                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 20, 2010
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-3281
                                              (D.C. No. 2:08-CR-20012-JWL-1)
    ALVIN A. MARTIN,                                      (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit
Judges.



         Defendant Alvin Martin was convicted by a jury of one count of conspiracy

to commit and to conceal the crime of interstate transportation of stolen goods, an

offense against the United States, in violation of 18 U.S.C. § 2314. He was

sentenced to thirty-three months’ imprisonment and ordered to pay $404,355 in

restitution. Before sentencing, Martin moved for a new trial based on the


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
government’s alleged violation of Brady v. Maryland, 373 U.S. 83 (1963). The

district court denied the motion. On appeal, Martin’s counsel has filed an Anders

brief and a motion to withdraw as counsel. See Anders v. California, 386 U.S.

738, 744 (1967). Martin, appearing pro se, has submitted three letters raising

additional issues which we will construe as his response to the Anders brief. The

government has not submitted a brief. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we grant counsel’s motion to withdraw and dismiss the appeal.

                                         I

      In December 2005, two shift managers at the Tyson Foods facility in

Olathe, Kansas, confessed to an ongoing scheme to steal food from Tyson and

transport it across state lines. The two managers implicated defendant Martin as

an over-the-road truck driver who helped transport the stolen goods into Arkansas

and Mississippi. One of the principal witnesses for the prosecution at the May

2009 trial was Osie Cobbs who had participated in the conspiracy with his

co-manager, Eric Johnson. Cobbs testified that Martin had willingly participated

in the scheme. Cobbs also admitted occasional recreational use of cocaine during

the time of the conspiracy, but insisted that his usage was under control and did

not cause him financial problems.

      In the weeks leading up to the September 25, 2009, sentencing, the

government informed defense counsel that Cobbs had tested positive for cocaine

use approximately one week prior to the May 2009 trial and that he had had

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another positive drug screen in October 2008. Martin moved for a new trial,

citing violations of Brady, 373 U.S. 83. The district court denied the motion,

concluding that evidence going to Cobbs’ use of cocaine was cumulative

impeachment and that, even without Cobbs’ testimony, the government had

presented enough evidence to prove Martin’s guilt beyond a reasonable doubt.

      At sentencing, Martin objected to the inclusion of evidence adduced at trial

in the presentence investigative report and to the calculation of the amount of loss

attributable to him. He also requested a downward variance. As mentioned, the

district court sentenced Martin to thirty-three months’ imprisonment, which was

at the bottom of the Guideline’s range, and ordered him to pay $404,355 in

restitution. Martin filed a timely notice of appeal from the jury verdict and the

final judgment and sentence.

                                          II

      In Anders, the Supreme Court authorized defense counsel “to request

permission to withdraw where counsel conscientiously examines a case and

determines that any appeal would be wholly frivolous.” United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005). In these types of cases, “counsel

must submit a brief to the client and the appellate court indicating any potential

appealable issues based on the record.” Id. In response to the Anders brief,

“[t]he client may then choose to submit arguments to the court.” Id. We must

then fully examine the record “to determine whether defendant’s claims are

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wholly frivolous.” Id. If we find defendant’s claims to be frivolous, we “may

grant counsel’s motion to withdraw and may dismiss the appeal.” Id.

      Here, Martin’s counsel identifies three potential issues urged by his client

for appeal: whether the court erred in denying Martin’s motion for a new trial

which cited the Brady violation; whether there was sufficient evidence to support

the jury’s verdict; and whether the court erred in denying his request for a

sentencing variance. Counsel has candidly admitted, however, that in his view

there is no factual or legal support for these contentions.

A. Brady violation and sufficiency of evidence.

      Having carefully examined the record on appeal, we agree with counsel’s

assessment of the identified issues and find them to be without merit. As for the

Brady violation, we agree with the district court that the information concerning

Cobbs’ drug use was favorable to Martin and was suppressed by the government.

We further agree, however, that, given the weight of the other evidence produced

by the government and the fact that the jury had learned, by Cobbs’ own

admission, of his occasional drug use, the suppressed information was not

material. See United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994)

(requiring defendant alleging Brady violation to show prosecution (1) suppressed

evidence (2) favorable to defendant (3) that was material). “‘[E]vidence is

material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.

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A ‘reasonable probability’ is a probability sufficient to undermine confidence in

the outcome.’” Hughes, 33 F.3d at 1251 (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)) (alteration in original).

      Even without Cobbs’ testimony, the government produced evidence

sufficient to sustain the jury’s verdict. Co-conspirator Eric Johnson testified that

he and Cobbs had approached Martin, who eventually agreed to become part of

the theft ring. Indeed, according to Johnson, it was Martin who suggested that the

enterprise be expanded because the stolen product could be sold to restaurants and

clubs in Arkansas and Mississippi. Johnson also testified that the numerous

cell-phone calls between him and Martin during the relevant period were solely

about product being taken out of the Tyson facility.

      In addition to Johnson, the government elicited testimony from the FBI

agent assigned to the case who displayed spreadsheets documenting over a

thousand cell-phone calls between Martin and his co-conspirators during the

relevant time period. The agent also presented evidence of numerous Western

Union money transfers between Martin and the others. We agree with the district

court that even if the additional evidence of Cobbs’ cocaine use were disclosed to

the defense and offered at trial, Martin still would have been convicted.

B. Sentencing variance requested.

      As for the request for a sentencing variance, we review a district court’s

sentence under the deferential abuse-of-discretion standard. United States v.

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Smart, 518 F.3d 800, 802 (10th Cir. 2008). The only grounds advanced by Martin

to justify a sentence variance were his age (49), the fact that he had no criminal

history, and that his wife was in ill health. We cannot conclude that the district

court abused its discretion in refusing to credit these reasons as justification for a

sentence variance. The court sentenced Martin to a prison term which fell at the

bottom of the Sentencing Guidelines’ range. The court also gave reasons for the

sentence imposed, correctly applying the 18 U.S.C. § 3553(a) factors.

C. Additional issues raised pro se.

      As for the issues raised by Martin pro se, we will accord him the liberal

construction deserving a pro se submission, see Abdulhaseeb v. Calbone, 600 F.3d

1301, 1311 (10th Cir. 2010), but we will not make his arguments for him, see

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (noting that pro se

litigant is obligated to comply with Federal Rules of Appellate Procedure), or act

as his advocate, Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).

      Martin first argues that he was the victim of ineffective assistance of

counsel. However, “ineffective assistance of counsel claims are more appropriate

for collateral attack under 28 U.S.C. § 2255 than direct appeal, because the

factual record for such claims is more developed when the district court conducts

an evidentiary hearing on the issue.” United States v. Bergman, 599 F.3d 1142,

1149 (10th Cir. 2010). We will not address Martin’s ineffective assistance of




                                          -6-
counsel claim in his direct appeal because we do not have the benefit of that

factual development.

      Martin states that counsel filed pretrial motions “but didn’t Appeal any to

the District Court or the Appeal[]s Court.” Ltr. of Feb. 28, 2010, at 1. Rulings

on pretrial motions are only rarely immediately appealable, and Martin does not

identify which pretrial rulings should have or could have been immediately

appealed. Martin further asserts that the chain of custody was broken, but gives

no details as to that matter; nor does he provide enough details to enable us to

determine whether there is any substance to his claim that his right to a speedy

trial was violated. His contention that Cobbs’ testimony was improper under

Fed. R. Evid. 403 because it may have “provoked an emotional response in the

jury,” Ltr. of Feb. 17, 2010, at 1, is conclusory speculation.

      Martin’s most substantial claim is “that there is a possibility . . . that the

loss and restitution determination is in error.” Ltr. of Feb. 14, 2010 at 1. “We

review factual findings regarding calculation of loss under a clearly erroneous

standard.” United States v. James, 592 F.3d 1109, 1114 (10th Cir. 2010). To the

extent Martin also challenges the methodology the district court used to calculate

loss, that is a legal question we review de novo. Id. We have reviewed the

sentencing hearing testimony of Christopher Ford, who testified to the losses

calculated by Tyson. See R. Vol. 2 at 620-58. We have also considered the

reasoning of the district court in determining how much of those losses should be

                                          -7-
attributed to Martin. See id. at 662-66; 679-97; 715-723. Under the Sentencing

Guidelines, “‘“[a]ctual loss” means the reasonably foreseeable pecuniary harm

that resulted from the offense.’” James, 592 F.3d at 1114 (quoting U.S.S.G.

§ 2B1.1 cmt. n. 3(A)(i)). “The [sentencing] court need only make a reasonable

estimate of the loss.” Id. (alteration in original) (quotation omitted). After

detailed technical testimony regarding Tyson’s loss and a lengthy colloquy with

all counsel regarding the proper methodology to use in calculating the loss, the

district court concluded that Martin was responsible for losses totaling $404,355.

R. Vol. 2. at 720. We conclude the loss amount determined by the court falls

within the evidence presented and is a reasonable estimate of the loss.

                                          III

      After reviewing the record on appeal and the briefing provided, we see no

meritorious issues for appeal. We therefore DISMISS this appeal and GRANT

counsel’s motion to withdraw. Martin’s motion for appointment of counsel on

appeal is DENIED.


                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Chief Circuit Judge




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