                    UNITED STATES COURT OF APPEALS
Filed 12/11/96
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                            No. 95-6398
 v.
                                                      (D.C. No. CR-94-174-R)
                                                            (W.D. Okla.)
 RICHARD ANTHONY RILEY,

        Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **



      On February 9, 1995, Appellant Richard Anthony Riley (“Riley”) was

indicted on three counts in the Western District of Oklahoma: Conspiracy to

Manufacture Methamphetamine, Distribution of Ephedrine to Manufacture



        * This order and judgment is not binding precedent, except under the doctrines of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. 34.1.9. The cause is
therefore ordered submitted without oral argument.

                                             .
Methamphetamine, and Distribution of Ephedrine, Knowing or Having

Reasonable Cause to Believe that Ephedrine would be Used to Manufacture

Methamphetamine. On June 12, 1995, Riley entered into a plea agreement with

the government whereby Riley agreed to plead guilty in exchange for the

government’s agreement to dismiss count one and to refrain from recommending

what sentence should be imposed for the remaining counts. On October 24, 1995,

Riley was sentenced to custody for a total of 198 months: 120 months on Count

Two and 78 months on Count Three to run consecutively.

      On appeal, Riley requests that we allow him to withdraw his guilty plea on

the grounds that Riley’s counsel and the district court should have inquired into

whether the physical evidence against him was destroyed in the Murrah Federal

Building bombing in Oklahoma City, Oklahoma. 1 Specifically, Riley contends

that he was denied his constitutional right to effective counsel and that the

evidence against him was insufficient. Riley’s counsel has determined that

Riley’s appeal is wholly frivolous. Accordingly, counsel has filed both a motion

to withdraw as attorney of record and a corresponding Anders brief outlining

Riley’s argument. See Anders v. California, 386 U.S. 738 (1967). 2

      1
        Riley proceeds in forma pauperis under the former 28 U.S.C.
§ 1915(a)(1994) (amended April 26, 1996). The district court granted IFP status
on April 9, 1996.
      2
          We appreciate the candor of Francis Courbois, Esq. in filing an Anders
                                                                       (continued...)

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      Pursuant to Anders, we have provided Riley with a copy of counsel’s

Anders brief and allowed him time “to raise any points that he chooses.” Anders,

386 U.S. at 744. Riley has raised three arguments not raised in the Anders brief.

First, Riley contends that his 198 month criminal sentence placed him in double

jeopardy because he had earlier suffered civil penalties when the DEA seized

some of his property pursuant to the drug forfeiture laws. Second, Riley argues

that the sentencing court erred in not considering his neurobiological disorder,

Attention Deficit Hyperactivity Disorder (ADHD). Finally, Riley argues that the

consecutive sentences imposed upon him for two overt acts of the conspiracy

violates the premise of the United States Sentencing Guideline, § 5G1.2(d).

      Anders provides that if we find Riley’s appeal wholly frivolous, we should

grant counsel’s request to withdraw and proceed to a decision on the merits. Only

“if [we] find any of the legal points arguable on their merits (and therefore not

frivolous) [must we], prior to decision, afford the indigent the assistance of

counsel to argue the appeal.” Anders, 386 U.S. at 744.

      Upon review of Riley’s arguments, we find the appeal wholly frivolous.

Accordingly, we grant counsel’s request to withdraw as attorney of record, and

we affirm Riley’s conviction.


      2
        (...continued)
brief in this appeal. As is reflected in our order and judgment, we concur in his
judgment as to the lack of merit in this appeal.

                                        -3-
                                  DISCUSSION

A.    Sufficiency of Evidence Claim

      Riley claims that the government lacked sufficient evidence to convict him

on drug distribution charges because evidence was destroyed in the Murrah

Federal Building bombing in Oklahoma City, Oklahoma. This argument is

without merit because the sufficiency of the evidence is not reviewed after a

guilty plea. A defendant who voluntarily and intelligently pleads guilty waives all

non-jurisdictional challenges to his conviction, United States v. Gaines, 964 F.2d

972, 977 (10th Cir. 1992), cert. denied, 506 U.S. 1069 (1993) including

challenges based on the grounds of insufficiency of the evidence. See United

States v. Broce, 488 U.S. 563, 577 (1989).

B.    Ineffective Assistance of Counsel Claim

      Riley claims he was provided ineffective assistance because counsel did not

tell him that the government’s evidence was destroyed in the Murrah Federal

Building bombing in Oklahoma City, Oklahoma. This claim is without merit

because there is no evidence that any physical evidence supporting Riley’s

conviction was destroyed in that bombing.

      Riley’s counsel inquired into whether any evidence was destroyed in the

Murrah Federal Building bombing and the government responded by presenting

the physical evidence for counsel’s personal observation. Counsel took


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reasonable steps in determining whether any evidence had been destroyed; that is,

counsel’s conduct did not fall below an objective standard of reasonableness

given prevailing norms. Strickland v. Washington, 466 U.S. 668, 688 (1984).

Moreover, Riley cannot show that he suffered prejudice from any counsel

misconduct because there was sufficient evidence not held in the Murrah Federal

Building to ensure Riley’s conviction. See id., at 686.

C.    Double Jeopardy Claim

      Riley’s claim that his conviction placed him in double jeopardy because he

had already suffered punishment through a civil forfeiture proceeding is without

merit. Riley failed to object to the civil forfeiture proceedings below, and when a

defendant “fails to judicially contest a civil forfeiture action by filing a claim, she

is not subject to ‘former’ jeopardy in the forfeiture action, and therefore, by

definition, the government’s subsequent prosecution of the defendant does not

constitute double jeopardy.” U.S. v. Denogean, 79 F.3d 1010, 1013 (10th Cir.),

cert. denied, 117 S. Ct. 154 (1996).

D.    Failure to Consider ADHD Claim

      A sentencing court’s application of the sentencing guidelines to a particular

set of facts is reviewed under the clearly erroneous standard of review. United

States v. Torres, 53 F.3d 1129, 1142 n. 13 (10th Cir.), cert. denied, 115 S. Ct.




                                         -5-
2599 (1995). The district court’s decision to ignore Riley’s disorder was not clear

error. 3

           Riley failed to raise his ADHD claim before sentencing, and it was not

clear error for the district court to refrain from raising the issue sua sponte when

the court’s only notice of the disorder was evidence that the defendant took

certain medications. Moreover, there is no indication that ADHD is the kind of

disorder that permits downward departures. Ordinarily, only disorders that

diminish mental capacity support a downward departure. See United States v.

Webb, 49 F.3d 636, 639 (10th Cir.), cert. denied, 116 S. Ct. 121 (1995).

E.         Inappropriate Consecutive Sentencing Claim

           U.S.S.G. § 5G1.2(d) (1988) provides:

           If the sentence imposed on the count carrying the highest statutory
           maximum is less than the total punishment, then the sentence
           imposed on one or more of the other counts shall run consecutively,
           but only to the extent necessary to produce a combined sentence
           equal to the total punishment. In all other respects sentences on all
           counts shall run concurrently, except to the extent otherwise required
           by law.

“Total punishment” is defined as that “determined by the adjusted combined

offense level.” U.S.S.G. § 5G1.2(d).




         In his brief, Riley asks us to consider medical records presented for the
           3

first time on appeal. We deny Riley’s motion to expand the record and refuse to
consider evidence not presented to the district court. See Fed. R. App. P. 10(a).


                                            -6-
      The district court determined that Riley’s adjusted combined offense level

allowed for a range of 168 to 210 months. The statutory maximum for Riley’s

conviction on count two, Distribution of Ephedrine to Manufacture

Methamphetamine, is 120 months. After the district court sentenced Riley to 120

months for Count Two, the court sentenced Riley to 78 months for his conviction

on Count Three, to be served consecutively, in order to produce a combined

sentence of 198 months.

      Riley contends that once the court sentenced him to the statutory maximum

for Count Two, the court was required to issue his sentence for Count Three to be

served concurrently. The plain language of U.S.S.G. § 5G1.2(d) rejects this

argument and allows consecutive terms so long as the “total punishment” as

determined by the adjusted combined offense level is not exceeded. United States

v. Nelson, 54 F.3d 1540, 1547 (10th Cir. 1995). Riley’s “total punishment”

allowed for a sentence of 210 months, and the district court sentenced him to 198

months. Thus, the district court properly applied the Guidelines, and no error was

committed. Id.




                                       -7-
                                 CONCLUSION

      For the reasons stated above, we AFFIRM Riley’s conviction below.

Moreover, we GRANT counsel’s request to withdraw on the grounds that

appellant’s appeal is without merit.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




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