                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 30 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 03-7092
                                                          (E.D. Okla.)
 RONNIE LEE HOUSTON, a/k/a                           (D.Ct. No. 02-CR-56-S)
 Ronald Lee Houston,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Ronnie Lee Houston, a federal prisoner represented by counsel,

pled guilty to possession of an unregistered firearm in violation of 18 U.S.C. § 2

and 26 U.S.C. §§ 5861(d) and 5871. The district court sentenced Mr. Houston to

120-months imprisonment, and this appeal followed.



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

appeal brief, pursuant to Anders v. California, 386 U.S. 738, 744 (1967), alleging

that, in his opinion, no meritorious appellate issues exist and requesting an order

permitting him to withdraw as Mr. Houston’s counsel. Consistent with the

dictates of Anders, counsel has nevertheless raised one sentencing issue to

support an appeal, generally asserting the district court erred by not allowing Mr.

Houston to withdraw his guilty plea. Pursuant to Anders, this court gave Mr.

Houston an opportunity to raise points in response to the Anders brief, which he

did by filing a reply brief, raising several appeal issues. See id. Exercising our

jurisdiction under 28 U.S.C. 1291, we affirm Mr. Houston’s conviction and

sentence.



                             I. Procedural Background

      On August 1, 2002, a grand jury indicted Mr. Houston on seven counts,

including: 1) being a felon in possession of a firearm; 2) possession of an


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unregistered firearm; 3) transportation of a stolen motor vehicle (i.e., a

bulldozer); 4) unlawful transportation of stolen vehicles in interstate commerce

(i.e., a backhoe and case dozer); 5) unlawful transportation of a stolen vehicle in

interstate commerce (i.e., a pickup truck); 6) knowingly and wilfully conspiring to

commit the crime of fraud and related activity in connection with access devices,

related to the theft of credit card numbers from stolen receipts; and 7) criminal

forfeiture. Mr. Houston then pled guilty to one count of possession of an

unregistered firearm in exchange for dismissal of the other six counts in the

indictment.



      Although represented by counsel, Mr. Houston nevertheless filed pro se

objections to the presentence report, and later a pro se motion to withdraw his

guilty plea. Following a psychiatric examination requested by Mr. Houston and

psychological report finding him competent to stand trial, the district court held a

competency hearing at which time Mr. Houston stipulated he was competent to

stand trial. During the hearing, Mr. Houston made a pro se request for dismissal

of his counsel. The district court then held a hearing on this request together with

Mr. Houston’s motion to withdraw his guilty plea, at which time it granted Mr.

Houston’s motion to dismiss counsel and appointed another public defender to

represent him. The district court then held another hearing on Mr. Houston’s


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motion to withdraw his guilty plea. After hearing arguments from Mr. Houston’s

new counsel, the district court denied the motion. At the sentencing hearing, the

district court overruled Mr. Houston’s pro se objections to the presentencing

report and imposed a 120-month sentence for possession of an unregistered

firearm in violation of 18 U.S.C. § 2 and 26 U.S.C. §§ 5861(d) and 5871.



                                   II. Discussion

      Consistent with Anders, Mr. Houston’s counsel raises on issue on appeal:

whether the district court erred in denying Mr. Houston’s pro se motion to

withdraw his guilty plea. Nevertheless, counsel points out Mr. Houston admitted

to knowingly possessing a Herrington Richardson 14-gauge shotgun not registered

to him, and never articulated any “fair or just reason” for withdrawing his guilty

plea. His counsel also suggests granting Mr. Houston’s request to withdraw his

guilty plea would be “unjust and unfair” because he would face an indictment

with six additional counts, resulting in a multi-count conviction warranting a

much greater sentence than the one imposed. After performing a “conscientious

examination of the record” and thorough research of the issue presented, Mr.

Houston’s counsel concludes the appeal lacks merit.



      In response, Mr. Houston filed a seventeen-page pro se reply brief listing


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multiple grounds for his appeal. In his primary assertion, he contends the statute

to which he pled guilty, 26 U.S.C. § 5861(d), as well as the act in which it is

contained, the National Firearms Act Amendments of 1968, 26 U.S.C. §§ 5801-

02, 5811-12, 5821-22, 5841-49, 5851-54, 5861, 5871-72, 1 are unconstitutional

because: 1) Congress lacks the “enumerated power to require registration of

firearms”; 2) Section 5861(d) is not a legitimate tax generating statute, but one

simply intended to unfairly punish for possession of a weapon; and 3) Section

5861(d) requires registration of a short-barreled shotgun, which is impossible to

register because it is illegal to own.



      Next, Mr. Houston suggests the district court erred in denying his motion to

withdraw his guilty plea, because 1) he was never called to testify at the hearing

on the matter; 2) he twice asserted his innocence to the district court; and 3) his

counsel was ineffective representing him at the district court and now on appeal.

As to his innocence, Mr. Houston claims he asserted it twice when he complained

about counsel stating “I feel he’s already got me found guilty of something I’m

not guilty of yet,” and when at sentencing, he said “I did try to assert my



      1
          While Mr. Houston refers to the National Firearms Act, we will assume he is
referring to the current amendments to the act passed in 1968, which replaced the original
Act in its entirety.


                                           -5-
innocence on the guns at the time not having knowledge that they were in the

truck.... I didn’t have no knowledge of them guns being in that truck.” With

respect to his ineffective assistance of counsel claim, Mr. Houston contends his

counsel improperly failed to pursue his pro se request for withdrawal of his guilty

plea, both in the district court and now on appeal. Finally, Mr. Houston alleges

his counsel’s “feelings” on whether it is “fair and just” to subject him to a multi-

count indictment are irrelevant and instead, counsel should act as Mr. Houston’s

advocate, which his current counsel failed to do by filing an Anders brief.



      We first address Mr. Houston’s primary assertion 26 U.S.C. § 5861(d) and

the 1968 amendments to the National Firearms Act are unconstitutional. We

review de novo constitutional challenges to a statute or an act. United States v.

Parker, 362 F.3d 1279, 1281 (10th Cir. 2004). Mr. Houston fails to establish 26

U.S.C. § 5861(d) and its parent act are beyond Congress’ enumerated power to

either regulate commerce through firearms registration requirements, or impose a

tax thereon. See, e.g., Sonzinsky v. United States, 300 U.S. 506, 512-14 (1937)

(rejecting argument that registration tax on short-barreled shotgun is not true tax,

but a penalty to suppress trafficking of noxious firearms); United States v.

Thompson, 361 F.3d 918, 921 (6th Cir. 2004) (concluding 26 U.S.C. § 5861(d) is

supportable as a legitimate revenue purpose); United States v. Pearson, 8 F.3d


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631, 632-33 (8th Cir. 1993) (holding 26 U.S.C. § 5861(d) represents a valid

exercise of Congress’ commerce clause power). See also United States v. Freed,

401 U.S. 601, 602-03, 605, 608-09 (1971) (upholding registration requirements of

the amended act as not violating the Fifth Amendment and a proper regulatory

measure in the interest of public safety).



      Likewise, we reject Mr. Houston’s due process argument 26 U.S.C.

§ 5861(d) unconstitutionally subjects him to a registration requirement for a

firearm which he alleges is illegal to own. We rejected the same argument in

United States v. McCollom, 12 F.3d 968 (10th Cir. 1993), saying:

            In Dalton, we held that it was unconstitutional to convict the
      defendant under section 5861(d) for possession of an unregistered
      machine gun because the government refused to register machine
      guns due to the ban on [them], imposed by 18 U.S.C. § 922(o)....
      Thus, a separate criminal statute prohibiting possession of the
      weapon made registration a literal and legal impossibility....

      ....

      The distinguishing feature between the short-barreled shotgun in this
      case and the machine gun in Dalton is that there is no statutory ban
      on the registration of short-barreled shotguns.

      ....

      Even if it is unlikely that the firearm would have been accepted for
      registration, the defendant has cited no statute which makes the
      possession of short-barreled shotguns illegal.... Different from
      Dalton, the registration of this weapon was not a legal impossibility.


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Id. at 970-71 (quotation marks and citations omitted). Accord United States v.

Shepardson, 167 F.3d 120, 123-24 (2d Cir. 1999) (following McCollom and

holding “lack of any statutory ban on the registration of sawed-off shotguns is

sufficient evidence of the possibility of registration to satisfy due process”). For

the same reasons here, Mr. Houston’s claim fails.



      Next, we address Mr. Houston’s claim the district court erred in dismissing

his motion to withdraw his guilty plea, because he was never called to testify at

the hearing on the matter, twice asserted his innocence, and received ineffective

assistance of counsel. We review the district court’s denial of a motion to

withdraw a guilty plea for abuse of discretion, and will not reverse the denial of

such a motion unless the defendant can show the district court acted unjustly or

unfairly. See United States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996). It is the

defendant’s burden to establish “a fair and just reason” for withdrawal of the plea,

and in determining whether the defendant has met this burden, the following

factors are considered: 1) whether the defendant asserted his innocence; 2)

prejudice to the government; 3) delay in filing the motion to withdraw; 4)

inconvenience to the court; 5) assistance of counsel; 6) whether the plea is

knowing and voluntary; and 7) waste of judicial resources. See United States v.

Black, 201 F.3d 1296, 1299-3000 (10th Cir. 2000); United States v. Gordon, 4


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F.3d 1567, 1572 (10th Cir. 1993).



      In considering Mr. Houston’s pro se motion to withdraw his guilty plea, the

district court heard from both his counsel on the matter at three separate hearings.

Both counsel, familiar with any inculpatory evidence against Mr. Houston,

pointed out withdrawal of his guilty plea would not serve his best interests and

could instead subject him to multiple criminal counts and a much greater

sentence. After considering counsels’ concerns, the district court also expressly

considered and weighed all the required factors in determining whether Mr.

Houston met his burden of establishing “a fair and just reason” for withdrawal of

the plea. In favor of granting the motion, the district court found Mr. Houston did

not delay in filing his motion, and a withdrawal of his guilty plea would not

unduly prejudice the government, inconvenience the court, or waste judicial

resources. Nevertheless, the district court found Mr. Houston never asserted his

innocence, his guilty plea was “obviously knowing and voluntary,” and he

received effective assistance of counsel because both his attorneys served as

“very capable trial lawyers who are among the best to defend individuals ... in

criminal cases.” Weighing these three factors against the others, the district court

denied Mr. Houston’s motion to withdraw his guilty plea.




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      Having reviewed the record, and applying the applicable law and standard

of review, we conclude the district court did not abuse its discretion in denying

Mr. Houston’s motion to withdraw his guilty plea. First, we note one of Mr.

Houston’s assertions of “innocence” came only at sentencing, long after the

hearings on and resolution of his motion to withdraw his plea. We note the other

assertion, when he stated “I feel he’s already got me found guilty of something

I’m not guilty of yet,” pertained to complaints about his counsel.



      However, even if we assume Mr. Houston sufficiently declared his

innocence, the district court nevertheless determined his knowing and voluntary

guilty plea and the effectiveness of his counsel weighed in favor of denying his

motion. We agree. First, our review of the record establishes his guilty plea was

patently knowing, voluntary, and intelligent, and as his counsel points out, Mr.

Houston admitted committing the crime for which he was convicted, in

contradiction of his later assertion of innocence.



      Next, we reject Mr. Houston’s claim of ineffective assistance of counsel of

both attorneys who represented him. Because “the two-part Strickland v.

Washington test applies to challenges to guilty pleas based on ineffective

assistance of counsel,” Hill v. Lockhart, 474 U.S. 52, 58 (1985), it follows the


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same test applies to a counsel’s representation on a motion to withdraw a guilty

plea. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant

asserting ineffective assistance of counsel must show both that counsel’s

performance was deficient and the deficient performance prejudiced the defense.

To satisfy the performance test of Strickland, the defendant must show his

counsel’s representation fell below an objective standard of reasonableness, and

thereby, “overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 688-89 (quotation marks

and citation omitted).



      At the hearing where he pled guilty, Mr. Houston expressed satisfaction

with his first attorney who represented him during his plea agreement. Nothing in

the record suggests his first attorney acted ineffectively, and the district court

only dismissed him at a subsequent hearing after Mr. Houston expressed

dissatisfaction with him based on “irreconcilable differences,” primarily centered

on Mr. Houston’s disagreement with his attorney’s advice Mr. Houston should not

withdraw his guilty plea because his criminal history could taint the jury’s

opinion of him; he would face multiple counts, resulting in a much stiffer

sentence under the guidelines; and the likelihood he would lose a sentence

reduction for acceptance of responsibility. Like Mr. Houston’s initial counsel, his


                                          -11-
next and current counsel similarly recognized the sound trial strategy of advising

his client to proceed with his guilty plea to one count of the indictment, rather

than risk a conviction on multiple counts and an increased sentence. We cannot

say either counsel acted ineffectively in advising Mr. Houston and later the court,

of the risks of withdrawing his guilty plea. As to Mr. Houston’s charge his

current counsel failed to act as his advocate by filing an Anders brief, it is clear

his counsel did so under the strictures of Anders and a perceived responsibility to

do what was in the best interest of his client. For these reasons, Mr. Houston has

not shown counsels’ performance was deficient.



      Although it is not an enumerated factor we consider in reviewing a request

to withdraw a guilty plea, we nevertheless have considered and rejected Mr.

Houston’s assertion the district court erred in denying his motion because he was

never called to testify at the hearing on withdrawal of his guilty plea. Even

though Mr. Houston did not testify or speak at the second hearing on his motion

to withdraw his plea, a review of the record shows Mr. Houston testified at an

initial hearing on the same motion. On appeal, he fails to show he requested an

opportunity to address the court at the latter hearing or explain what additional

testimony he would have offered at that time to support his motion. Moreover,

given his prolific pro se requests during the course of the proceedings, and the


                                          -12-
district court’s attentive response to those requests, Mr. Houston has not shown

anything prevented him from requesting the opportunity to speak at the final

hearing on his motion to withdraw his plea. For these reasons, we find his failure

to testify unpersuasive in establishing the district court abused its discretion in

denying his motion to withdraw his guilty plea.



      After considering all the factors relevant to a motion to withdraw a guilty

plea, taken together with counsel’s well-reasoned Anders argument that granting

Mr. Houston’s motion would subject him to six additional, serious felony counts

and a greater sentence, we are persuaded the district court did not abuse its

discretion in denying Mr. Houston’s motion to withdraw his plea.



                                   III. Conclusion

      After a careful review of the record on appeal, we grant counsel’s request

to withdraw and AFFIRM Mr. Houston’s conviction and sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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