                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES CO URT O F APPEALS October 10, 2007
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT
                                                                    Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 07-8001
 v.                                             (D.C. No. 06-CR-166-W FD)
                                                        (D . W yo.)
 RO BERT SOU LE,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Robert H. Soule appeals his sentence of 130 months’ imprisonment

imposed following his guilty plea for possession of child pornography in violation

of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Soule’s counsel moves for leave to

withdraw in a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967).

Because we conclude that each of the arguments raised by Soule’s counsel in her




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
Anders brief is frivolous, we AFFIRM Soule’s sentence, DISM ISS his appeal,

and G R A N T counsel’s motion to withdraw.

                                         I

      Soule’s troubles in this case began on M ay 20, 2006, when members of his

family contacted the Laramie Police Department to report that they had

discovered what appeared to be child pornography amongst Soule’s possessions at

his mother’s home. After attempting to interview Soule about his fam ily’s

discovery, officers applied for and obtained a search warrant for Soule’s mother’s

residence as well as for two storage units leased by Soule. Officers executed the

search warrant on M ay 25 and 26, 2006, and found approximately seventy 3.5-

inch floppy computer disks, ammunition for several types of firearms, and

numerous pornographic photographs. The officers later turned over the computer

disks to members of the Internet Crimes Against Children Task Force, who

determined that the disks contained approximately 210 digital images depicting

children engaged in explicit sexual activity. Some of the children depicted in the

images were prepubescent, and at least six images allegedly depicted children

engaged in sadomasochistic conduct.

      On July 19, 2006, a federal grand jury indicted Soule on two counts,

charging: (1) unlawful possession of ammunition in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2); and (2) knowing possession of images of child

pornography that affected interstate commerce in violation of 18 U.S.C.

                                       -2-
§ 2252A(a)(5)(B) and (b)(2). Soule initially pleaded not guilty to both counts at

his arraignment, but later entered into a written plea agreement with the

government, in which he agreed to plead guilty to the count alleging possession of

child pornography in exchange for the government’s dismissal at sentencing of

the other count. The district court held a hearing on the plea agreement on

September 22, 2006, and accepted the revised plea.

      Soule was sentenced on December 8, 2006. His Presentence Report

(“PSR”) noted an adjusted total offense level of 26 and a criminal history

category of V. Taken together with the 120-month mandatory minimum sentence

required by 18 U.S.C. § 2252A(b)(2), 1 these sentencing considerations provided

for a potential range of 120 to 137 months’ imprisonment. In response to the

PSR , Soule advanced three main objections: (1) the mandatory minimum

sentence required by 18 U.S.C. § 2252A(b)(2) constitutes a per se cruel and

unusual punishment in violation of the Eight Amendment; (2) the PSR

overrepresented his criminal history and a departure from the Guidelines was thus

warranted under U.S.S.G. § 4A1.3(b); and (3) under the factors listed in 18

U.S.C. § 3553(a), the court should impose a sentence below the Guidelines, or, in

the alternative, sentence Soule to no more than the mandatory minimum. The

district court rejected each of these arguments and imposed a sentence of 130

      1
        Under 18 U.S.C. § 2252A(b)(2), a person with a prior conviction for
possession of child pornography, like Soule, must be “imprisoned for not less
than 10 years nor more than 20 years.”

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months’ imprisonment, with fifteen years of supervised release. This timely

appeal followed.

                                          II

      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may “so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief

to both the appellate court and the client, pointing to anything in the record that

would potentially present an appealable issue. The client may then choose to

offer any arguments to the court. If, upon complete examination of the record,

the court determines that the appeal is in fact frivolous, it may grant the request to

withdraw and dismiss the appeal. Id. In the present case, acting pursuant to

Anders, counsel provided Soule with a copy of the appellate brief; Soule has

declined the opportunity to file a pro se brief. Counsel’s Anders brief raises four

potentially appealable issues, each of w hich we determine to be frivolous.

      First, counsel’s brief argues that the district court abused its discretion by

denying Soule’s motion for a downward departure based on U.S.S.G. § 4A1.3(b).

W e generally have no jurisdiction to review a district court’s discretionary

decision to deny a defendant’s motion for downward departure. United States v.

Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007). Indeed, we may only review a

denial of a defendant’s motion for departure if the denial was based on the district

court’s erroneous belief that it w as without authority to grant the departure. Id.

                                         -4-
As the transcript from Soule’s sentencing hearing makes clear, the district court

used its discretion to deny the motion for downward departure and did not

erroneously rely on the belief that it was without authority to grant the requested

departure. W e are thus w ithout jurisdiction to review its denial.

      Second, counsel’s Anders brief raises what is essentially a reasonableness

argument under United States v. Booker, 543 U.S. 220 (2005). Counsel

specifically asserts that the district court erred in denying Soule’s request for a

variance from the G uidelines pursuant to 18 U.S.C. § 3553(a). Post-Booker, we

review a sentence for reasonableness. See United States v. Kristl, 437 F.3d 1050,

1053 (10th Cir. 2006). In conducting this analysis, we review the district court’s

factual findings for clear error and its legal determinations de novo. United

States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). W e also apply a

presumption that a sentence falling within a properly calculated Guidelines range

is reasonable. 2 Kristl, 437 F.3d at 1054.

      Soule did not object to the district court’s application of the Guidelines or

to the court’s calculation of the relevant sentencing range based on Soule’s

adjusted offense level and prior criminal record. In addition, our review of the

transcript from the sentencing hearing reveals that the district court properly


      2
        Our circuit’s use of an appellate presumption of reasonableness for those
sentences falling within a properly calculated Guidelines range was recently
upheld by the Supreme Court in Rita v. United States, 127 S. Ct. 2456, 2462-68
(2007).

                                         -5-
considered Soule’s objections to the proposed sentence, as w ell as the factors

articulated in 18 U.S.C. § 3553(a). Soule has done nothing to overcome the

presumption that his 130-month sentence is reasonable, and we therefore conclude

that, under the circumstances presented, Soule’s sentence is reasonable. See

Kristl, 437 F.3d at 1055.

      Third, counsel’s brief posits that the statutory minimum sentence of 120

months for Soule’s conviction amounts to cruel and unusual punishment in

violation of the Eighth Amendment to the United States Constitution.

Specifically, Soule’s counsel asserts that it is per se cruel and unusual for

Congress to impose a mandatory minimum sentence under any statute. Because

this issue presents a purely legal question, we review the district court’s denial of

this objection de novo. See United States v. Angelos, 433 F.3d 738, 750 (10th

Cir. 2006).

      “The Eighth Amendment . . . contains a narrow proportionality principle

that applies to noncapital sentences.” Ew ing v. California, 538 U.S. 11, 20 (2003)

(quotations omitted). It does not, however, “require strict proportionality

between crime and sentence.” Id. at 23 (quotation omitted). The Supreme Court

has “drawn the line of required individualized sentencing at capital cases, and

see[s] no basis for extending it further.” Harmelin v. M ichigan, 501 U.S. 957,

996 (1991); see also id. at 995 (recognizing that “[t]here can be no serious



                                         -6-
contention . . . that a sentence which is not otherwise cruel and unusual becomes

so simply because it is mandatory.”). Given the w eight of Supreme Court

precedent on this issue, and the fact that the Guidelines recommend a sentencing

range of 110 to 137 months’ imprisonment in this case, even without

consideration of the applicable mandatory minimum, we decline to hold that the

120-month mandatory minimum sentence imposed under 18 U.S.C. § 2252A(b)(2)

violates the Eight Amendment’s proscription against inflicting cruel and unusual

punishment, per se or otherwise.

      Finally, counsel argues that Soule’s guilty plea was invalid. W e have often

recognized that a defendant’s plea must be given voluntarily, knowingly, and

intelligently. See, e.g., United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir.

1998). To ensure these basic requirements are met, a district court must inform a

defendant of the nature of the charges to which he pleads, the rights he waives by

pleading guilty, and the possible penalties that will be imposed if he is adjudged

by the court to be guilty. Fed. R. Crim. P. 11(b)(1). The district court must also

question the defendant to ensure that he gives the plea voluntarily and not as a

result of “force, threats, or promises.” Fed. R. Crim. P. 11(b)(2). Our review of

the record before us leads us to conclude that the district court scrupulously

complied with the requirements of Rule 11 and that Soule’s plea was entered

voluntarily, knowingly, and intelligently.




                                        -7-
      Because Soule fails to present us w ith any meritorious grounds for appeal,

we AFFIRM Soule’s sentence, DISM ISS his appeal, and GRANT counsel’s

m otion to w ithdraw .




                                      ENTERED FOR THE COURT




                                      Carlos F. Lucero
                                      Circuit Judge




                                       -8-
