                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   October 17, 2017
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 16-7091
                                              (D.C. No. 6:16-CR-00043-RAW-1)
 DUSTIN KYLE HARVEY,                                     (E.D. Okla.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


      After examining defense counsel’s Anders brief 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 Dustin Kyle Harvey pled guilty to possessing a firearm after a

felony conviction, in violation of 18 U.S.C. §§ 922((g)(1), 924(a)(2), and 924(e),

and was sentenced to a total sentence of seventy-seven months of imprisonment.



      *
        This order and judgment is not binding precedent, except under the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.
Defendant filed a notice of appeal, and his appointed counsel then filed a brief

asserting that there were no non-frivolous issues to appeal and seeking to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967).

Defendant has not made any pro se filings to the court, and the government has

also declined to respond to counsel’s Anders brief. As the time for any

responsive filings has passed, we will now adjudicate the merits of this appeal.

      After conducting “a full examination of all the proceedings,” id. at 744, we

agree with counsel that Defendant has no non-frivolous grounds to raise in this

appeal. The only issue Defendant raised below that defense counsel identifies as

a potential issue for appeal is a challenge to the Sentencing Guideline calculations

used in determining his sentence. In the district court proceedings, Defendant

argued that because he received a nine-month sentence for his drug-related Texas

state jail felony, this prior conviction did not meet the definition of a controlled

substance offense under U.S.S.G. § 4B1.2(b) and should not have been relied

upon as such in his pre-sentencing report. In relevant part, the Guidelines define

a controlled substance offense as “an offense under federal or state law,

punishable by imprisonment for a term exceeding one year. . . .” U.S.S.G.

§ 4B1.2(b) (emphasis added). Yet, as the district court pointed out, this court has

held that the maximum possible sentence allowed under the statute is the

controlling factor, not the sentence actually imposed. See, e.g., United States v.

Plakio, 150 F. App’x 778, 779 (10th Cir. 2005) (unpublished); see also U.S.S.G.

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§ 4B1.2 n.1 (“‘Prior felony conviction’ means a prior adult federal or state

conviction for an offense punishable by death or imprisonment for a term

exceeding one year, . . . regardless of the actual sentence imposed.”).

Defendant’s state jail felony carries a maximum sentence of two years, and, thus,

qualifies as a controlled substance offense under U.S.S.G. § 4B1.2(b). Texas

Penal Code § 12.35(a). This argument is without merit.

      Counsel’s Anders brief identifies and evaluates a number of other potential

challenges Defendant could raise on appeal, ultimately concluding that none of

them have merit. We agree. The record reveals no meritorious appellate issues

regarding Defendant’s guilty plea. Though the magistrate judge failed to inform

Defendant about the possibility that the sentencing court could consider

departures under the Sentencing Guidelines or 18 U.S.C. § 3553(a), this variance

from the requirements of Federal Rule of Criminal Procedure 11 did not affect

Defendant’s substantial rights and should be disregarded as harmless error. See

Fed. R. Crim. P. 11(h); see also United States v. Vonn, 535 U.S. 55, 71 (2002).

Neither party requested a departure or § 3553(a)-based variance, and Defendant

received the minimum sentence under the Guidelines.

      The record likewise does not support a substantive reasonableness claim on

appeal. A sentence within the applicable guideline range is presumed reasonable.

United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). Counsel found

no mitigating circumstances in the record that would allow for a variance or

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departure under any of the § 3553(a) factors. Our review of the record also failed

to reveal any basis for Defendant to rebut the presumption of reasonableness

attached to his within-guidelines sentence.

      Because our review of the record persuades us that Defendant can raise no

meritorious issue on appeal, we GRANT counsel’s motion to withdraw and

DISMISS the appeal.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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