                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      September 1, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-8083
v.                                                 (District of Wyoming)
                                                (D.C. No. 03-CR-260-03-D)
LANCE D. THORMAHLEN,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist 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 Lance Douglas Thormahlen was traveling ninety-four

miles per hour on a motorcycle when he lost control and crashed on Interstate 25


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
in Converse County, Wyoming. Thormahlen was taken to the hospital, where he

underwent surgery for injuries sustained in the accident. At the crash scene,

police officers located and seized sixty-nine grams of crystal methamphetamine, a

small amount of marijuana, and $3500 in cash. In a subsequent consensual search

of Thormahlen’s apartment, officers seized sixteen additional grams of

methamphetamine, digital scales, drug paraphernalia, approximately $1800 in

cash, and a loaded .45 caliber semiautomatic pistol. Thormahlen was a previously

convicted felon by virtue of a 1990 conviction for assault with a deadly weapon in

California.

      Thormahlen pleaded guilty to possession of a firearm by a convicted felon

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and § 846.

In his written plea agreement, Thormahlen agreed to fully and truthfully cooperate

with the government. The government in exchange agreed to dismiss some of the

charges in the indictment and, if it determined in its sole discretion that

Thormahlen did in fact fully cooperate, to file a motion for a downward departure

in accordance with § 5K1.1 of the United States Sentencing Guidelines and 18

U.S.C. § 3553(e).

      At sentencing, the government informed the court that Thormahlen had

been “less than candid” with law enforcement about his involvement with drugs,


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and that he “offered no value . . . in terms of his potential as a witness.” The

government also cited letters written by Thormahlen asking others to make

statements to the effect that he was not involved in the drug conspiracy. 1 For

these reasons, the government asked the court “not to consider anything regarding

. . . the drug information” in granting a downward departure. On the other hand,

the government acknowledged that Thormahlen had provided accurate

information in a Wyoming homicide case and had ultimately testified for the

prosecution in that case. The government therefore recommended a two-level

downward departure based solely on Thormahlen’s assistance in the homicide

case.

        Thormahlen argued at sentencing for a greater departure based on his

assistance both in the drug case and the Wyoming homicide prosecution. The

district court, crediting the government’s representations regarding Thormahlen’s

lack of assistance in the drug case, granted only the two levels requested by the

government. After the two-level departure, Thormahlen’s offense level was

twenty-eight. With a criminal history category of III, his sentencing range




      These letters caused the probation office to recommend a Guidelines
        1

enhancement for obstruction of justice.

                                          -3-
became 97 to 121 months. The court sentenced Thormahlen to ninety-seven

months, the low end of the Guidelines range. 2

      Without notice to his counsel, Thormahlen filed a timely pro se notice of

appeal. Thormahlen’s counsel then filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and moved to withdraw. Anders holds that counsel, finding

a client’s appeal to be wholly frivolous upon conscientious examination, may

advise the court and request permission to withdraw. Id. at 744. The request

must “be accompanied by a brief referring to anything in the record that might

arguably support the appeal.” Id. The defendant must receive a copy of the brief

and be given time to raise any points he chooses. Id. This court must then fully

examine the record and decide whether the appeal is wholly frivolous. Id. If it so

finds, the court may grant counsel’s request to withdraw and dismiss the appeal.

Id.

      This court permitted Thormahlen to respond to his counsel’s Anders brief,

but no such response was filed. In his notice of appeal, Thormahlen advances two

potential issues that he believes give him grounds to appeal. First, he contends

that he should have been granted more than a two-level downward departure for

his assistance to the government. Second, he contends that the prosecution’s




      Pursuant to the government’s 18 U.S.C. § 3553(e) motion, this sentence
      2

was below the statutory minimum sentence of 120 months.

                                        -4-
failure to move for a greater downward departure was a form of vindictive

prosecution. Upon review of the parties’ arguments and the entire record on

appeal, we find no merit in Thormahlen’s contentions and agree with his counsel

that there are no non-frivolous appealable issues in this case. 3

      Thormahlen’s first argument is beyond this court’s jurisdiction to review.

The record indicates that the district court acknowledged its discretionary

authority to depart downward, and noted that in the past it had departed more than

the amount requested by the government. Nevertheless, the district court

exercised its discretion in limiting its departure to two levels. The discretionary

decision of a district court in choosing the degree of a downward departure is

unreviewable on appeal. United States v. Bromberg, 933 F.2d 895, 896-97 (10th

Cir. 1991). As noted by this court in Bromberg, review of the degree of the

district court’s departure would be inconsistent “with Congress’ intent to avoid

unnecessary appeals by limiting review of upward departures to defendants and

downward departures to the Government.” Id. at 897. 4

      3
       Neither Thormahlen nor his counsel identify the Supreme Court’s recent
decision in United States v. Booker, 125 S. Ct. 738 (2005), as arguably supporting
an appeal. We have nevertheless reviewed the record and determined that an
appeal premised on Booker would be without merit.
      4
        Thormahlen alleges in his pro se notice of appeal that he was promised “by
everyone” a least a five-level downward departure. The record belies this
contention. Thormahlen’s written plea agreement states that the United States
agreed to recommend a downward departure only if it determined, “in its sole
discretion, that the Defendant has fully, completely, and truthfully cooperated

                                          -5-
      Thormahlen’s second argument, that the government’s two-level

recommendation was the result of a vindictive prosecution, was never argued in

the district court and is therefore waived. Thormahlen alleges in his notice of

appeal that a Drug Enforcement Administration agent told him that “he would do

everything in his power to make sure [Thormahlen] spent at least [ten] years in

Federal Prison.” Thormahlen speculates that this was the reason why he only

received a two-level downward departure. In alleging vindictive prosecution, the

defendant has the burden to establish that prosecutorial decisions were made on

the basis of the defendant’s exercise of a specific legal right. United States v.

Carter, 130 F.3d 1432, 1443 (10th Cir. 1997). To meet this burden, “the

defendant must prove either (1) actual vindictiveness, or (2) a reasonable

likelihood of vindictiveness which then raises a presumption of vindictiveness.”

Id. (quotation omitted). Vindictive prosecution claims turn on the specific facts

and circumstances present in each case. See United States v. Raymer, 941 F.2d



with the United States.” The agreement further acknowledges that the factors
influencing the degree of departure “are impossible to determine at this time,” and
that “the court should not sentence the Defendant, nor can the Government make
a recommendation to the court concerning the Defendant’s assistance to
authorities, until the completion of the investigation and/or prosecution of other
persons who may be involved with the Defendant in criminal activity.” At his
change of plea hearing, Thormahlen stated that he had read and understood these
terms, and that no promises had been made to induce him to sign the agreement.
There is no contrary evidence in the record indicating that Thormahlen was
promised a five-level reduction even if the district court found he did not fully
cooperate with the government.

                                          -6-
1031, 1039 (10th Cir. 1991). Because Thormahlen did not raise his

vindictiveness prosecution claim in the district court, our review is only for plain

error. United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994). Factual

disputes, however, do not rise to the level of plain error. Id. By failing to raise

this argument at sentencing, Thormahlen has waived the issue on appeal.

      Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the

appeal.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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