                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 15 2002
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                    No. 01-3308
                                                (D.C. No. 99-CR-10086-3-MLB)
    DEMARQUES M. MORRIS,                                  (D. Kansas)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before PORFILIO , ANDERSON, and BALDOCK, Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Following a jury trial, defendant was convicted of two violations of the

Hobbs Act for robbing two stores, and five violations of 18 U.S.C. § 924(c) for


*
      This order and judgment is not binding precedent, except under the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.
either using, brandishing, or discharging a firearm during a crime of violence.

Defendant was sentenced to a total of forty years and ten months of

imprisonment. He appealed on four grounds. We rejected all but defendant’s

argument that the five § 924(c) convictions violated the Double Jeopardy Clause

because they were multiplicious.     See United States v. Morris , 247 F.3d 1080

(10th Cir. 2001). We concluded that each of defendant’s Hobbs Act convictions

could serve as a predicate offense for only one § 924(c) violation.    Id. at 1084.

Accordingly, we remanded the action to the district court with directions to vacate

the judgments of conviction and sentences on the five § 924(c) counts and to

enter a judgment of conviction and sentence on “no more than one § 924(c) count

per Hobbs Act conviction.”     Id. at 1090-91. We affirmed the district court’s

judgment in all other respects.

       On remand, defendant’s counsel argued that the district court had discretion

to choose which two of the five § 924(c) counts to enter judgment on and that the

court should exercise that discretion to enter judgment on the first two § 924(c)

counts, which carried terms of only five and seven years, respectively. In his

personal statements to the court, defendant argued that imposing a twenty-five

year consecutive sentence for the second firearms offense under § 924(c)(1)(C)

would violate the Supreme Court’s holding in       Apprendi v. New Jersey , 530 U.S.

466 (2000), because the indictment did not mention § 924(c)(1)(C). Defendant


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further argued that the adjustments to his offense level set forth in the presentence

investigation report also ran afoul of   Apprendi because they depended on facts

that were not specified in the indictment or found by the jury.

       The district court rejected the arguments of both defendant’s counsel and

defendant himself, and entered judgment against defendant on Counts 1, 4, 6, and

8. The court imposed concurrent sentences of seventy months on Counts 1 and 6

(Hobbs Act violations), which were to run consecutively to a term of ten years on

Count 4 (discharging a firearm during a crime of violence), which, in turn, was to

run consecutively to a term of twenty-five years on Count 8 (brandishing a

firearm during a crime of violence). Although brandishing a firearm ordinarily

carries a minimum sentence of seven years, the minimum sentence was increased

to twenty-five years under § 924(c)(1)(C)(i) because it was a second or

subsequent § 924(c) conviction. Defendant now appeals.

       Defendant’s counsel has filed a brief pursuant to   Anders v. California , 386

U.S. 738 (1967), and has moved for leave to withdraw as counsel. In accordance

with Anders , counsel has advised the court that, after conscientious examination,

he believes the case to be wholly frivolous, and he has submitted a brief referring

to anything in the record arguably supportive of the appeal. Defendant has been

given an opportunity to raise any point he chooses, and has filed a statement

raising several additional arguments. We have thoroughly examined all the


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proceedings and conclude that the appeal is in fact frivolous. We therefore grant

counsel’s request to withdraw and dismiss the appeal.

      In his Anders brief, counsel addresses the argument that imposing a

consecutive twenty-five year sentence for Count 8 under § 924(c)(1)(C)(i)

violates Apprendi . As counsel explains, this case does not implicate the Supreme

Court’s holding in Apprendi that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt,”

530 U.S. at 490.

      First, Apprendi was concerned only with facts that increase the statutory

maximum penalty, and the relevant facts under § 924(c)(1)(C)(i) increase only the

statutory minimum penalty.   1
                                 Second, Apprendi expressly excludes “the fact of a

prior conviction” from its general rule. 530 U.S. at 490. Here, the only fact that

triggered the increased statutory minimum under § 924(c)(1)(C)(i) was

defendant’s prior conviction for a § 924(c) violation. This fact did not need to be

alleged in the indictment, submitted to the jury, or proved beyond a reasonable



1
       We are aware that the Supreme Court currently has under review a case that
presents the question whether a fact that increases the statutory minimum must
also be alleged in the indictment and proved beyond a reasonable doubt.     See
Harris v. United States , 122 S. Ct. 663 (2001) (acceptance of certiorari). Even if
the Court were to hold that the rule in   Apprendi does extend to statutory
minimums, however, defendant’s argument would still fail on the other grounds.

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doubt. Apprendi , 530 U.S. at 490 ; see also United States v. Martinez-Villalva     ,

232 F.3d 1329, 1332 (10th Cir. 2000) (holding that indictment that does not

contain separate charge for prior conviction of aggravated felony does not run

afoul of Apprendi ). Finally, because both of defendant’s § 924(c) convictions

arose out of the same criminal proceeding, the jury here did find both the first and

the second § 924(c) convictions beyond a reasonable doubt.      2



       In his pro se statement, defendant argues that three incremental increases of

his offense level for the Hobbs Act violations, which resulted in a total increase

of seven points, also violated   Apprendi because they depended on facts that were

not alleged in the indictment or proved beyond a reasonable doubt. Although

these adjustments may have affected the sentence defendant received under the

Sentencing Guidelines, they did not affect the statutory maximum sentence

defendant received and, therefore, they do not implicate      Apprendi . The statutory

maximum sentence for a Hobbs Act violation is twenty years.         See 18 U.S.C.

§ 1951(a). Defendant received two concurrent sentences of seventy months, or

five years and ten months, on his Hobbs Act convictions. These are well below

the statutory maximum.



2
        Any challenge defendant might raise to the application of § 924(c)(1)(C)(ii)
to a second § 924(c) count that arises out of the same criminal proceeding as the
first § 924(c) count is foreclosed by the Supreme Court’s decision in Deal v.
United States , 508 U.S. 129, 132-34 (1993).

                                           -5-
       Defendant also argues that his trial counsel provided ineffective assistance

of counsel because defendant was not properly advised that his second and each

subsequent § 924(c) violation would trigger a statutory minimum sentence of

twenty-five years. Defendant contends that if he had been properly advised of the

sentencing scheme, he would have accepted a plea agreement offered by the

government for nineteen years. Absent certain limited circumstances not present

here, “[t]he rule in this circuit . . . is that claims of constitutionally ineffective

counsel should be brought on collateral review, in the first petition filed under

28 U.S.C. § 2255.”    United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir.

1995) (en banc). Ineffective assistance claims that are brought on direct appeal

are “presumptively dismissible.”     Id. at 1240. Therefore, we will not consider

defendant’s claim of ineffective assistance at this time.

       The final issue, raised by both defendant and his counsel, is that Agent

Nevill provided false testimony to the grand jury about what information he

received from third parties about defendant’s involvement in the robberies.

Defendant contends that the testimony Agent Nevill gave at a pretrial hearing

shows that his earlier testimony before the grand jury was false. This issue was

not raised in the first appeal, it was not raised before the district court on remand,

and it is clearly outside the scope of our mandate. Accordingly, we will not

consider it on appeal. See generally United States v. Duncan      , 242 F.3d 940, 950


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(10th Cir.) (discussing “general rule” that this court will “not consider an issue

not presented, considered, and decided by the district court”),    cert. denied ,

122 S. Ct. 134 (2001); United States v. Webb , 98 F.3d 585, 587 (10th Cir. 1996)

(discussing mandate rule and limited circumstances under which departure from

scope of mandate is permissible).

       Based upon our careful review, we conclude that this appeal does not raise

any non-frivolous issues for review. Therefore, we GRANT counsel’s motion to

withdraw and DISMISS the appeal.



                                                         Entered for the Court



                                                         Bobby R. Baldock
                                                         Circuit Judge




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