                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 7 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1469
                                                    (D.C. No. 00-CR-60-D)
    RUDO THOMPSON,                                        (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO, and ANDERSON , 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.

         Rudo Thompson was convicted after a jury trial of one count of possession

with intent to distribute more than five grams of cocaine base, one count of use


*
      This order and judgment is not binding precedent, except under the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.
and carrying of a firearm during and in relation to a drug trafficking offense, and

one count of possession of a firearm by a convicted felon. He appeals both his

convictions and sentence. We affirm in part and dismiss in part.

      Mr. Thompson’s counsel has determined that there are no discernable

issues in the record, and, accordingly, has filed a motion to withdraw as counsel

and an Anders brief outlining Mr. Thompson’s arguments.        See Anders v.

California , 386 U.S. 738, 744 (1967). In the    Anders brief, counsel has identified

four potential issues: 1) whether the trial court erred in denying Mr. Thompson’s

motions to suppress his post-arrest statement and to suppress physical evidence;

2) whether the trial court erred in denying Mr. Thompson’s motion for mistrial

based on the failure of the government to timely disclose evidence; 3) whether

the trial court erred in denying his motion for judgment of acquittal; and 4)

whether the trial court erred in denying his motion for downward departure. In

Mr. Thompson’s pro se response to counsel’s brief, he argues that counsel has

failed to raise an ineffective assistance of trial counsel claim, and he requests

appointment of new counsel.

      After a thorough review of the record on appeal and counsel’s brief, we

concluded that there are no meritorious issues for appeal.

      When reviewing the district court's ruling on a motion to suppress, we

accept the court's factual findings unless clearly erroneous, and view the evidence


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in the light most favorable to the district court's findings.      United States v. Elliott ,

107 F.3d 810, 813 (10th Cir.1997). The credibility of witnesses and the weight to

be given evidence is the province of the district court.        Id. Nevertheless, the

ultimate determination of the reasonableness of a search under the Fourth

Amendment is a question of law which we review de novo.             Id.

       After Mr. Thompson was in custody, he signed a waiver of his            Miranda

rights. He contends that the law enforcement officials continued to question him

even though he requested that the interview stop or that he be allowed to consult

with an attorney. A review of the testimony at the suppression hearing indicates

that the district court did not err in determining the matter of credibility of the

witnesses in the government’s favor.

       Mr. Thompson also challenges the admission of physical evidence which

was found after he was chased by police. Again, our review of the record

indicates that the trial court did not erroneously determine that the police officer

had probable cause to stop and subsequently arrest Mr. Thompson. Thus the

physical evidence that was found was properly admitted into evidence.

       Nor did the trial court abuse its discretion in denying Mr. Thompson’s

motion for mistrial based on the failure of the government to fulfill its discovery

obligations. See United States v. Gonzales , 164 F.3d 1285, 1291 (10th Cir. 1999)

(“District Courts have broad discretion in imposing sanctions on parties who


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violate discovery orders, and we review a court’s decision to impose sanctions

and its choice of sanction for abuse of discretion.”). When the government fails

to comply with a discovery order, the factors which guide the district court

include: “(1) the reasons the government delayed producing the requested

materials, including whether or not the government acted in bad faith when it

failed to comply with the discovery order; (2) the extent of prejudice to the

defendant as a result of the government's delay; and (3) the feasibility of curing

the prejudice with a continuance.”   United States v. Wicker , 848 F.2d 1059, 1061

(10th Cir. 1988). Based upon our review of the record, we conclude that the

district court did not abuse its discretion in choosing not to grant a mistrial. The

late production of records was not the result of bad faith on the part of the

government, nor was defense counsel hampered in defending her client. In fact,

counsel admitted at trial that the records would not have altered the way she

presented her case.

      We also conclude that the district court did not err in denying the

defendant’s motion for judgment of acquittal. We review de novo a district

court’s decision to deny a motion for judgment of acquittal, and view the

evidence in the light most favorable to the government, determining whether “    any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.”   United States v. Schluneger , 184 F.3d 1154, 1158 (10th Cir.


                                          -4-
1999) (quotation omitted),    cert. denied , 528 U.S. 1080 (2000). The record

contains sufficient evidence to support the convictions.

       We do not have jurisdiction to review the claim that the district court erred

in denying Mr. Thompson’s motion for a downward departure based on an

overrepresentation of his criminal history.         See United States v. Fortier, 180 F.3d

1217, 1231 (10th Cir. 1999) (it is well established that the courts of appeals lack

jurisdiction to review the discretionary refusal of the district court to grant a

downward departure).

       The ineffective assistance of counsel claim which Mr. Thompson raises pro

se is more appropriately brought in a 28 U.S.C. § 2255 motion. See United States

v. Galloway, 56 F.3d 1239 (10th Cir. 1995).

       Counsel’s motion to withdraw is        GRANTED . Mr. Thompson’s request for

appointment of counsel is    DENIED . The portion of the appeal wherein the

defendant complains of the denial of a downward departure is           DISMISSED , and

the judgment is AFFIRMED .




                                                            Entered for the Court



                                                            John C. Porfilio
                                                            Circuit Judge


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