                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS May 10, 2011
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                         No. 10-3192
          v.                                   (D.C. No. 2:09-CR-20143-CM-2)
                                                         (D. Kansas)
 PAUL G. RAYFORD,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.



      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.

      On March 9, 2010, defendant and appellant Paul G. Rayford pled guilty to

one count of attempted bank robbery, in violation of 18 U.S.C. § 2113(a) and (2);

one count of carrying and using a firearm during and in relation to the attempted

      *
        This order and judgment is not binding precedent except under the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.
bank robbery, in violation of 18 U.S.C. § 924(c)and (2); and one count of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), (a)(2) and

(e). He was sentenced to concurrent 84-month terms of imprisonment for the

attempted bank robbery and felon-in-possession counts, followed by a consecutive

60-month sentence for the use-of-a-firearm count, for a total of 144 months’

imprisonment. Mr. Rayford filed a timely Notice of Appeal, and his appointed

counsel, David A. Kelly, filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), moving to withdraw as counsel. For the reasons set forth below, we

agree with Mr. Kelly that the record in this case provides no nonfrivolous basis

for an appeal, and we therefore grant his motion to withdraw and dismiss this

appeal.



                                 BACKGROUND

      On October 22, 2009, Mr. Rayford, along with his father, Kenneth Rayford,

and a man named Claude White, attempted to rob the Interstate Federal Savings

Bank in Kansas City, Kansas. Federal law enforcement personnel had been

conducting surveillance of the Rayfords and, based on intercepted telephone calls

obtained pursuant to a court-ordered Title III wiretap, they knew that the trio

were planning to rob the bank. The officers accordingly were already on site and

had directed the bank employees to lock the doors to the bank.




                                         -2-
      When Mr. Rayford and Mr. White tried to open the bank doors, they were

apprehended, along with Kenneth Rayford, who was sitting in a car a short

distance away. Mr. Rayford was wearing a bullet-proof vest when he was

arrested, and a semi-automatic pistol was discovered on the driver’s seat of the

car Mr. Rayford had driven to the bank. 1

      As indicated above, Mr. Rayford pled guilty on March 8, 2010, to the three

counts at issue. In preparation for sentencing under the advisory United States

Sentencing Commission, Guidelines Manual (2009) (“USSG”), the United States

Probation Office prepared a presentence report (“PSR”). The PSR calculated for

Mr. Rayford a total offense level of 23 and a criminal history category of V. One

of several reasons why Mr. Rayford’s criminal history score was high (besides his

extensive background of crime) was that he was on probation when he committed

the instant crimes. With a total offense level of 23 and a criminal history

category of V, the advisory Guidelines sentencing range for the attempted robbery

and felon-in-possession counts was 84 to 105 months. The advisory Guideline

sentence for the use-of-a-firearm count was 60 months, and it was required to be

served consecutively to the other imprisonment terms. See 18 U.S.C. § 924(c);

USSG §§5G1.2(a) and 2K2.4(b).



      1
       We have very recently affirmed the 168-month sentence of Kenneth
Rayford for the instant robbery, as well as two other completed armed bank
robberies. United States v. Rayford, No. 10-3291 (May 10, 2011).

                                            -3-
      Mr. Rayford filed objections to the PSR, challenging the PSR’s conclusion

that the 60-month sentence imposed for the violation of 18 U.S.C. § 924(c) (use-

of-a-firearm) must be imposed consecutively to the sentence for the other counts

of conviction. He argued that our circuit had held that the sentence for the

§ 924(c) violation needed to be served consecutively to other sentences only when

the other sentences were mandatory. The government and the court disagreed with

Mr. Rayford, arguing, quite correctly, that he had misread our cases. They

concluded that we have determined that § 924(c) requires a consecutive

mandatory minimum sentence regardless of whether the other crimes of conviction

(other than the § 924(c) charge) carry a mandatory minimum. 2 See United States

v. Wheeler, 230 F.3d 1194 (10th Cir. 2000); United States v. Bazile, 209 F.3d

1205 (10th Cir. 2000). The court accordingly sentenced Mr. Rayford to 144

months’ imprisonment.

      Mr. Rayford timely filed his notice of appeal challenging his sentence. As

indicated, his appointed counsel, Mr. Kelly, has moved to withdraw as counsel

pursuant to Anders. Mr. Rayford has filed a pro se half-page response to his

attorney’s Anders brief. The government has, in turn, filed a brief addressing the

issues Mr. Rayford raises pro se.

       2
        Mr. Rayford’s attorney suggests that the fact that the propriety of our case
law on this general issue is before the Supreme Court pending a decision allows
Mr. Rayford to argue that we should not affirm his sentence. That fact does not
convince us to disregard our case law. See Gould v. United States, No. 09-7073
(orally argued Oct. 4, 2010).

                                         -4-
                                   DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s 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.” Anders, 386

U.S. at 744. Counsel must submit to both the court and his client a “brief referring

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

defendant may then “raise any points that he chooses.” Id.

      The reviewing court must examine all the proceedings to determine whether

the appeal is frivolous. Id. If the court so finds, it may grant defense counsel’s

request to withdraw and dismiss the appeal. Id. “On the other hand, if it finds any

of the legal points arguable on their merits (and therefore not frivolous) [the

reviewing court] must, prior to decision, afford the indigent [defendant] the

assistance of counsel to argue the appeal.” Id.

      In this case, Mr. Rayford has submitted a short letter to the court in response

to his counsel’s Anders brief and motion to withdraw. In his letter, he asks us to

reverse his sentence on two grounds not previously raised. He argues that he

received extra, and unwarranted, criminal history points in connection with his two

prior drug trafficking convictions. More specifically, Mr. Rayford claims that,

because he was sentenced on the same day for the two convictions and because the

two convictions shared the same docket number, he should have received only two

criminal history points for them, rather than four. He also argues that points were

                                         -5-
erroneously added to his total offense level because he was on probation when he

committed the instant offenses, and that probation status no longer is grounds for

additional points.

      Mr. Rayford failed to argue these claimed errors below, so we can review

them only for plain error. United States v. Mike, 632 F.3d 686, 691 (10th Cir.

2011). To establish plain error, Mr. Rayford must show “(1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 691-92.

      Mr. Rayford’s arguments are easily addressed and provide no nonfrivolous

basis for an appeal. First, with regard to his claim about extra criminal history

points being improperly assigned, he is factually wrong. While he fails to identify

what prior drug trafficking crimes he is addressing, there are only two such prior

crimes for which he was assessed points. He was arrested for drug trafficking on

August 4, 1999, when an officer found 6.56 grams of cocaine in his car following

a traffic stop. On October 10, 2000, he pled guilty and was sentenced in Jackson

County, Missouri, to ten years’ imprisonment, under case number CR99-6058.

PSR ¶ 50, R. Vol. 3 at 11. In the other case, he was arrested on November 20,

1999, for selling crack cocaine in a controlled buy. On October 12, 2000, he was

convicted following a jury trial and sentenced again in Jackson County, Missouri,

to five years’ imprisonment, under case number 16CR1680. Id. ¶ 51, id. at 12.

The only common thread between the two cases is that both sentences were stated

                                          -6-
to run consecutively to each other, and in both cases the court granted Mr. Rayford

release from imprisonment on March 19, 2001.

      USSG §4A1.2(a)(2) determines whether sentences are counted separately or

as a single sentence under the advisory Guidelines:

             If the defendant has multiple prior sentences, determine
      whether those sentences are counted separately or as a single
      sentence. Prior sentences always are counted separately if the
      sentences were imposed for offenses that were separated by an
      intervening arrest (i.e., the defendant is arrested for the first offense
      prior to committing the second offense). If there is no intervening
      arrest, prior sentences are counted separately unless (A) the sentences
      resulted from offenses contained in the same charging instrument; or
      (B) the sentences were imposed on the same day. Count any prior
      sentence covered by (A) or (B) as a single sentence. . . .

      Thus, as the government points out, there are two possible scenarios. If the

sentences were imposed for offenses that were separated by an intervening arrest,

the sentences must be counted separately. If, however, there was no intervening

arrest, the prior sentences are counted separately unless the sentences resulted

from offenses contained in the same charging instrument or the sentences were

imposed on the same day. Mr. Rayford’s PSR shows he was arrested on separate

dates for the two drug incidents, but it does not say whether the second offense

was committed before or after the arrest for the first incident. But even if they

were not separated by an intervening arrest, the prior offenses should have been

counted as a single sentence if they were charged together or sentences for them

were imposed on the same day. The PSR indicates they had separate case numbers


                                          -7-
(and inferentially were not charged together) and they were not imposed on the

same day. Mr. Rayford has accordingly not demonstrated that there was an error

in the calculation of his criminal history points for his prior drug-related

convictions.

      Mr. Rayford also received two additional criminal history points under

USSG §4A1.1(d) because he committed the instant offenses while he was on

probation. He claims this is wrong, as it has been “brought to [his] attention” that

points would no longer be assessed if he was on probation when his current crime

of conviction occurred. Letter dated 1/13/2011. This is not so. The Guideline

provision (USSG § 4A1.1(d)) under which Mr. Rayford was assessed points

remains unchanged. In any event, he was sentenced under the 2009 version of the

Guidelines, and there is no dispute that, under that version, he was properly

assessed two points for committing the instant offenses while on probation. See

USSG § 4A1.1(d).

      We see no other grounds for reversing Mr. Rayford’s sentence. We review a

district court’s sentencing determinations for procedural and substantive

reasonableness, employing a deferential abuse-of-discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007). When a defendant is sentenced within a

properly-calculated Guidelines range, the sentence is “entitled to a rebuttable

presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006). As indicated above, the district court in this case properly

                                          -8-
calculated the applicable advisory sentencing range, so there is no procedural error

here. And we therefore presume the sentence to be substantively reasonable. The

court considered the 3553(a) factors and explained why it assessed the sentence it

did.

       We have carefully reviewed the record, and it shows no error in the court’s

determination of the facts or calculation of the advisory Guideline range, or

anything else which would overcome the presumption that Mr. Rayford’s sentence

is substantively reasonable. Therefore, any argument that the district court’s

sentence was unreasonable would be frivolous.



                                  CONCLUSION

       For the foregoing reasons, we GRANT defense counsel’s motion to

withdraw and DISMISS this matter.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                         -9-
