                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   February 8, 2008
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-4003
 v.                                              (D.C. No. 1:05-CR-150-TS)
                                                         (D. Utah)
 VATO TAHGUV,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.



      Vato Tahguv appeals his conviction for possession of a firearm and

ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) and his sentence of

15 years’ imprisonment. In a brief filed pursuant to Anders v. California, 386

U.S. 738 (1967), Tahguv’s counsel moves for leave to withdraw. We DISMISS

this appeal and GRANT counsel’s motion to withdraw.



      *
        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judgment is not binding precedent, except under the doctrines of law of the case,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.
                                         I

      On August 24, 2006, Tahguv pleaded guilty to a single count of possession

of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1).

During his change of plea hearing, the district court conducted an extensive Rule

11 colloquy. The court emphasized that if the government’s calculation of his

criminal history was correct, Tahguv would face a statutory mandatory minimum

of 15 years’ imprisonment under the Armed Career Criminal Act (“ACCA”). See

18 U.S.C. § 924(e). 1 Acknowledging that he understood this potential sentence,

Tahguv opted to proceed with his change of plea. In doing so, Tahguv admitted

that he had knowingly possessed both a firearm and ammunition. Upon

completion of the colloquy, the district court accepted Tahguv’s guilty plea.

      Tahguv’s presentence report (“PSR”) calculated a base offense level of 24

and a criminal history category of VI. According to the PSR, three of Tahguv’s

prior offenses qualified him as an “armed career criminal” under the ACCA and

U.S.S.G. § 4B1.4(a). These offenses were: (1) escape from official custody, a

third degree felony punishable by up to 5 years’ imprisonment; (2) assault by a

prisoner, also a third degree felony punishable by up to 5 years’ imprisonment;

and (3) possession or distribution of methamphetamine with a minor present, a

      1
        By the date of his change of plea hearing, the government had already
notified Tahguv of the specific predicate offenses it intended to rely upon as
support for an ACCA enhancement.

                                       -2-
second degree felony punishable by 1 to 15 years’ imprisonment. Based on these

convictions, Tahguv’s offense level was raised to 33. See U.S.S.G.

§ 4B1.4(b)(3)(B). After a three-level reduction for acceptance of responsibility,

his total adjusted offense level was 30. See § 3E1.1. Because the ACCA

mandates a minimum prison sentence of 15 years (180 months) for offenders to

whom it applies, the Guidelines provided for a sentencing range of 180 to 210

months’ imprisonment.

      On November 16, 2006, the district court convened a sentencing hearing.

Before it could proceed, however, Tahguv provided the court with a letter

requesting permission to withdraw his guilty plea because he had received

“insufficient counsel” and had been scared into accepting the government’s plea

bargain. In response, the district court stopped the sentencing proceeding. It then

referred the case to a magistrate judge to determine whether, in light of the

allegations contained in the letter, Tahguv’s appointed counsel should be

removed. After holding a hearing on the issue and considering Tahguv’s

arguments, the magistrate found that it was not necessary to remove Tahguv’s

counsel from representation.

      At Tahguv’s rescheduled sentencing hearing, Tahguv again asserted that he

wished to withdraw his plea and that he was unsatisfied with his counsel.

Although he continued to admit that he had possessed ammunition at the time of

his arrest, Tahguv denied possessing a firearm. Considering his arguments for

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withdrawal in light of the factors set forth in United States v. Black, 201 F.3d

1296, 1299-1300 (10th Cir. 2000), the district court concluded that Tahguv should

not be permitted to withdraw his plea. It then proceeded to sentence Tahguv to

180 months’ imprisonment, the statutory minimum sentence and bottom of the

applicable Guidelines range.

                                          II

      If an attorney conscientiously 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 both the appellate court and the client, pointing to anything in the record that

would potentially present an appealable issue. Id. The client may then “raise any

points that he chooses” in response to counsel’s brief. Id. If, upon complete

examination of the record, the court agrees that an appeal would be frivolous, it

may grant the request to withdraw and dismiss the appeal. Id.

      Acting pursuant to Anders, counsel requested that this court provide

Tahguv with a copy of the appellate brief. We did so. Tahguv has not filed a pro

se brief in response. Counsel’s brief raises two arguably appealable issues: (1)

whether the district court abused its discretion in denying Tahguv’s attempt to

withdraw his guilty plea, and (2) whether the district court properly applied an

ACCA enhancement to Tahguv’s sentence.

                                          A

                                         -4-
      Federal Rule of Criminal Procedure 11(d)(2)(B) allows a defendant to

withdraw a guilty plea “before [the district court] imposes sentence if . . . the

defendant can show a fair and just reason for requesting the withdrawal.” In

evaluating whether such a reason exists, a district court must consider:

      (1) whether the defendant has asserted his innocence; (2) whether the
      government will be prejudiced if the motion is granted; (3) whether
      the defendant has delayed in filing the motion; (4) the inconvenience
      to the court if the motion is granted; (5) the quality of the
      defendant’s assistance of counsel; (6) whether the plea was knowing
      and voluntary; [and] (7) whether the granting of the motion would
      cause a waste of judicial resources.

Black, 201 F.3d at 1299-1300. “We review the district court’s denial of a motion

to withdraw a guilty plea for an abuse of discretion.” United States v. Jones, 168

F.3d 1217, 1219 (10th Cir. 1999).

      Analyzing these factors, the district court concluded that Tahguv had failed

to show the existence of a fair and just reason for withdrawal. For substantially

the same reasons articulated by the court, we conclude that it did not abuse its

discretion in denying Tahguv’s attempt to withdraw his plea.

      First, Tahguv did not assert that he was innocent of the crime for which he

was convicted. Although he attempted to recant his admission that he possessed a

firearm, he consistently admitted possessing ammunition, which alone is




                                          -5-
sufficient for conviction under 18 U.S.C. § 922(g). 2 See United States v. Siedlik,

231 F.3d 744, 749 (10th Cir. 2000).

      Second, allowing Tahguv to withdraw his guilty plea would prejudice the

government. Because Tahguv’s plea was entered only four days before his

scheduled trial, a withdrawal would require the government to duplicate its trial

preparation efforts. See id. Additionally, a witness originally scheduled to testify

at Tahguv’s trial on behalf of the government has already been granted leniency

on several charges, and as a result, may no longer be willing to testify at a

rescheduled trial.

      Third, Tahguv delayed in making his request to withdraw. He entered his

plea on August 24, 2006, and did not request its withdrawal until November 13,

2006, immediately prior to his scheduled sentencing. See United States v.

Kramer, 168 F.3d 1196, 1202 (10th Cir. 1999) (denying withdrawal where

defendant “delayed his motion to withdraw until the eve of sentencing”). Fourth,

the court would be inconvenienced. See United States v. Graham, 466 F.3d 1234,

1238 (10th Cir. 2006) (recognizing the “obvious inconvenience” to the court of

scheduling a new trial after the court had “expended significant resources” by

previously scheduling trial).


      2
        In relevant part, section 922(g) provides: “It shall be unlawful for any
person—(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to . . . possess in or affecting
commerce, any firearm or ammunition . . . .” (emphasis added).

                                        -6-
      As to the fifth factor, although Tahguv alleged that his counsel failed to

fully explain the elements of his crime and help him with his motion to withdraw,

he attested in his signed statement before his plea that he was satisfied with

counsel. He confirmed these sentiments during his Rule 11 colloquy. Moreover,

the district court explicitly found that “the defendant has had competent

assistance of counsel through every step of this case.”

      Sixth, the district court conducted a thorough Rule 11 colloquy wherein

Tahguv acknowledged his guilt, swore that his plea had not been induced, and

stated that he understood everything the court explained as required by Rule 11,

thereby indicating that his plea was knowing and voluntary. See id. at 1239. For

the same reasons that the court would be inconvenienced by a plea withdrawal,

judicial resources would also be wasted. In short, each of the relevant factors

bears against allowing Tahguv to withdraw his plea, and thus the district court did

not abuse its discretion in concluding that the interests of justice did not warrant

withdrawal.

                                          B

      Tahguv seeks to appeal the district court’s application of the ACCA

enhancement to his sentence. In his plea agreement, however, Tahguv waived his

right to appeal his sentence unless “the sentence is imposed in violation of law or,

in light of the factors listed in 18 U.S.C. § 3553(a), the sentence is unreasonable.”

We will enforce a waiver of appellate rights if: (1) the issue appealed falls within

                                         -7-
the scope of the waiver; (2) the defendant knowingly and voluntarily waived his

appellate rights; and (3) enforcement would not result in a miscarriage of justice.

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).

Considering these factors, we conclude that Tahguv’s waiver is enforceable.

      As an initial matter, the court’s imposition of the ACCA enhancement to

Tahguv’s sentence was not unreasonable: It was mandated by statute. See 18

U.S.C. § 924(e). Nor was imposition of the enhancement unlawful. Two of

Tahguv’s prior crimes qualified as “violent felonies,” 3 and a third qualified as a

“serious drug offense.” See § 924(e)(1) (enhancement applies if a defendant “has

three previous convictions . . . for a violent felony or a serious drug offense, or

both”). We have previously held that all escapes are classified as violent felonies

because they create an inherent risk of physical injury. United States v. Moudy,

132 F.3d. 618, 620 (10th Cir. 1998).

      Tahguv’s conviction for assault by a prisoner also falls within the

definition of a violent crime. One element of the statute under which he was

convicted is “commission of assault,” which by definition requires the use of

force. Utah Code Ann. § 76-5-102.5. Each of these crimes is punishable by more



      3
        A violent felony is defined as a crime punishable by imprisonment for
more than one year, which “has as an element the use, attempted use, or
threatened use of physical force against the person of another” or “involves
conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B).

                                         -8-
than a one year term of imprisonment. Thus, both prior convictions were properly

identified as ACCA predicates.

         As to his third predicate offense, Tahguv’s PSR indicates that he was

convicted for “possession or distribution” of a controlled substance in the

presence of a minor, a second-degree felony carrying a maximum penalty of 15

years’ imprisonment. Utah Code Ann. § 58-37-8. A serious drug offense

includes “an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance . . . for

which a maximum term of imprisonment of ten years or more” applies. 18 U.S.C.

§ 924(e)(2)(A)(ii). We look to the face of the statute of conviction, rather than

individual offense conduct, to determine whether a conviction satisfies this

definition. See, e.g., United States v. McMahon, 91 F.3d 1394, 1398 (10th Cir.

1996).

         Section 58-37-8 criminalizes a number of drug offenses. The record

before us does not clearly indicate whether Tahguv was actually convicted of

distribution, which would satisfy the definition of a “serious drug offense,” or of

mere possession, which would not. Counsel’s Anders brief, however, asserts that

Tahguv pleaded guilty to an amended charge which specifically identified his

crime as “distribution.” 4 Tahguv was given the opportunity to respond to

         4
        Tahguv’s PSR identifies the relevant conviction as “Possession or
Distribution of Controlled Substance with Minor Present” and states that,
                                                                    (continued...)

                                          -9-
counsel’s Anders brief by filing a pro se brief in which he could have contested

the factual basis for this claim. It is appellant’s responsibility to provide the

appellate court with any portions of the record that support his claims. See Scott

v. Hern, 216 F.3d 897, 912 (10th Cir. 2000). Where the record is insufficient to

permit assessment of a claim, it must fail. Id. Our examination of the record

leads us to conclude that Tahguv has failed to raise a nonfrivolous claim that this

past offense did not constitute a “serious drug offense.” Because the ACCA

enhancement was not imposed contrary to law, it falls within the scope of his

waiver of appellate rights.

      “When determining whether a waiver of appellate rights is knowing and

voluntary, we especially look to . . . whether the language of the plea agreement

states that the defendant entered the agreement knowingly and voluntarily . . .

[and] for an adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn,

359 F.3d at 1325 (citations omitted). Tahguv’s Rule 11 colloquy was complete

and adequate. His plea agreement includes the statement:

      My decision to enter this plea was made after full and careful
      thought, with the advice of counsel, and with a full understanding of
      my rights, the facts and circumstances of the case and the
      consequences of the plea. I was not under the influence of any
      drugs, medication or intoxicants when the decision to enter the plea
      was made and I am not now under the influence of any drugs,


             4
              (...continued)
following a routine traffic stop, police found small pieces of marijuana and two
small baggies of methamphetamine in a car Tahguv was driving.

                                         - 10 -
      medication or intoxicants. I have no mental reservations concerning
      the plea.

      There is no indication in the record that enforcement of Tahguv’s plea

would result in a miscarriage of justice under Hahn, 359 F.3d at 1327. If Tahguv

wishes to challenge the effectiveness of his counsel in connection with the

negotiation of his plea agreement, he must do so collaterally pursuant to 28

U.S.C. § 2255. See Galloway, 56 F.3d at 1240. His plea waiver is otherwise

enforceable.

                                        III

      We DISMISS Tahguv’s appeal and GRANT counsel’s motion to withdraw.


                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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