                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 22, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,
              Plaintiff–Appellee,
                                                         No. 11-6075
 v.                                             (D.C. No. 5:10-CR-00096-R-1)
 WILLIAM KEVIN KNITTEL,                               (W.D. Oklahoma)

              Defendant–Appellant.


                           ORDER AND JUDGMENT *


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


      After examining counsel’s Anders brief, Defendant’s pro se filings, 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.

      Defendant pled guilty to being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g). His guilty plea was conditional:

he preserved his right to appeal (1) the district court’s denial of his motion to



      *
        This order and judgment is not binding precedent, except under the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.
suppress; (2) the district court’s exercise of subject matter jurisdiction; and (3)

the issue of whether he received effective assistance of counsel. On appeal,

Defendant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), explaining why counsel believes there are no reasonable grounds for

appeal, and a motion for leave to withdraw as counsel. Defendant filed a pro se

brief objecting to counsel’s characterization of his case. The government did not

file a response brief.

                                  BACKGROUND

      On October 30, 2008, a Texas court issued a warrant for Defendant’s arrest

on a charge of first degree murder. A few days later, Defendant was indicted on

this charge, and the court issued a second warrant for his arrest. A Texas

sheriff’s department then issued an all-points-bulletin (APB) to law enforcement

across the country for Defendant’s arrest. The APB identified Defendant, listed

the charges he was accused of, described the car he was driving, and stated that

Texas authorities believed he was en route to Oklahoma.

      On November 9, 2008, an Oklahoma State Bureau of Investigation agent

recognized Defendant’s car and pulled him over. Defendant immediately told the

officer he had a gun in his car. The officer arrested Defendant and subsequently

found a gun loaded with six rounds of ammunition between the driver’s seat and

the door of the vehicle. Defendant waived extradition and was transported back

to Texas for prosecution on the murder charge. On March 16, 2010, an Oklahoma

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federal grand jury issued an indictment on the current felon-in-possession charge,

and Defendant was transferred to federal custody.

      The Texas warrant that prompted the Defendant’s arrest was based largely

on an affidavit from Ronald Ring, a Texas sheriff’s office investigator.

Defendant filed a motion to suppress the arrest warrant on the ground that the

affidavits on which it relied contained knowingly false statements and omitted

relevant facts. The district court denied Defendant’s motion and held “there is no

basis for concluding that Mr. Ring either included deliberate falsehoods in his

affidavit, or made allegations therein with a reckless disregard for truth, or that he

made material omissions in the affidavit.” (R. vol. 1 at 129.) The district court

therefore denied Defendant’s request for a Franks hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978).

      Throughout the proceedings Defendant was represented by counsel, but he

complained about this representation on several occasions. At one point, the

district court allowed Defendant to proceed pro se, with appointed counsel acting

as standby. Defendant also continued to submit evidence regarding the Texas

murder charge, which the district court continued to find insufficient to

necessitate a Franks hearing.

      When the parties appeared for trial, Defendant offered to plead guilty if he

could preserve certain challenges. He asked the district court if an acceptance of

responsibility reduction would apply to his sentence, and after the government

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stated it would oppose such a reduction, the district court said this would be up to

the court which would not make a determination at this point. Defendant then

decided to plead guilty, and asked for his counsel’s representation through

sentencing. The district court conducted a change of plea hearing and ordered a

Presentence Investigation Report (PSR). A few weeks later Defendant, acting pro

se, sought to withdraw his guilty plea mostly on the basis that his interlocutory

appeal had been denied. The district court denied the motion, explaining to

Defendant that his right to appeal arose after sentencing, not before, and was still

intact.

          Before and at sentencing, Defendant made numerous pro se objections to

the PSR, including an objection to receiving only a two-point, rather than a three-

point, reduction for acceptance of responsibility. The district court sustained one

objection but overruled other objections, including Defendant’s objection

regarding the acceptance of responsibility reduction. The district court then

sentenced Defendant to the high end of the guidelines range—ninety-six months

of incarceration. This appeal followed.

                                     DISCUSSION

          When defense counsel files an Anders brief, we are required to conduct “a

full examination of all the proceedings, to decide whether the case is wholly

frivolous.” Anders, 386 U.S. at 744. We agree with counsel that Defendant has

no non-frivolous grounds he could raise on appeal. In his Anders brief, counsel

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notes five possible bases for appeal: (1) the district court’s refusal to suppress the

arrest warrant; (2) the district court’s denial of Defendant’s motion to withdraw

his guilty plea; (3) the district court’s exercise of jurisdiction; (4) the Defendant’s

sentence; and (5) the effectiveness of Defendant’s trial counsel. Defendant’s pro

se brief raises additional argument.

      We agree with Defendant’s appellate counsel that none of these issues raise

a meritorious issue for appeal. We first address whether the district court should

have suppressed the arrest warrant.

      When reviewing a district court’s denial of a motion to suppress, this
      court accepts the district court’s factual findings unless they are
      clearly erroneous, viewing the evidence in the light most favorable to
      the government. However, the ultimate determination of
      reasonableness under the Fourth Amendment is a question of law and
      is reviewed de novo under the totality of circumstances.

United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001). Defendant

asserts the arrest warrant lacked probable cause. “In determining whether a

search warrant is supported by probable cause, this court reviews the sufficiency

of the affidavit upon which a warrant is issued by looking at the totality of the

circumstances and simply ensuring that the magistrate had a substantial basis for

concluding that probable cause existed.” United States v. Cooper, 654 F.3d 1104,

1124 (10th Cir. 2011) (quotation marks omitted). “Probable cause means that

there is a fair probability that contraband or evidence of a crime will be found in

a particular place.” Id. (quotation marks omitted). In this case, the district court


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found “the arrest warrant was supported by probable cause.” (Appellant’s App.

vol. 1 at 131.) After a thorough review of the affidavit supporting the warrant,

we agree.

      Defendant argues the district court erred in denying him a Franks hearing

on his motion to suppress. A defendant is entitled to a Franks hearing if he

“makes substantial showing that the affidavit contains intentional or reckless false

statements and if the affidavit, purged of its falsities, would not be sufficient to

support a finding of probable cause.” United States v. Kennedy, 131 F.3d 1371,

1376 (10th Cir. 1997) (citing Franks.). Further, “the standards of deliberate

falsehood and reckless disregard set forth in Franks apply to material omissions,

as well as affirmative falsehoods.” Id. (quotation marks omitted). “A defendant’s

allegations must be accompanied by an offer of proof.” Cooper, 654 F.3d at

1128. “Defendants must point out specifically the portion of the warrant affidavit

that is claimed to be false; and they should be accompanied by a statement of

supporting reasons. Affidavits or sworn or otherwise reliable statements of

witnesses should be furnished, or their absence satisfactorily explained.” Id.

(quotation marks omitted).

      “This court has not adopted a standard of review for the denial of a Franks

hearing but other Circuit Courts of Appeals apply either a clear error standard or

a de novo standard.” Id. (quotation marks and alterations omitted). Even under

the higher de novo standard, Defendant did not merit a Franks hearing.

                                          -6-
Defendant’s affidavit in support of his motion to suppress offered no statements

from witnesses and no other offer of proof other than his own account, most of

which confirmed the details in Investigator Ring’s affidavit supporting the arrest

warrant. We agree with the district court that Defendant failed to make a

substantial showing that false statements were included or material facts omitted

in the affidavit. Defendant was therefore not entitled to a Franks hearing.

      As for Defendant’s appeal of the district court’s denial of his motion to

withdraw his guilty plea, we turn to Fed. R. Crim. Proc. 11(d)(2)(B). A defendant

may withdraw a plea after it has been accepted but before the court imposes

sentence if he can show “a fair and just reason for requesting the withdrawal.” Id.

We review the district court’s denial of a motion to withdraw under an abuse of

discretion standard, looking to seven factors to determine whether the defendant

showed a “fair and just” reason. United States v. Graham, 466 F.3d 1234, 1238

(10th Cir. 2006). 1 Based on these factors, we hold the district court did not abuse

its discretion in denying Defendant’s motion, which was premised on his

mistaken assumption the court had denied his right to appeal.

      Defendant also argues the district court lacked jurisdiction over the offense.

      1
        The seven factors are: (1) whether the defendant has asserted his
innocence; (2) whether withdrawal would prejudice the government; (3) whether
the defendant delayed in filing his motion to withdraw, and if so, the reason for
the delay; (4) whether withdrawal would substantially inconvenience the court;
(5) whether close assistance of counsel was available to the defendant; (6)
whether the plea was knowing and voluntary; and (7) whether the withdrawal
would waste judicial resources. Graham, 466 F.3d at 1238-39.

                                         -7-
However, as appellate counsel correctly notes, Defendant has not articulated any

non-frivolous basis to challenge the district court’s jurisdiction.

      As to Defendant’s sentence, Defendant argues the district court promised

him a three-point reduction for acceptance of responsibility rather than the two-

point reduction he ultimately received. Pursuant to U.S.S.G. § 3E1.1, after

applying a two-level adjustment for acceptance of responsibility, a district court

may apply an additional acceptance-of-responsibility adjustment only upon the

government’s motion, or, if the government refuses to file a motion, if the district

court concludes “the refusal was (1) animated by an unconstitutional motive, or

(2) not rationally related to a legitimate government end.” United States v.

Moreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005) (quotation marks omitted).

Because the government did not file a § 3E1.1 motion and there is no evidence

that this refusal was improper, we have no authority to review this issue. See id.

Moreover, we note the record does not support Defendant’s contention that the

district court promised a three-point reduction. As to the sentence in general, we

see no error in the district court’s calculation of the applicable sentencing

guidelines range, and we see no basis by which Defendant could rebut the

presumption of reasonableness attached to his within-guidelines sentence. See

United States v. Thompson, 518 F.3d 832, 866-67 (10th Cir. 2008).

      Finally, Defendant argues he received ineffective assistance of counsel.

However, “the preferred avenue for challenging the effectiveness of counsel in a

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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.

      There are two other issues counsel’s Anders brief does not discuss. First,

Defendant includes in his multiple lengthy and disconnected submissions a

request to remand to the district court for “Brady violation[s]” that his counsel

allegedly caused by withholding evidence. (Def’s Supp. Br. at 2.) Defendant

argues in general he has not received certain discovery items and is therefore

disadvantaged. Defendant misunderstands the Brady v. Maryland, 373 U.S. 83

(1963), standard. “To establish a Brady violation, the defendant must prove that

the prosecution suppressed evidence, the evidence was favorable to the defense,

and the evidence was material.” United States v. Erickson, 561 F.3d 1150, 1163

(10th Cir. 2009). Defendant, though, alleges his counsel has withheld evidence.

Brady does not apply. Second, Defendant requests remand to the district court to

decide a motion to dismiss for newly discovered evidence he submitted to the

district court during the pendency of this appeal. Specifically, Defendant argues

he has new evidence the that Texas sheriff’s office knew the victim of the Texas

murder was alive after witnesses saw him with Defendant. We have reviewed the

submitted evidence and conclude no remand is necessary.

      Our thorough review of the record persuades us that Defendant can raise no

meritorious issue on appeal. We therefore GRANT counsel’s motion to withdraw

                                         -9-
and DISMISS the appeal. We DENY all other pending motions.

                                          Entered for the Court



                                          Monroe G. McKay
                                          Circuit Judge




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