                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 26, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-5202
 v.                                          (D.Ct. No. 4:12-CR-00085-GKF-1)
                                                        (N.D. Okla.)
 MATTHEW DAVID SLINKARD,

          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 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.

      A jury convicted Appellant Matthew David Slinkard of one count of

distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and


      *
         This order and judgment is not binding precedent except under the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.
(b)(1) and one count of possession and attempted possession of child pornography

in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court sentenced

him to 264 months imprisonment for the distribution count and 240 months

imprisonment on the possession count, to run concurrently. While Mr. Slinkard

appeals his convictions and sentences, his attorney has filed an Anders brief and a

request to withdraw as counsel, which we treat as 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. Background

      After a jury convicted Mr. Slinkard on both child pornography counts, a

probation officer prepared a presentence report, calculating his sentences under

the applicable 2011 United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”). The probation officer set his base offense level at 22 under U.S.S.G.

§ 2G2.2(a)(2), based on his conviction in violation of 18 U.S.C. § 2252(a)(2), 1

and added several levels of enhancements 2 for a total offense level of 37, which,

      1
        Pursuant to U.S.S.G. § 3D1.3(b), the two counts on which Mr. Slinkard
was convicted were grouped together, and the base level for the distribution of
child pornography count, which was the highest level, was used to calculate his
advisory Guidelines range.
      2
        These enhancements included two levels under § 2G2.2(b)(2) for
possessing pornographic material involving a prepubescent minor; two levels
under § 2G2.2(b)(3)(F) for distributing pornographic material; four levels under
§ 2G2.2(b)(4) because his offense involved portrayals of sadistic or masochistic
conduct or other depictions of violence; two levels under § 2G2.2(b)(6) because
                                                                     (continued...)

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together with his criminal history category of II, resulted in an advisory

Guidelines range of 235 to 293 months imprisonment. The probation officer also

noted Mr. Slinkard’s conviction for distribution of child pornography carried a

minimum sentence of fifteen years and maximum sentence of not more than forty

years, and his conviction for possession of child pornography carried a minimum

sentence of ten years and maximum sentence of not more than twenty years.

While Mr. Slinkard did not object to the presentence report or the calculation of

his sentences, he filed a sentencing memorandum, requesting a downward

variance under 18 U.S.C. § 3553(a) for imposition of 180-month (fifteen-year)

sentences. 3 In turn, the government filed a motion for an upward variance,

requesting the statutory maximum sentence of forty years imprisonment on his




      2
       (...continued)
he used a computer for the receipt, distribution, and possession of pornography;
and five levels under § 2G2.2(b)(7)(D) because he possessed 600 or more images.
      3
         Mr. Slinkard based his request for a downward variance, in part, on
grounds: (1) he was not involved in the actual production of child pornography
and did not pay for the pornographic materials so that a lesser sentence would
promote respect for the law, provide just punishment, and reflect the seriousness
of his offense; (2) such a sentence would be sufficient to deter him from future
crimes while still protecting the public; (3) a lesser sentence would be sufficient
for him to receive needed mental health care and other correctional treatment; and
(4) such a sentence would be sufficient, but not greater than necessary, to comply
with the purposes of criminal punishment. He also pointed to cases in which
defendants convicted for actual sexual exploitation received fifteen years or less
imprisonment.

                                         -3-
distribution of child pornography conviction. 4

      At the sentencing hearing, Mr. Slinkard did not object to the calculation of

his sentences or request a departure but renewed his arguments for below-

Guidelines-range sentences. After hearing the parties’ variant sentencing

arguments and Mr. Slinkard’s allocution, the district court denied both parties’

motions for variant sentences. In so doing, the district court acknowledged that

143 months imprisonment is the national average sentence in child pornography

cases involving a criminal history category of II; the Guidelines sentence in this

case represented a sentence approximately forty percent higher than the average

sentence imposed; and Mr. Slinkard’s advisory Guidelines range of 235 to 293

months imprisonment was significant and would result in him being incarcerated

for a large portion of his remaining life. It also noted he had never received

treatment for his sexual perversions or addictions to child pornography.

Nevertheless, the district court pointed out: (1) the images and videos possessed

and distributed by him in the instant offenses were “egregious and perverted,” and

(2) Mr. Slinkard’s prior conviction for sexual abuse of a three-year-old girl in a

      4
         The government argued such a sentence was “the only way to protect the
public” from Mr. Slinkard based, in part, on: (1) his criminal history, which it
pointed out included a prior conviction for molesting a three-year-old child who
he supervised in a church nursery; and (2) the nature of his offense and personal
characteristics, including his admission he downloaded child pornography of
infants and children under the age of two; masturbated to images of children;
avoids encountering children to prevent being tempted; and has an unquenchable
sexual appetite for children, even after serving a five-year sentence for molesting
a three-year-old child.

                                         -4-
church nursery involved lewd molestation of that child and represented extremely

dangerous and depraved conduct with the capacity to produce lifetime victims.

      After denying the parties’ motions for variant sentencing, the district court

determined sentences within the advisory Guidelines would sufficiently

accomplish the purposes of 18 U.S.C. § 3553(a) and, in so doing, expressly stated

it had considered the nature and circumstances of Mr. Slinkard’s instant offenses;

his prior criminal conduct; his personal history and characteristics; and the need

to protect the public, afford adequate deterrents for future criminal conduct, and

provide treatment, including sex offender treatment. It also stated its belief that

within-Guidelines-range sentencing would reflect the seriousness of the offense,

promote respect for the law, provide just punishment, allow for correctional

treatment in the most efficient manner, protect the public from further crimes, and

provide deterrence. In discussing the § 3553(a) sentencing factors, the district

court stated it had considered not only Mr. Slinkard’s lewd molestation of a three-

year-old child but the fact he “possessed and distributed 1,298 images and 31

videos of prepubescent children forced to engage in oral, vaginal and anal sex

with adults, as well as depictions of child bondage and rape.” It then sentenced

Mr. Slinkard to concurrent sentences of 264 months imprisonment for the

distribution of child pornography count and 240 months imprisonment for the

possession of child pornography count.

      After Mr. Slinkard filed a timely notice of appeal, his counsel filed an

                                         -5-
Anders brief, explaining a careful review of the record and applicable law

revealed no legally nonfrivolous issues for appeal in this case and requesting an

order allowing his withdrawal as Mr. Slinkard’s counsel. See Anders, 386 U.S. at

744. In support of his Anders filing, counsel points out Mr. Slinkard’s sentences

are properly calculated and substantively reasonable, given the district court

expressly considered the requisite § 3553(a) factors before imposing within-

Guidelines sentences.

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

to his counsel’s Anders brief. See 386 U.S. at 744. Mr. Slinkard filed a one-page

response, claiming ineffective assistance of counsel based on his counsel’s

representation of him during the trial and at sentencing. The government opposes

the appeal, acknowledging Mr. Slinkard’s counsel correctly concluded no

nonfrivolous issues exist for the purpose of contesting his sentences and arguing

Mr. Slinkard’s response based on ineffective assistance of counsel should be

dismissed and asserted in a collateral proceeding rather than on direct appeal.

                                   II. Discussion

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

before us. See 386 U.S. at 744. We decline to review Mr. Slinkard’s ineffective

assistance of counsel claim on which he challenges his convictions as we have

long held such claims should be brought in collateral proceedings and not on

direct appeal. See United States v. Calderon, 428 F.3d 928, 931 (10th Cir. 2005).

                                         -6-
Not only is his ineffective assistance claim inadequately developed in this appeal,

but such a claim should be presented to the district court in a collateral

proceeding for the benefit of its views on the matter. See United States v.

Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005).

      Turning to Mr. Slinkard’s sentences, we review them for reasonableness as

guided by the factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437

F.3d 1050, 1053-55 (10th Cir. 2006) (per curiam). Having made such a review,

we find no nonfrivolous basis for challenging the sentences imposed. The record

supports the district court’s calculation of his advisory Guidelines range, and

because Mr. Slinkard’s sentences are within that range, they are entitled to a

rebuttable presumption of reasonableness. See id. Mr. Slinkard has failed to

rebut this presumption with any nonfrivolous reason warranting lower sentences,

including the requisite showing that his sentences are substantively unreasonable.

Id.

                                   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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