                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALS June 30, 2014
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 13-5152
                                              (D.Ct. No. 4:13-CR-00105-JED-1)
 LETHAN CRAIG BIAS,                                      (N.D. Okla.)

          Defendant - Appellant.
                        ______________________________

                              ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.

      Appellant Lethan Craig Bias pled guilty to one count of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The


      *
         This order and judgment is not binding precedent except under the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.
district court sentenced him to the statutory minimum mandatory sentence of 180

months imprisonment and five years supervised release under the Armed Career

Criminal Act, pursuant to 18 U.S.C. § 924(e). While Mr. Bias appeals his

sentence, his attorney has filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set

forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal.

                       I. Factual and Procedural Background

      On or about May 1, 2013, Mr. Bias illegally possessed two pistols after

having previously been convicted three times for felony burglary, including

burglary of a habitation in Texas, residential burglary in Arkansas, and kidnaping

and burglary in Oklahoma. Both in his plea agreement and at the plea hearing,

Mr. Bias admitted he possessed the firearms afer having been convicted for the

three felony burglaries listed in the indictment, including “burglary of [a]

habitation” in Texas, “residential burglary” in Arkansas, and second-degree

burglary in Oklahoma. During the plea colloquy, the district court questioned and

confirmed Mr. Bias made his plea voluntarily and knowingly and understood the

constitutional rights he was waiving as well as the nature of the charge against

him and the possible penalties. These penalties included application of the

Armed Career Criminal Act in conjunction with 18 U.S.C. § 924(e), under which,

the district court explained, he faced a substantially-enhanced, mandatory

sentence of fifteen years in prison for his three prior burglary convictions should

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they qualify as violent crimes. In addition, both parties discussed the application

of the fifteen-year mandatory minimum sentence under the Act, and in so doing,

Mr. Bias’s counsel asked that it not be applied because Mr. Bias was only

seventeen, or a juvenile, when he committed the Texas burglary. In pleading

guilty to the firearms charge, Mr. Bias and his counsel indicated their intent to

challenge the underlying facts of his burglary convictions as violent crimes for

the purpose of their application to his sentence.

      Prior to sentencing, Mr. Bias filed a letter with the court, again claiming he

committed nonviolent crimes, relaying his version of the facts for each incident,

and pointing out he was only seventeen when he committed the first burglary

twenty-four years earlier. His counsel also filed a sentencing memorandum,

objecting to the Armed Career Criminal Act enhancement recommended in the

presentence report, referring to Mr. Bias’s insistence he did not commit or plead

guilty to crimes of violence and the possibility that at least one of the burglary

statutes might be too broadly-worded to use for enhancing Mr. Bias’s sentence.

The probation officer responded in an addendum to the presentence report, noting

two of the statutes clearly identified the crimes as burglaries of habitations and

acknowledging that while the Oklahoma burglary statute was divisible,

documentation could be used to clarify which part of the statute applied,

including the charging document against Mr. Bias which showed he was

convicted of “breaking and entering into a house ... with intent ... to steal.”

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      At the sentencing hearing, Mr. Bias’s counsel confirmed Mr. Bias was not

contesting the calculation of his sentence and acknowledged the district court

could not look at the underlying facts of the conviction, as contained in Mr.

Bias’s letter, but could only rely on documentation supporting the burglaries to

determine if they were violent crimes should the burglary statutes be overly broad

and divisible. After carefully reviewing and expressly addressing each of the

three burglary convictions, including the statutes on which Mr. Bias was

convicted and the underlying documentation, if applicable, the district court

determined each met the requisite definition of burglary of a habitation to

constitute a violent crime for the purpose of sentencing Mr. Bias under the Act.

Accordingly, it sentenced him to the statutory minimum sentence of 180 months

in prison, followed by five years supervised release.

                                   II. Discussion

      After Mr. Bias filed a notice of appeal, his appellate counsel filed an

Anders motion and appeal brief, explaining a review of the record revealed no

nonfrivolous issues to appeal in this case and moving for an order permitting his

withdrawal as counsel. See Anders, 386 U.S. at 744. In support, his counsel

notes the district court complied with the Rule 11 requirements during the plea

hearing and Mr. Bias voluntarily entered a plea of guilty and was aware of the

penalties against him, including a sentence based on the statutory mandatory

minimum of fifteen years under the Armed Career Criminal Act. With respect to

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the Act’s enhancement, he points out Mr. Bias admitted being convicted of the

three prior burglaries and they qualify as “violent crimes,” either as charged

and/or from the underlying documentation, pursuant to the district court’s

application of the categorical, or modified categorical, approach. In support, he

points out Mr. Bias: 1) pled guilty in Texas to burglary of a building under Texas

Penal Code Annotated § 30.02(a)(3); 2) pled guilty in Arkansas under Arkansas

Code Annotated § 5-39-201, where either divisible subsection qualifies as

burglary of a habitation; and 3) pled nolo contendere in Oklahoma to burglary

under 21 Oklahoma Statutes Annotated § 1435, which has a divisible definition,

but a charging document shows Mr. Bias committed a crime of violence “by

breaking and entering into a house ... in which property of value was contained,

by door, with intent to commit to steal multiple items.” As a result, counsel

acknowledges all three burglaries of a habitation qualify as predicate violent

felonies under the Act, and therefore, the district court correctly sentenced Mr.

Bias to the 180-month statutory minimum. 1 He also submits neither Mr. Bias’s

      1
         Section 924(e)(1) states that when a person violates § 922(g) for being a
felon in possession of a firearm and has three previous convictions for a violent
felony committed on different occasions, that person shall be imprisoned for not
less than fifteen years. See 18 U.S.C. § 924(e)(1). It further defines a “violent
felony” as including a “burglary.” See 18 U.S.C. § 924(e)(2)(B)(ii). Under
Guidelines § 2L1.2, application note 1, a “crime of violence” is defined to include
federal, state, or local “burglary of a dwelling,” see U.S.S.G. § 2L1.2, cmt.
n.1(B)(iii), and we define “dwelling” as including “any enclosed space used or
intended for use as a human habitation.” United States v. Rivera-Oros, 590 F.3d
1123, 1132 (10th Cir. 2009) (internal quotation marks omitted). The Guidelines
                                                                       (continued...)

                                         -5-
age at the time of his Texas conviction nor the age of that conviction are relevant

given the Act expressly includes an act of juvenile delinquency involving a

violent felony 2 and places no time limit on the application of a qualifying

predicate conviction, as explained in United States v. Lujan, 9 F.3d 890, 893

(10th Cir. 1993) (relying on U.S.S.G. § 4B1.4(a) and cmt. n.1). As a result,

counsel contends no nonfrivolous issues exist for an appeal.

      Pursuant to Anders, this court gave Mr. Bias an opportunity to respond to

his counsel’s Anders brief. See 386 U.S. at 744. Mr. Bias filed a response, again

explaining he was only seventeen when he committed the Texas burglary and

offering his version of the underlying facts of his burglary convictions. The

government filed a notice of its intent not to file an answer brief in this appeal.

      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. Without reiteration here, we agree with Mr.

Bias’s counsel’s well-articulated analysis of the record and applicable law, and

his conclusion no issues of merit exist warranting an appeal. As to Mr. Bias’s pro

se arguments, his counsel competently and correctly explained why his age and

      1
        (...continued)
and other sources of common law generally recognize burglary of a dwelling as a
“crime of violence” due to the increased possibility of the burglar confronting the
resident, resulting in substantial risk of force being used and causing an increased
risk of physical and psychological injury. Id. at 1130-31.
      2
        Specifically, a “violent felon” includes a person who committed “an act
of juvenile delinquency involving a violent felony.” See 18 U.S.C.
§ 924(e)(2)(C).

                                         -6-
the age of his Texas conviction do not affect the application of the Armed Career

Criminal Act to his sentence. As to his version of the underlying facts of his

prior burglary convictions, neither our nor the district court’s review may involve

“a subjective inquiry into the facts of the case.” See United States v. Charles,

576 F.3d 1060, 1067 (10th Cir. 2009). Instead, we are limited to examining only

the statutes, and if any one of them is divisible, only then may we apply the

categorical or modified categorical approach. See Descamps v. United States, ___

U.S. ___, 133 S. Ct. 2276, 2292-93 (2013). We then proceed to examine the

underlying documents such as the charging papers, jury instructions, formal

rulings of law, and findings of fact, or the facts as presented in a written plea

agreement or findings of fact adopted by the defendant in entering a plea. See

Shepard v. United States, 544 U.S. 13, 20 (2005); Taylor v. United States, 495

U.S. 575, 602 (1990). Here, the district court correctly declined to consider Mr.

Bias’s version of the underlying facts of his burglary conviction and, where

appropriate, relied on either the language of the charging statute itself or the

underlying documentation. Our review establishes nothing in those statutes or

underlying documentation, where applied, which supports Mr. Bias’s appeal.

Instead, all three burglaries were of a habitation and qualify as crimes of violence

for the purpose of applying the Armed Career Criminal Act. Thus, our review

establishes no nonfrivolous basis for challenging the conviction or sentence

imposed.

                                          -7-
                              III. Conclusion

     For these reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.



                                  Entered by the Court:

                                  WADE BRORBY
                                  United States Circuit Judge




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