                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 21 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.
                                                       No. 03-2026
                                                 (D.C. No. CR-01-43-MV)
 PAMELA L. MEDLEY, also known as
                                                      (New Mexico)
 Shelley Wallace, also known as
 Roschelle Wallace, also known as
 Ruth Gibbs,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Pamela Medley was charged with five counts of wire fraud in violation of

18 U.S.C. § 1343; six counts of mail fraud in violation of 18 U.S.C. § 1341; one


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
count of making a false claim against the United States in violation of 18 U.S.C. §

287; seven counts of money laundering and aiding and abetting money laundering

in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(B)(I); two counts of impersonating

a United States employee in violation of 18 U.S.C. § 912; one count of making a

false statement in violation of 18 U.S.C. § 1001; and one count of false

representation of a social security number in violation of 42 U.S.C. §

408(a)(7)(B). A jury found her guilty on all counts and the court sentenced her to

seventy-eight months incarceration.

      Ms. Medley’s appointed counsel filed an appellate brief indicating Ms.

Medley desires to raise nine issues on appeal. Counsel raised eight of the issues

pursuant to Anders v. California, 386 U.S. 738 (1967), but contended the case

should be remanded for resentencing on Issue VI because the court sentenced Ms.

Medley under the wrong edition of the United States Sentencing Guidelines

Manual. The government asserted that Ms. Medley’s sentence would be equal to

or greater under the proper version of the guidelines and that the error was

therefore harmless. In reply, Ms. Medley’s counsel acknowledged Issue VI was

governed by Anders and moved to withdraw.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, she may advise the court and request permission to

withdraw. Counsel must also submit to both the court and her client a brief


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referring to anything in the record arguably supportive of the appeal. The client

may then raise any point she chooses, and the court thereafter undertakes a

complete examination of all proceedings and decides whether the appeal is in fact

frivolous. If it so finds, the court may then grant counsel’s request to withdraw

and dismiss the appeal. See id. at 744.

      Ms. Medley’s counsel has met the procedural requirements imposed by

Anders. She sent a copy of her reply brief to Ms. Medley, who then filed a pro se

brief in which she restated the nine numbered issues, including Issue VI, and

attached several letters indicating her displeasure with her counsel. Having

completely examined each issue raised by Ms. Medley, we deny counsel’s motion

to withdraw and remand the case to the district court for the reasons set forth

below.

      Ms. Medley first argues the district court abused its discretion by quashing

pretrial document subpoenas the defense issued without court authorization. We

review a district court’s suppression of such subpoenas for an abuse of discretion.

See United States v. Morris, 287 F.3d 985, 991 (10th Cir. 2002). On December 7,

2001, Ms. Medley filed a motion under Federal Rule of Criminal Procedure 17(c),

requesting production of investigative files from the Federal Emergency

Management Agency (FEMA) and the Small Business Administration (SBA).

Before the court ruled, counsel served the subpoenas. The government moved to


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quash the subpoenas, claiming they were unauthorized attempts to circumvent the

discovery rules. Ms. Medley then argued the subpoenas were actually Rule 17(a)

witness subpoenas, not Rule 17(c) subpoenas. The district court quashed the

subpoenas on the grounds that it never authorized them, Rule 17(a) does not

address document subpoenas, and the subpoenas were attempts to circumvent the

rules of discovery under Rule 16. Ms. Medley offers no discernible reason why

the court abused its discretion in quashing the unauthorized subpoenas, and

having reviewed the record, we can see none.

      Although Issue II ostensibly concerns the district court’s evidentiary

rulings, Ms. Medley’s brief focuses on the Sixth Amendment implications of the

quashed subpoenas, providing an example of what she characterizes as a

document the government intentionally withheld from the jury. Aplt. Pro Se Br.

at 7-8. From her counsel’s Anders brief, we learn Ms. Medley also disputes the

district court’s rulings admitting into evidence a letter from Ms. Medley to United

States Senator Jeff Bingaman, several charts, testimony regarding telephone calls

and documents, and identification of defendant from surveillance camera images.

      We review the district court’s evidentiary rulings for abuse of discretion.

See Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1171 (10th Cir.

2003). Even if the court erred by admitting evidence, the harmless error doctrine

forbids us from disturbing the court’s rulings unless the error substantially


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influenced the jury’s verdict. See United States v. Anaya, 117 F.3d 447, 448

(10th Cir. 1997). Ms. Medley bears the burden of demonstrating her substantial

rights were affected. See id. at 448-49. She has not demonstrated the district

court erred in any evidentiary rulings, much less how such rulings harmed her

substantial rights.

      Ms. Medley next contends the evidence was insufficient to convict her. To

determine whether evidence is sufficient to uphold a conviction, “we examine, in

the light most favorable to the government, all of the evidence together with the

reasonable inferences to be drawn therefrom and ask whether any rational juror

could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir. 1993). The evidence was

overwhelming that Ms. Medley committed a complex and far-reaching fraud

founded on a veritable mountain of forged and false documents. She claims the

government withheld for several months what she describes as exculpatory

evidence, but she does not give any reasons why any rational juror could have

found her not guilty when presented with evidence that she repeatedly used a dead

woman’s name and identity; filled out documents under a false name and social

security number; filed a claim for reimbursement for a property in which she

never lived; made materially false statements about her residency, losses in a fire,

and employment; and impersonated not only a FEMA official but an Assistant


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United States Attorney.

      Ms. Medley also asserts the government improperly shifted the burden of

proof in its closing argument. We review for plain error allegedly improper

comments made in closing arguments if counsel did not object

contemporaneously. See United States v. Hernandez, 327 F.3d 1110, 1114 (10th

Cir. 2003). If Ms. Medley can show plain error affecting her substantial rights,

we have the discretion to correct it if it “seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)). Ms. Medley’s ill-founded and unsupported

contentions have not met this “rather stringent test.” Id. Defense counsel

intimated in her opening statement that the evidence would show Ms. Medley had

been engaged in an affair with Mr. Van Buren, the landlord of a residence lost in

the fire. See id. at 348-49. The defense neither introduced any evidence of this

affair nor rebutted Mr. Van Buren’s testimony that he had never even met Ms.

Medley. See tr. at 861-64. In closing, the prosecutor reminded the jury of its

duty to base its decision on the evidence and that counsel’s opening statements

were not evidence. The prosecutor was careful to make clear to the jury that “the

defendant ha[d] no obligation whatsoever to produce any evidence at all. None.”

Id. at 1274-75. On this record, the prosecutor was well within the limits of

permissible argument and clearly did not shift the burden to defendant. See


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United States v. Simpson, 7 F.3d 186, 190 (10th Cir. 1993) (collecting cases

upholding prosecutorial comment on lack of evidence supporting defendants’

theories); United States v. Prichard, 645 F.2d 854, 858 (10th Cir. 1981) (defense

counsel’s opening argument invited prosecutor’s response that defense had not

proved what it said it would).

      Ms. Medley also raises a number of sentencing issues, the most significant

of which is her contention that her sentence violated her Sixth Amendment right

to a jury trial because the district court found three facts, by a preponderance of

the evidence, that increased her sentence. She specifically contends the court

unconstitutionally increased her sentence under the guidelines when it found: (1)

the intended-loss figure exceeded $400,000 when the highest intended-loss

number the government introduced at trial was $329,617; (2) her criminal history

category was III by relying on considerable uncharged criminal conduct; and (3)

she obstructed justice by lying to pretrial services. Ms. Medley raised a challenge

in the district court based on Apprendi v. New Jersey, 530 U.S. 466 (2000),

regarding her first two arguments.

      In Blakely v. Washington, 124 S. Ct. 2531 (2004), the Court applied the

rule of Apprendi to Washington state’s determinate sentencing scheme. In

holding Washington’s sentencing scheme unconstitutional, the Court reiterated

that the Sixth Amendment requires any fact, other than a prior conviction, that


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increases the penalty for a crime beyond the prescribed statutory maximum be

admitted by the defendant or found by a jury beyond a reasonable doubt. Id. at

2536-37. In United States v. Booker, 125 S. Ct. 738 (2005), the Court held the

Sixth Amendment requirement that a jury find certain sentencing facts to be

incompatible with the Federal Sentencing Act, thus requiring severance of the

Act’s provisions making the federal sentencing guidelines mandatory. Id. at 756-

57, 765. To cure the constitutional problem, the Court made the guidelines

advisory. Id. at 757.

      Because Ms. Medley raised Apprendi when she was sentenced, rec., vol. 15,

at 73-74, we review for harmless error her Sixth Amendment claims regarding

intended loss and uncharged conduct. Federal Rule of Criminal Procedure 52(a)

counsels federal courts to disregard “[a]ny error, defect, irregularity, or variance

that does not affect substantial rights.” F ED . R. C RIM . P. 52(a). “In the context of

a misapplication of the guidelines under 18 U.S.C. § 3742(f)(1), the Supreme

Court held that ‘once the court of appeals has decided that the district court

misapplied the Guidelines, a remand is appropriate unless the reviewing court

concludes, on the record as a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the sentence imposed.’”

United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005)

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)). The burden is on


                                           -8-
the government to establish harmlessness, and it has not attempted to do so.

Accordingly, Ms. Medley is entitled to be resentenced pursuant to Booker. 1 See

United States v. Lang, No. 04-4165, 2005 WL 834669, at *4 (10th Cir. Apr. 12,

2005).

         Having carefully examined the entire proceedings as required by Anders,

we cannot agree with counsel that no non-frivolous grounds for appeal appear on

this record. We therefore DENY counsel’s request to withdraw, affirm the

conviction, and REMAND the case to the district court with directions to vacate

Ms. Medley’s sentence and to resentence her in light of Booker.



                                               ENTERED FOR THE COURT



                                               Stephanie K. Seymour
                                               Circuit Judge




       Given that we must remand for resentencing in any event, we need not
         1

address any of the other sentencing issues Ms. Medley raises. See United States
v. Cano-Silva, Nos. 03-4059, 03-4108, 2005 WL 698983, at *6 (10th Cir. Mar. 28,
2005) (reversing one issue and remanding for resentencing pursuant to Booker
without addressing other asserted error).

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