                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                        August 19, 2005
                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                         PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-1411
          v.                                        District of Colorado
 CHARLES EDWARD RAIFSNIDER,                       (D.C. No. 03-CR-403-B)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Charles Edward Raifsnider pled guilty to armed bank robbery, possession

of a firearm during the commission of a crime of violence, and possession of a

firearm by a previously convicted felon. On appeal, Mr. Raifsnider’s counsel



      *
         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). This case is
therefore submitted without oral argument.    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
filed a motion to withdraw pursuant to the Supreme Court’s decision in Anders v.

California, 386 U.S. 738 (1967). For the reasons set out below, we grant

counsel’s motion to withdraw and dismiss the appeal.

                      Factual and Procedural Background

      On June 3, 2003, a Bank One in Thornton, Colorado was robbed by a white

male with a gun. On June 12, 2003, a Bank One in Highlands Ranch, Colorado

was robbed, again by a white male brandishing a gun. Mr. Raifsnider, suspected

of other armed robberies, was taken into custody in July. He admitted to both

Bank One robberies. He pled guilty to armed bank robbery under 18 U.S.C. §

2113(a) and (d), possession of a firearm during the commission of a crime of

violence under 18 U.S.C.§ 924(c), and felon in possession of a firearm under 18

U.S.C. § 922(g)(1). For the armed bank robbery and felon in possession counts,

the pre-sentence report (“PSR”) recommended an adjusted offense level of 26 and

a three-point reduction for acceptance of responsibility, for a total offense level

of 23. The PSR also calculated eight criminal history points, placing Mr.

Raifsnider in criminal history category IV. This resulted in a recommended

Guidelines range of 70 to 87 months. The district court sentenced Mr. Raifsnider

to 70 months. For possessing a firearm during the commission of a crime of

violence, the district court sentenced Mr. Raifsnider to an additional 60 months,

bringing the total sentence to 130 months. He also received five years of


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supervised release. During the sentencing hearing, Mr. Raifsnider objected to the

calculation of his criminal history score.

      On appeal, Mr. Raifsnider’s counsel requested to withdraw from Mr.

Raifsnider’s case pursuant to Anders, stating that after a conscientious

examination of the record, he was “unable to find any arguable support for [Mr.

Raifsnider’s] requested appeal.” Brief of Appellant’s Counsel at 11. Counsel

furnished a copy to Mr. Raifsnider, who responded with a letter requesting

appointment of a new attorney because his criminal history had been

miscalculated.

                                Standard of Review

      Anders holds that if counsel finds his client’s appeal to be wholly frivolous

upon conscientious examination, he may advise the court and request permission

to withdraw. 386 U.S. at 744. The request must “be accompanied by a brief

referring to anything in the record that might arguably support the appeal.” Id.

The defendant must receive a copy of the brief and be given time to raise any

points he chooses. Id. The court then fully examines the record and decides

whether the case is wholly frivolous. Id. If it so finds, the court may grant

counsel’s request to withdraw and dismiss the appeal. Id.

      We review the district court’s factual findings supporting Mr. Raifsnider’s

criminal history score for clear error. United States v. Torres, 53 F.3d 1129, 1142


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(10th Cir. 1995). A finding of fact is clearly erroneous “only if it is without

factual support in the record, or if after reviewing all the evidence we are left

with the definite and firm conviction that a mistake has been made.” United

States v. Yates, 58 F.3d 542, 549 (10th Cir. 1995) (internal quotations omitted).

                                     Discussion

      Mr. Raifsnider claims that the district court erroneously calculated his

criminal history score because (1) it added two points for a crime for which he

claims he served less than sixty days and (2) it added one point for a misdemeanor

he committed more than five years ago when he was seventeen years old. We find

that these claims do not amount to a clearly erroneous calculation of Mr.

Raifsnider’s criminal history.

      First, Mr. Raifsnider claims that two points should not be added to his

criminal history score because he served less than sixty days for a misdemeanor

assault in 1997. However, the probation officer submitted evidence that Mr.

Raifsnider was not released early from that conviction. Under the Guidelines, if a

defendant was previously convicted and sentenced to at least sixty days, two

points are added to his criminal history score. See U.S. Sentencing Guidelines

Manual § 4A1.1(b) (2003). If the sentence was less than sixty days, one point is

added. Id. § 4A1.1(c). The government has the burden of proving a prior

conviction by a preponderance of the evidence. See United States v. Kirk, 894


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F.2d 1162, 1164 (10th Cir. 1990). We find the government met its burden of

proving that Mr. Raifsnider served at least sixty days for the 1997 conviction.

First, we have held that “[a]s an Officer of the Court, the Probation Officer may

be considered as being a reliable source.” United States v. Hershberger, 962 F.2d

1548, 1555 (10th Cir. 1992). In response to Mr. Raifsnider’s objections, the

probation officer submitted court records verifying Mr. Raifsnider’s sixty-day

sentence in 1997. Furthermore, during the sentencing hearing, Mr. Raifsnider’s

counsel conceded that although his client believed otherwise, the probation

officer “checked with the Sarasota, Florida, authorities, jail, and their records

indicate he was not released on bond.” R. Vol. II at 3. Counsel further stated

that he “trust[ed] [the probation officer’s] adjustment.” Id. Given the conflicting

evidence—Mr. Raifsnider’s uncorroborated recollection of how much time he

served for a Florida misdemeanor seven years earlier, and the probation officer’s

documented position that he had served at least sixty days—we cannot say that the

district court clearly erred in resolving the factual dispute against Mr. Raifsnider

and adding two criminal history points.

      Second, Mr. Raifsnider contests the addition of one criminal history point

for a 1995 conviction as an adult because he committed the crime when he was

actually seventeen. We agree with Mr. Raifsnider that the district court

erroneously added one point for this conviction. The record shows that Mr.


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Raifsnider was born in 1978 and committed the crime when he was seventeen.

Confusion arises from the fact that he was charged as an adult and his date of

birth was listed as 1977, a fact which he apparently did not contest at the time of

the conviction. However, under U.S.S.G. § 4A1.2(d)(2)(B), offenses committed

when the defendant was under the age of eighteen and served less than sixty days

are given one criminal history point “for each adult or juvenile sentence imposed

within five years of the defendant’s commencement of the instant offense.” See

U.S. Sentencing Guidelines Manual § 4A1.2(d)(2)(B) (2003). Because Mr.

Raifsnider was convicted of the misdemeanor more than five years ago (1995),

served only four days, and was under the age of eighteen, the district court

erroneously added a point to his criminal history score.

      However, this error was harmless. According Federal Rule of Criminal

Procedure 32, “at sentencing, the court . . . must, for any disputed portion of the

presentence report . . . rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).

In this case, the district court correctly found that the controverted matter, the

extra point, did not “make[] a difference in the overall criminal history level,

because . . . it would . . . still be a Level IV.” R. Vol. II at 3. That is, regardless

of whether Mr. Raifsnider has seven or eight criminal history points, he still falls


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within criminal history category IV. Thus, although the district court erred in

applying the additional point to Mr. Raifsnider’s criminal history score, it did not

affect his ultimate sentence and was therefore harmless. See United States v.

Jeppeson, 333 F.3d 1180, 1182 n. 2 (10th Cir. 2003) (holding that an error not

resulting in a different Guidelines range was harmless).

      After carefully reviewing the record, we hold that Mr. Raifsnider has no

non-frivolous issues to appeal. Counsel may withdraw from Mr. Raifsnider’s

case, and we DISMISS the appeal.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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