as an organizer, leader, manager or supervisor in

the robbery; 2) applied a two-level enhancement for physical restraint with a

firearm under U.S.S.G. § 2B3.1(b)(4)(B); and 3) declined to apply a two-level

reduction in Mr. Brown’s sentence under U.S.S.G. § 3B1.2(b), holding Mr. Brown

did not play a minor role in the offense. Finally, in addressing Mr. Brown’s

objection his offense level should not be increased by six levels under U.S.S.G.


                                         -5-
§ 2B3.1(b)(2)(B), the district court noted it already granted Mr. Brown’s

objection to such an increase prior to issuance of the new presentencing report.

Under the circumstances presented and the applicable legal standards applied, we

find no error in the district court’s treatment of Mr. Brown’s objections to the

presentencing report.



      As to Mr. Brown’s second argument, we review it for plain error. In so

doing, we agree this Circuit fully addressed the issue Mr. Brown presents on

appeal in Blake. See 59 F.3d at 139-40. For the purpose of judicial economy, we

believe Mr. Brown’s argument deserves no further discussion, other than to

announce our holding the district court did not errr in consecutively sentencing

Mr. Brown for the separate conviction of using a gun during the robbery pursuant

to 18 U.S.C. § 924(c). See Blake, 59 F.3d at 139-40.



      For these reasons, we AFFIRM Mr. Brown’s conviction and sentence.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                         -6-
