                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit
                           FOR THE TENTH CIRCUIT
                       _________________________________                        June 5, 2017

                                                                            Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                       Clerk of Court
      Plaintiff - Appellee,

v.                                                           No. 16-7092
                                                  (D.C. No. 6:16-CR-00051-RAW-1)
IKE ALEXANDER,                                               (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

       Ike Alexander’s appointed counsel has submitted an Anders brief stating an appeal

in this case would present no non-frivolous issues. After a careful review of the record,

we agree. Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to

withdraw and dismiss the appeal.




       *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The 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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                  I.   BACKGROUND

                               A. Conviction and Sentence

       On July 13, 2016, Mr. Alexander pled guilty to a single count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence

Investigative Report (“PSR”) determined that he qualified for an enhanced sentence

under the Armed Career Criminal Act (“ACCA”) because he had at least three prior

convictions for “violent felonies” under the ACCA. Under the ACCA, a person who has

been convicted of being a felon in possession and who has three previous, separate

convictions for violent felonies or serious drug offenses, or both, shall be imprisoned not

less than 15 years. 18 U.S.C. § 924(e)(1).

       The PSR identified the following Oklahoma state convictions as Mr. Alexander’s

ACCA predicate offenses: (1) Assault with a Deadly Weapon and Shooting with Intent

to Kill; (2) Robbery with a Firearm; (3) Robbery With a Firearm, Assault with a

Dangerous Weapon, Shooting with Intent to Kill, and Kidnapping; (4) Assault and

Battery on a Correctional Officer; and (5) Attempted Robbery with a Firearm. Mr.

Alexander pled guilty to the first four offenses on October 18, 2000, and the fifth offense

on February 5, 2009. The PSR recommended a total offense level of 31 and a criminal

history category of VI, yielding an advisory range under the United States Sentencing

Guidelines (“Guidelines”) of 188 to 235 months. Because of Mr. Alexander’s previous

violent felonies, the ACCA mandated a minimum prison sentence of 15 years (180

months). Mr. Alexander did not object to the PSR.



                                             -2-
      At the sentencing hearing, the district court found the PSR had correctly

determined that Mr. Alexander qualified for an enhanced sentence under the ACCA. The

court sentenced Mr. Alexander to 188 months, above the required ACCA minimum but at

the low end of the applicable Guidelines range.

                                    B. Anders Brief

      Mr. Alexander appeals the district court’s sentence. His appointed counsel

filed a brief pursuant to Anders v. California, which provides that:

             [I]f counsel finds [the defendant’s] case to be wholly
             frivolous, after a conscientious examination of it, he
             should so advise the court and request permission to
             withdraw. That request must, however, be accompanied
             by a brief referring to anything in the record that might
             arguably support the appeal. . . . [T]he court—not
             counsel—then proceeds, after a full examination of all the
             proceedings, to decide whether the case is wholly
             frivolous. If it so finds it may grant counsel’s request to
             withdraw and dismiss the appeal . . . .

386 U.S. 738, 744 (1967).

      His counsel’s Anders brief identified one potential issue on appeal: whether

the district court erred in finding that the fourth predicate conviction—assault and

battery on a correctional officer—qualified as a violent felony under the ACCA.

Anders Br. at 8-9. But even this issue, counsel argues, is not meritorious. He seeks

our permission to withdraw.




                                          -3-
      Mr. Alexander submitted a pro se,1 handwritten response to the Anders brief

challenging whether certain of his offenses qualify as ACCA predicates and

attempting to raise an ineffective assistance of counsel claim. The Government also

filed a response.

                                  II. DISCUSSION

                                A. Standard of Review

      We review de novo a district court’s decision that a prior conviction counts as

a predicate offense for the purpose of imposing an ACCA sentence enhancement.

United States v. Johnson, 630 F.3d 970, 975 (10th Cir. 2010). When a defendant

does not object to the sentence enhancement below, we review for plain error.

United States v. Spring, 80 F.3d 1450, 1461 (10th Cir. 1996).

                              B. Counsel’s Anders Brief

      The only issue raised in counsel’s Anders brief is whether Mr. Alexander’s

conviction for assault and battery on a correctional officer under Oklahoma law

qualifies as a violent felony under the ACCA.2 Anders Br. at 8-9 (suggesting the


      1
        Because Mr. Alexander proceeds pro se, we construe his arguments liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
      2
          The ACCA defines the phrase “violent felony” to mean:

              any crime punishable by imprisonment for a term
              exceeding one year, . . . that—

                     (i) has as an element the use, attempted use, or
                     threatened use of physical force against the person
                     of another; or
                                                                       Continued . . .
                                         -4-
conviction is not a violent felony because it ‘“may be accomplished by a slight

touch’”) (quoting United States v. Mitchell, 653 F. App’x 639, 644 (10th Cir. 2016)

(unpublished)).

      Counsel did not object to the district court’s determination that his client’s

prior offenses are violent felonies. Whether Mr. Alexander was properly subject to

the ACCA, therefore, would be subject to plain error review on appeal. Spring, 80

F.3d at 1461.

      Even if the district court plainly erred in counting this offense as a violent

felony, however, the error would be harmless because Mr. Alexander would have

four remaining predicate convictions and would therefore still qualify for an ACCA-

enhanced sentence with one offense to spare. See United States v. Couchman, 329 F.

App’x, 836, 837-38 (10th Cir. 2009) (granting counsel’s motion to withdraw where

exclusion of two of the defendant’s ACCA predicate offenses still left three valid

predicates). Any challenge to the district court’s application of the ACCA would

thus be futile. See United States v. Esparza-Estrada, 252 F. App’x 880, 884-85 (10th

Cir. 2007) (granting counsel’s motion to withdraw when defendant’s appeal would

have been futile).




                     (ii) is burglary, arson, or extortion, [or] involves use
                     of explosives . . . .

18 U.S.C. § 924(e)(2)(B).


                                           -5-
                             C. Mr. Alexander’s Arguments

      Mr. Alexander raises four arguments disputing the application of the ACCA.

None can meet the plain error standard.

      First, Mr. Alexander questions how he could have more than two predicate

convictions when he was only sentenced twice—once in October 2000 and again in

February 2009. He acknowledges he was convicted of multiple charges in October

2000, but he argues these convictions should count as only one qualifying predicate

for ACCA purposes. This argument fails. Whether prior convictions constitute a

single criminal offense or more than one for purposes of the ACCA depends not on

the date of the convictions or the sentencing but on whether the crimes were

committed at different times. § 924(e)(1); United States v. Harris, 447 F.3d 1300,

1305 n.2 (10th Cir. 2006) (“Separateness under the ACCA turns on when and where

the crimes were committed, not when the convictions were entered.”). Mr.

Alexander committed each of his five predicate offenses on different days in different

locations against different victims. Even though judgment on four of the convictions

occurred on the same day in October 2000, they did not constitute a single offense for

ACCA purposes. The conviction for which he was sentenced in February 2009 then

provided a fifth, not a second, predicate offense.

      Second, Mr. Alexander contends he did not plead guilty to the first predicate

offense—shooting with the intent to kill his brother, Isaac Alexander—because

“[Isaac] has never been shot in his life[.]” Response to Anders Brief at 1. But the

factual basis for this offense is not relevant for our purposes as long as (1) Mr.

                                          -6-
Alexander was convicted of the offense, and (2) the offense is a qualifying ACCA

predicate. Regarding the first requirement, the PSR states that Mr. Alexander pled

guilty to shooting Isaac, who was struck by the bullet and wounded. Mr. Alexander

never objected to the PSR, and his contentions regarding the factual basis for the

conviction find no support in the record. Second, shooting with intent to kill under

Oklahoma law constitutes an ACCA qualifying predicate. See United States v.

McCalister, 314 F. App’x 110, 111-12 (10th Cir. 2008) (unpublished) (recognizing

that shooting with intent to kill is a “crime of violence” under the Guidelines); see

also United States v. Wray, 776 F.3d 1182, 1184-85 (10th Cir. 2015) (explaining that

we interpret “crime of violence” under the Guidelines and “violent felony” under the

ACCA interchangeably). Thus, it was not plainly erroneous for the district court to

count this conviction as an ACCA predicate. Even if the district court plainly erred

on this issue, the error would be harmless because Mr. Alexander would still have at

least three other qualifying predicates.

      Third, Mr. Alexander claims he is not subject to the ACCA because three of

his prior convictions occurred in 1999 when he was a juvenile. [Response to Anders

brief at 1.] This argument is meritless because Mr. Alexander was convicted and

sentenced as an adult for crimes punishable by imprisonment for a term exceeding

one year. Under the statute, these convictions count towards the ACCA

enhancement. See § 924(e)(2)(B) (stating that qualifying ACCA predicate conviction

includes a “violent felony,” which is any crime punishable for imprisonment for a

term exceeding one year); United States v. Cure, 996 F.2d 1136, 1139-40 (11th Cir.

                                           -7-
1993) (holding that prior conviction for crime committed when defendant was

under 17 satisfied ACCA’s requirements because defendant was adjudicated as an

adult under Florida law and sentenced for a term exceeding one year).

       Finally, Mr. Alexander’s Anders response suggests he may wish to raise an

ineffective assistance of counsel claim, but such claims “should be brought in

collateral proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc). When ineffectiveness claims are brought on

direct appeal, they “are presumptively dismissible, and virtually all will be

dismissed.” Galloway, 56 F.3d at 1240. This court “recognizes a narrow exception

to this principle only where the issue was raised before and ruled upon by the district

court and a sufficient factual record exists.” United States v. Battles, 745 F.3d 436,

457 (10th Cir. 2014). This case does not fall within that exception. Moreover, in

light of Galloway’s general rule that ineffective assistance claims be brought through a

motion under 28 U.S.C. § 2255 and not on direct appeal, this court has granted a defense

counsel’s motion to withdraw and dismissed an appeal based on an Anders brief even

when the defendant may have had an ineffective assistance claim. United States v.

Calderon, 428 F.3d 928, 931-32 (10th Cir. 2005) (granting counsel’s motion to

withdraw because even if defendant had a valid ineffectiveness claim, “this Court

would not address such a claim here”). We do the same here.

                                  III. CONCLUSION




                                           -8-
      Neither Mr. Alexander nor his counsel identify a non-frivolous issue for

review on appeal, and our independent review of the record did not uncover one

either. We therefore grant counsel’s motion to withdraw and dismiss this appeal.


                                          ENTERED FOR THE COURT,



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




                                        -9-
