                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       December 8, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-4160
          v.                                               (D. Utah)
 W A L TER LEE SPA N N ,                         (D.C. No. 2:03-CR-993-DB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before T AC HA , Chief Circuit Judge, A ND ER SO N, Circuit Judge, and
BRO RBY, Senior Circuit Judge.




      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). The case is

therefore ordered submitted without oral argument.

      Defendant-appellant W alter Lee Spann pled guilty to one count of

possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C.

§§ 5861(d) and 5871. Pursuant to a written plea agreement under Fed. R. Crim.


      *
       This order and judgment is not binding precedent except under the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 (eff.
Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
P. 11(c)(1)(C), Spann was sentenced to eighty-four months’ imprisonment,

followed by three years of supervised release. He appeals his sentence.

      Spann’s attorney, Robert Breeze, has filed an Anders brief and moved to

withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967). Spann has

filed a response, and the government has declined to file a brief. W e therefore

base our conclusion on counsel’s brief, Spann’s response, and our own careful

review of the record. For the reasons set forth below, we agree with M r. Breeze

that the record in this case provides no nonfrivolous basis for an appeal, and w e

therefore grant his motion to withdraw and dismiss this appeal.



                                 BACKGROUND

      Spann was originally charged with possession of a firearm by a convicted

felon and aiding and abetting, in violation of 18 U.S.C. § 922(g)(1) and (2). H e

was found guilty by a jury and sentenced to fifteen years’ imprisonment. Spann

appealed his conviction and, while the case was on appeal, the government

became aware of and conceded that a non-harmless constitutional error under

Brady v. M aryland, 373 U.S. 83 (1963) had occurred at Spann’s trial involving

the government’s failure to disclose the fact that a key prosecution witness had a

cooperation agreement with the government. Our court accordingly issued an

order vacating the district court’s judgment and remanding the case for further

proceedings.

                                         -2-
      The government then brought a superceding indictment against Spann,

charging him with one count of possession of an unregistered sawed-off shotgun,

in violation of 26 U.S.C. §§ 5861(d) and 5871. Spann then entered into a written

plea agreement in which he pled guilty and his sentence was stipulated pursuant

to Fed. R. Crim. P. 11(c)(1)(C) to be eighty-four months. 1 The district court

subsequently accepted the plea agreement and sentenced Spann to eighty-four

months’ imprisonment, in accordance with the plea agreement. This appeal

followed.



                                  D ISC USSIO N

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to:

      submit a brief to the client and the appellate court indicating any
      potential appealable issue based on the record. The client may then
      choose to submit arguments to the court. The [c]ourt must then
      conduct a full examination of the record to determine whether
      defendant’s claims are wholly frivolous. If the court concludes after
      such an examination that the appeal is frivolous, it may grant
      counsel’s motion to withdraw and may dismiss the appeal.



      1
       Under Fed. R. Crim. P. 11(c)(1)(C), a stipulated sentence “binds the court
once the court accepts the plea agreement.”

                                         -3-
Id. (citing Anders, 386 U.S. at 744). As indicated, Spann’s attorney has filed his

Anders brief, Spann has filed a response and the government has declined to file a

brief.

         W e agree with counsel that there is no nonfrivolous issue related to the

sentence imposed by the district court, which was exactly the sentence stipulated

in the plea agreement. Spann’s response is vague and inarticulate, but appears to

accuse his counsel of perjury and other unprofessional conduct, and asserts that a

sixty-month sentence is appropriate. He fails to articulate, however, any reason

why he should not be bound by the sentence to which he agreed. Our careful

review of the record fails to reveal any basis for challenging the sentence imposed

on Spann.



                                    C ON CLU SIO N

         For the foregoing reasons, counsel’s motion to withdraw is GRANTED and

this appeal is D ISM ISSED .

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




                                            -4-
