                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 23 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                     Nos. 99-3185 & 99-3190
 v.                                            (D.C. Nos. 97-CR-40036-01 &
                                                       96-CR-40013)
 DENZIL MARTIN WEST,                                     (D. Kan.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      In July 1997, Defendant-Appellant Denzil Martin West (“West”) accepted a

plea agreement and pled guilty to: (1) one count of possession of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1);

(2) one count of criminal forfeiture in violation of 21 U.S.C. §§ 841(a)(1) and

853; and (3) one count of conspiracy to distribute methamphetamine in violation



      *
       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) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
of 21 U.S.C. § 846, with reference to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

(See Aplt. App. at 27-28.) The district court sentenced West to 96 months

imprisonment and five years of supervised release for each of the possession and

conspiracy counts, with the sentences to run concurrently. (See id. at 20-21.)

      West’s attorney has determined that West’s appeal of his sentence is

without merit. West’s attorney has therefore filed a motion to withdraw as

attorney of record and a corresponding Anders brief outlining West’s apparent

grounds for appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396,

18 L. Ed. 2d 493 (1967). Anders requires that such a brief must refer to

“anything in the record that might arguably support the appeal.” Id. Consistent

with this requirement, counsel informs us that appellant wishes to allege that the

district court erred when it increased West’s guideline score by an additional four

points based on findings that he had obstructed justice and had used a firearm in

connection with one or more of the charged offenses. (See Aplt. Br. at 4.)

      As relevant to the issues presented in this appeal, West apparently paid

Victor Kiister to kill an individual whom West believed had acted as a

government informant in connection with the possession, forfeiture, and

conspiracy crimes for which he had been charged. (See PSR at 10, 12.) Although

Kiister shot the alleged informant, he was not killed. (See id. at 12.) The Pre-

Sentence Report (“PSR”) recommended a two-point enhancement for use of a


                                        -2-
weapon in connection with the drug crimes to which West had pled guilty

pursuant to U.S.S.G. §§ 1B1.3 and 2D1.1(b)(1). The PSR asserted that the

shooting “should be considered an act in furtherance of a jointly undertaken

criminal activity between the defendant and Kiister.” (See id. at 14.) The PSR

also recommended a two-point enhancement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1 because of West’s role in the attempted murder. (See id.)

      West objected to both of these recommended upward adjustments on the

ground that the information related to the shooting was derived from West’s post-

plea cooperation with the government and therefore could not be considered at

sentencing pursuant to U.S.S.G. § 1B1.8(a). (See id. at 28-30.) The government

responded to the objections by asserting that the information regarding West’s

role in the shooting contained in the PSR was derived from independent sources,

not from statements that West made to the government, and that this information

could therefore be used as a basis for an upward adjustment. (See id. at 29-30.)

The government explained this fact was documented by a report prepared by

Detective Tim Holsinger, summarizing an interview he conducted with a witness,

John Autem. (See id.)

      At West’s sentencing hearing, the district court found that the upward

adjustments for the use of a firearm and obstruction of justice were appropriate.

In reaching this conclusion, the court acknowledged both parties’ arguments.


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(Aplt. App. at 5-6.) The court then stated that it had “reviewed the investigative

interview report prepared by Detective Holsinger after an interview with John

Autem” and that the report revealed that “Autem’s comments went into some

detail about Kiister’s admitted involvement with West” in the attempt to kill the

informant. (Id. at 6.) The court also indicated that it was “satisfied that these

hearsay comments are supported by sufficient indicia of reliability.” (Id. at 6.)

Finally, the court concluded that “USSG section 1(b)1.8(a) does not preclude the

two enhancements.” (Id.)

      As an initial matter, we must address the government’s argument that West

waived his right to appeal the sentence in the plea agreement. (See Aple. Br. at 3-

5.) Paragraph 13 of West’s plea agreement states: “Defendant freely, voluntarily,

knowingly and intelligently waives any right to appeal or collaterally attack any

matter in connection with this prosecution and sentence, including the forfeiture.”

(See Aplt. App. at 31.) Although we are inclined to find that West waived his

right to appeal his sentence by signing the plea agreement, 1 the transcript of the


      1
        We recognize that the reference to “any right to appeal” could be
construed to mean that the defendant has no right to appeal. We believe,
however, that a common sense reading of the phrase “any right to appeal”
adequately communicates that the defendant has a right to appeal. Nonetheless,
the better practice would be to include a reference to the defendant’s statutory
right to appeal his sentence under 18 U.S.C. § 3742 in the plea agreement. See,
e.g., United States v. Hernandez, 134 F.3d 1435, 1436-37 (10th Cir. 1998)
(finding that a statement of a knowing waiver of the right to appeal in a plea
                                                                      (continued...)

                                         -4-
plea hearing contains a troubling remark made by the court to the defendant. The

transcript of the hearing reveals that the court informed West, contrary to the

terms of the plea agreement, that he had a right to appeal his sentence under some

circumstances. 2 For this reason, we decline to dismiss West’s appeal on the

ground that West waived his right to appeal his sentence.

      Turning to West’s claim that the district court enhanced his sentence in

violation to § 1B1.8(a), we begin by observing that “[t]he government has the

burden of proving by a preponderance of the evidence that a particular sentence

enhancement is warranted.” United States v. Moore, 55 F.3d 1500, 1501 (10th

Cir. 1995). “Legal conclusions under the sentencing guidelines are reviewed

under the de novo standard, while factual determinations made by the district

court are reviewed for plain error.” United States v. Lacey, 86 F.3d 956, 962

(10th Cir. 1996). In order to resolve the § 1B1.8(a) issued raised by West in this

      1
        (...continued)
agreement is sufficient to show waiver where the plea agreement also explained
that the defendant has a statutory right to appeal his sentence pursuant to 28
U.S.C. § 3742).
      2
          The relevant portion of the plea hearing colloquy states:

      THE COURT:             Do you also understand that under some circumstances,
                             you or the government have the right to appeal any
                             sentence that I impose?

      DEFENDANT:             Yes.

(Tr. July 25, 1997 at 17.)

                                          -5-
appeal, this court ordered West to supplement the record on appeal with a copy of

the police report referred to and relied upon by the district court during the

sentencing hearing. The supplemental appendix submitted by West in response to

the order contains two separate police reports: one dated December 31, 1996 and

another dated March 31, 1998. Both of the reports were written by Detective

Holsinger and summarize interviews with Autem. Unfortunately, neither the PSR

nor the sentencing transcript reveal which of these two reports was used for

purposes of calculating West’s sentence. Although this ambiguity initially caused

this court some concern, we nonetheless find that the district court did not err in

enhancing West’s sentence for obstruction of justice and possession of a firearm

based on his role in the attempted murder of the government informant.

      U.S.S.G. § 1B1.8(a) prohibits the sentencing court from considering self-

incriminating information provided by the defendant to the government pursuant

to a promise in the plea agreement to provide information concerning unlawful

activities of others. Significantly, § 1B1.8(a) only prevents a district court from

sentencing a defendant based on self-incriminating statements made by the

defendant: “Where a defendant agrees to cooperate with the government by

providing information concerning unlawful activities of others, and as part of that

cooperation agreement the government agrees that the self-incriminating

information provided pursuant to the agreement will not be used against the


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defendant, then such information shall not be used in determining the applicable

guideline range . . . .” U.S.S.G. § 1B1.8(a) (emphasis added). In this case, the

district court did not rely on the information provided by West pursuant to the

plea agreement in determining that an upward adjustment was appropriate.

Rather, the district court looked to a report prepared by a member of the Labette

County Sheriff Department summarizing an interview with a third-party witness.

Indeed, this case is very similar to cases in which we have held that a district

court may rely on the statements of a co-defendant in enhancing a defendant’s

sentence even though a defendant admitted to the same conduct pursuant to a

grant of immunity in the plea agreement. See United States v. Davis, 912 F.2d

1210, 1213 (10th Cir. 1990); United States v. Boyd, 901 F.2d 842, 845 (10th Cir.

1990).

         Our inquiry does not end at this point, however. In Davis, we further

emphasized that § 1B1.8(a) was not implicated because there was no “indication

that the co-defendants’ statements were elicited as a result of [the defendant’s]

plea agreement with the government.” Davis, 912 F.2d at 1213. Our analysis of

West’s § 1B1.8(a) claim is somewhat complicated by the fact that the record on

appeal contains two investigative reports prepared by the Labette County Sheriff’s

Office summarizing two separate interviews with Autem. (See Aplt. Supp. App.)

This is because the first report is dated December 31, 1996, seven months prior to


                                          -7-
West’s guilty plea, while the second report is dated March 31, 1998, eight months

after West’s guilty plea. No § 1B1.8(a) issue could arise with respect to the first

report because it was made prior to the time that the government and West entered

into the plea agreement and therefore clearly could not have been derived from

West’s self-incriminating statements. The same cannot be said of the 1998 report

because West gave the government self-incriminating information concerning his

role in the attempted murder on March 19, 1998–twelve days before the date of

the second interview with Autem. (See Aple. Supp. App. at Vol. I.) However,

the information contained in the first Autem interview was surely sufficient to

lead to the second Autem interview without reliance on any intervening

admissions by West.

      Even assuming the district court relied on the later report, we conclude that

reversal is not warranted in this case. The district court essentially concluded that

the report it relied upon was derived from a source independent of West’s

immunized statements. (See Aplt. App. at 5-6.) Based on the record before this

court, we cannot conclude that the trial court clearly erred in making this finding.

West offers no evidence to prove his allegation that the information relied on by

the district court was derived from West’s own self-incriminating statements. 3 In


      3
       In addition, we find no error with respect to the district court’s decision to
rely on the police report in concluding that West had in fact hired Kiister to kill
                                                                        (continued...)

                                         -8-
conclusion, there was no error with respect to § 1B1.8(a) because the district

court did not rely on West’s immunized statements in enhancing West’s sentence.

      Because counsel seeks to withdraw from representation of West pursuant to

Anders, this court has an obligation to ensure that the appellant, in fact, has no

meritorious claims that he might raise on appeal. See id. at 744-45 (noting that

where counsel seeks to withdraw, the court, after full examination of all the

proceedings, must decide whether the case is wholly frivolous). This court

specifically considered the district court’s decision to enhance West’s sentence

based on Kiister’s possession of a firearm, although we conclude that there was

no error with respect to this aspect of West’s sentence. Possession of a dangerous

weapon is a specific offense characteristic for U.S.S.G. § 2D1.1, the applicable

guideline for the crimes to which West plead guilty. U.S.S.G. §1B1.3 sets forth

the relevant conduct that may be considered when sentencing a defendant under

the guidelines and explains the circumstances under which the special offense

characteristics apply. Section 1B1.3 provides, in relevant part, that “specific

offense characteristics . . . shall be determined on the basis of . . . all acts and

omissions committed, aided, abetted, counseled, commenced, induced, procured,


      3
        (...continued)
the government informant. Regardless of which report the district court relied on,
there were sufficient indicia of reliability with respect to either report to justify
the district court’s decision to use this evidence for sentencing purposes. See
U.S.S.G. § 6A1.3.

                                           -9-
or willfully caused by the defendant . . . that occurred . . . in the course of

attempting to avoid detection or responsibility for that offense.” Both the 1996

and 1998 police reports make clear that the shooting of the alleged informant was

an act procured by West in the course of attempting to avoid responsibility for the

drug possession and conspiracy crimes to which he had plead guilty. Thus, under

the plain language of § 1B1.3, West’s basic offense level could be increased by

two points based on Kiister’s possession of the firearm. Our review of the record

reveals no other possible error warranting discussion.

      For the reasons stated above, we AFFIRM the judgment of the district court

and GRANT counsel’s motion to withdraw.



                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




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