                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 December 9, 2008
                                   TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 08-8027
 v.                                           (D.C. No. 2:07-CR-144-CAB-1)
                                                         (D. Wyo.)
 SHERRY LEONHARDT,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Sherry Leonhardt appeals her two concurrent sentences of 10 months’

imprisonment imposed following her plea of guilty to one count of making false

statements in connection with a bank loan application in violation of 18 U.S.C.

§ 1014 and one count of misuse of a social security number in violation of 42

U.S.C. § 408(a)(7)(B). In a brief filed pursuant to Anders v. California, 386 U.S.

738 (1967), Leonhardt’s counsel asserts that there are no nonfrivolous arguments


      *
        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judgment is not binding precedent, except under the doctrines of law of the case,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.
for presentation on appeal and moves for leave to withdraw. Because we agree

that there are no meritorious issues for appeal, we affirm Leonhardt’s convictions

and sentences and grant counsel’s motion to withdraw. We have jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                          I

      Leonhardt was indicted on five counts of misuse of a social security

number and four counts of making false statements in connection with bank loan

applications. Pursuant to a plea agreement, Leonhardt pleaded guilty to one count

of each, and the remaining seven counts were dismissed. As part of that plea

agreement, the parties stipulated that the loss to the victims was less than

$70,000. According to the presentence report (“PSR”), Leonhardt’s United States

Sentencing Guidelines (“Guidelines”) base offense level was 7. 1 See U.S.S.G.

§ 2B1.1(a)(1)(B) (providing a base offense level of 7 for fraud offenses that have

statutory maximum terms of imprisonment of at least twenty years); 18 U.S.C.

§ 1014 (providing a maximum term of imprisonment of thirty years). Because it

calculated the loss to the victims as slightly greater than $70,000, the PSR

recommended, notwithstanding the plea agreement stipulation, an eight-level




      1
        Because they were closely related, the PSR grouped the two charges
together and performed a single Guidelines range calculation. See U.S.S.G.
§ 3D1.2.

                                        -2-
enhancement. 2 U.S.S.G. § 2B1.1(b)(1)(E) (providing an eight-level enhancement

for a victim loss of more than $70,000 but less than $120,000). Leonhardt’s

offense level was then reduced by two levels for acceptance of responsibility.

§ 3E1.1(a). Accordingly, the PSR calculated Leonhardt’s advisory Guidelines

sentencing range using offense level 13 and criminal history Category II,

resulting in a range of 15-21 months’ imprisonment. See Ch. 5, Pt. A (Sentencing

Table).

      At sentencing, the district court adopted the Guidelines calculation

performed in the PSR. After discussing the need for specific deterrence and

Leonhardt’s personal family circumstances and criminal history, the court varied

downward, imposing identical concurrent sentences of 12 months and one day.

The court found that these sentences were “sufficient but not greater than

necessary to address all purposes of sentencing” as required by 18 U.S.C.

§ 3553(a).

      After these sentences were imposed, however, Leonhardt moved for

rehearing on sentencing, arguing that the court had miscalculated the loss

incurred by the victims because the government stipulated in the plea agreement

that such loss was less than $70,000. See U.S.S.G. § 2B1.1(b)(1)(D) (providing a

six-level enhancement for a victim loss of more than $30,000 but less than

      2
         Although Leonhardt pleaded guilty to counts involving only two
institutions, this calculation included losses to each of the institutions from which
she fraudulently obtained loans.

                                         -3-
$70,000). Rehearing was granted. The court recalculated the loss amount,

deferring to the stipulation in the plea agreement, and reduced Leonhardt’s

offense level to 11, which resulted in an advisory Guidelines range of 10-16

months’ imprisonment. The district court then imposed sentences at the low end

of the Guidelines range—concurrent 10 months terms of imprisonment on each

count. Leonhardt also received concurrent three- and five-year terms of

supervised release and was required to pay $200 in special assessments and

$64,950.76 in restitution. This appeal followed.

                                         II

      If an attorney 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 the

appellate court, pointing to anything in the record that could potentially present

an appealable issue. Id. The client must be “furnished” with a copy of the brief

and may then choose to offer additional argument to the court. Id. If, upon

complete examination of the record, the court determines that the appeal is

frivolous, it may grant counsel’s request to withdraw and dismiss the appeal. Id.

      Acting pursuant to Anders, counsel in the present case filed such a brief.

Counsel’s brief contains a certificate of service indicating the Leonhardt was

served by mail with a copy thereof. Leonhardt has not filed a pro se response.

The only arguably appealable grounds raised in defense counsel’s brief—and the

                                        -4-
only such grounds we discern in the record—are (1) the voluntariness of

Leonhardt’s plea and (2) the reasonableness of her sentences.

                                         A

      Counsel’s Anders brief raises the possible argument that Leonhardt’s plea

was not knowing or voluntary. After our review of the record, we agree that this

issue is meritless. The district court complied with the dictates of Federal Rule of

Criminal Procedure 11. Leonhardt was apprised of the rights she waived by

pleading guilty and indicated she understood these rights. She was expressly

asked whether her plea was voluntary, and she answered that it was and that no

one had forced her to enter a guilty plea. Leonhardt further stated that she

discussed the plea agreement with her attorney and understood its contents.

Finally, she admitted to the facts constituting the elements of her crimes of

conviction. There is accordingly no basis on which to conclude that Leonhardt’s

guilty plea was not knowing or voluntary, and any appeal on that ground would

be frivolous.

                                         B

      “Reasonableness includes a procedural component, which includes how the

sentence was calculated, and [a] substantive component concerning the length of

the sentence actually imposed.” United States v. Sutton, 520 F.3d 1259, 1262

(10th Cir. 2008). When a district court correctly calculates a defendant’s

Guidelines range based on factual findings that are not clearly erroneous and

                                        -5-
imposes a sentence within that range, the sentence is entitled to a presumption of

reasonableness on appeal. Id.; see Rita v. United States, 127 S. Ct. 2456, 2462

(2007). We defer to the district court’s determinations of weight given to the

18 U.S.C. § 3553(a) factors. United States v. Smart, 518 F.3d 800, 808 (10th Cir.

2008).

         From our independent review of the record, we discern only one arguable

procedural error in the Guidelines calculation described above. Leonhardt

pleaded guilty to conduct involving two loans, from two separate institutions,

resulting in a total victim loss of between six and seven thousand dollars. But she

was ultimately sentenced based on a total of just less than $70,000 in victim loss,

including losses that resulted from all nine counts with which she was originally

charged. The additional losses arose from other fraudulently-obtained loans taken

from different lenders than those involved in her offenses of conviction. While a

sentencing judge may consider all conduct sufficiently related to the offense of

conviction, United States v. Allen, 488 F.3d 1244, 1254-55 (10th Cir. 2007),

Leonhardt might plausibly have argued that the losses caused by conduct

underlying the seven dismissed counts were not sufficiently related to the conduct

for which she was convicted.

         Nonetheless, we need not determine whether the district court erred in

including victim loss from all counts charged because any error was invited.

“[T]he invited-error doctrine precludes a party from arguing that the district court

                                          -6-
erred in adopting a proposition that the party had urged the district court to

adopt.” United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005). In this

case, when the amount of loss was discussed at Leonhardt’s change of plea

hearing, her lawyer indicated that “there were other loans obtained in counts that

will be dismissed, but will still be relevant conduct.” In that statement,

Leonhardt’s counsel affirmatively urged the court to consider the amount of the

other loans as relevant conduct at sentencing. Counsel then continued to urge a

loss calculation including these loans throughout sentencing and resentencing.

Because any possible error was thus invited, Leonhardt may not raise this issue on

appeal, and any attempt to do so would be frivolous. See, e.g., United States v.

Fields, 516 F.3d 923, 939 (10th Cir. 2008); see also United States v. Carrasco-

Salazar, 494 F.3d 1270, 1273 (10th Cir. 2007) (holding that a claim of procedural

sentencing error may be waived); United States v. Teague, 443 F.3d 1310, 1314-

15 (10th Cir. 2006) (holding that invited error is a form of waiver, which we will

not review even for plain error, pursuant to United States v. Olano, 507 U.S. 725,

732-33 (1993)).

      In all other respects, the Guidelines calculation was correct. Moreover, the

district judge expressly recognized his ability to vary from the Guidelines

range—indeed, Leonhardt’s original sentences included just such a variance. We

thus discern no nonfrivolous argument that reversible procedural sentencing error

occurred.

                                         -7-
      As for substantive reasonableness, we begin with the presumption of

reasonableness for these sentences at the bottom of the Guidelines range. The

district court expressly concluded at resentencing that there was no reason to

deviate from the Guidelines as properly calculated. We defer to that analysis, and

we see no evidence to rebut the presumption of substantive reasonableness.

                                         III

      Because Leonhardt has failed to present us with any meritorious grounds

for appeal, we GRANT defense counsel’s motion to withdraw and AFFIRM

Leonhardt’s convictions and sentences.


                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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