                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      January 18, 2006
                      UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 05-8010
                                                 (D.C. No. 04-CR-110-D)
 WILLIAM KENT CARPENTER, SR.,                           (D. Wyo.)
 aka B.K. Carpenter,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      William Carpenter pleaded guilty to possession with intent to distribute

methamphetamine and possession of a firearm in furtherance of a drug trafficking

crime. On direct appeal, his court-appointed attorney has filed an Anders brief

and a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738



      *
        After examining appellant’s brief and the 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) 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
(1967). Mr. Carpenter has filed pro se briefs asking that his convictions be set

aside due to ineffective assistance of counsel and making various other claims.

We agree with counsel that there are no meritorious issues to be raised on appeal,

grant counsel’s motion to withdraw, and dismiss this appeal.

                                I. BACKGROUND

      Police procured a search warrant for the home of Mr. Carpenter, an

American Indian enrolled in the Northern Arapaho tribe, based on evidence that

he was selling methamphetamine from his home. In executing the search warrant,

officers discovered 31.26 grams of methamphetamine, some of which was

packaged for distribution, and a loaded .44 Magnum. Pursuant to a plea

agreement, Mr. Carpenter pleaded guilty to possession with intent to distribute

methamphetamine, a crime under 21 U.S.C. § 841(a)(1) & (b)(1)(C), and to

possession of a firearm in relation to a drug trafficking crime, a crime under 18

U.S.C. § 924(c)(1)(A). The district court sentenced Mr. Carpenter to a term of 87

months’ imprisonment — 60 months for the firearm count and 27 months for the

drug count.

      Mr. Carpenter sought to appeal. However, his attorney filed an Anders

brief and moved to withdraw as counsel, stating that his client’s grounds for

appeal — that “[t]he United States of America does not have jurisdiction over a

Native American engaging in conduct on Tribal lands” — is clearly without merit.


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Mr. Carpenter thereafter filed two pro se briefs asking that his conviction be set

aside for ineffective assistance of counsel and making various other claims.

                                II. DISCUSSION

      As stated in Anders v. California, if appointed counsel finds

      [a defendant’s] case to be wholly frivolous, after a conscientious
      examination of it, he should so advise the court and request permission
      to withdraw. . . . A copy of counsel’s brief should be furnished the
      indigent and time allowed him to raise any points that he chooses; the
      court—not counsel—then proceeds, after a full examination of all the
      proceedings, to decide whether the case is wholly frivolous. If it so
      finds it may grant counsel’s request to withdraw and dismiss the appeal
      insofar as federal requirements are concerned . . . .

Anders, 386 U.S. at 744. We therefore examine the grounds of appeal raised in

both counsel’s Anders brief and Mr. Carpenter’s pro se briefs to determine

whether this case should be dismissed and counsel allowed to withdraw.

      A. Jurisdiction over Native American conduct on tribal lands

      Counsel’s Anders brief only notes one ground for appealing: the claim that

the United States lacks jurisdiction over conduct by Native Americans on tribal

lands. We agree that this claim is meritless because general federal laws, such as

the federal drug and firearm laws, apply to Native Americans on tribal land just as

readily as to any other person. See United States v. Brisk, 171 F.3d 514, 520–21

& 522 n.6 (7th Cir. 1999) (citing cases); United States v. Blue, 722 F.2d 383, 386

(8th Cir. 1983) (“In limiting tribal punishment powers to relatively mild penalties,




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Congress must have assumed that Indians on reservations would generally be

subject . . . to federal criminal sanctions which apply to all persons.”).

      B. Ineffective assistance of counsel

      In his pro se briefs, Mr. Carpenter asserts multiple grounds for reversing

his conviction due to ineffective assistance of counsel. Because Mr. Carpenter is

proceeding pro se, we construe his pleadings liberally. See Haines v. Kerner, 404

U.S. 519, 520-21 (1972). We note, however, that “[i]neffective assistance of

counsel claims should be brought in collateral proceedings, not on direct appeal.”

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).

Bringing such claims on collateral review is preferable because it enables

development of a factual record, allows the district court to address the question

in the first instance, and permits counsel accused of deficient performance to

explain their reasoning and actions. Id. Therefore, “[ineffective assistance]

claims brought on direct appeal are presumptively dismissible, and virtually all

will be dismissed.” Id. With these principles in mind, we address each of Mr.

Carpenter’s claims.

      Mr. Carpenter’s first claim is that his attorney was ineffective for not

seeking to suppress evidence obtained from the search of Mr. Carpenter’s

residence. Mr. Carpenter asserts both that the affidavit in support of the search

warrant was false and that the officers violated the “knock and announce” rule.


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However, we agree with the government that this claim must be dismissed due to

an inadequate record — because Mr. Carpenter pleaded guilty and did not seek to

suppress the fruits of the search, there is no evidence in the record as to how the

search warrant was executed or whether there was factual support for the affidavit

and search warrant. If this claim is to be addressed at all, it must be on collateral

review.

      Mr. Carpenter also claims that his counsel was ineffective for failing to

bring Apprendi v. New Jersey, 530 U.S. 466 (2000), to the district court’s

attention. Apprendi held that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490. However, Apprendi is irrelevant in

this case because Mr. Carpenter was sentenced well below the 20-year statutory

maximum for his drug offense, see 21 U.S.C. § 841(b)(1)(C), and at the statutory

minimum for his firearm offense, see 18 U.S.C. § 924(c)(1)(A). Moreover,

submission to a jury and proof beyond a reasonable doubt are not required for

facts that are stipulated to in the guilty plea or admitted by the defendant. See

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 756 (2005). Because Mr.

Carpenter’s sentence was based entirely on facts admitted to in his plea

agreement, there was no violation of Apprendi and failure to raise an Apprendi

argument was not ineffective assistance.


                                         -5-
      Mr. Carpenter also claims that his counsel was ineffective for failing to

argue that under Bailey v. United States, 516 U.S. 137 (1995), Mr. Carpenter

should not have been charged with a firearm offense. Bailey held that to be

convicted for “use” of a firearm under 18 U.S.C. § 924(c), a defendant had to

have “actively employed” the firearm. 516 U.S. at 147. However, Bailey is

inapplicable because Mr. Carpenter was convicted under the statute as amended

after Bailey. As amended, § 924(c) allows conviction for “possess[ion]” of a

firearm in furtherance of a drug crime, not just “use” of the firearm. See 18

U.S.C. § 924(c)(1)(A). Because Mr. Carpenter was convicted under the amended

statute, failure to raise an argument under Bailey was not ineffective assistance.

      Next, Mr. Carpenter argues that his counsel was ineffective for failing to

challenge the presentence report’s assessment of one criminal history point based

on a 1994 DUI conviction. However, to show ineffective assistance, Mr.

Carpenter must prove that he was prejudiced by the alleged error. Strickland v.

Washington, 466 U.S. 668, 687 (1984). The assessment of one criminal history

point put Mr. Carpenter in Criminal History Category I — the same category he

would have been in if he had no criminal history points. See U.S. Sentencing

Guidelines Manual § 5A (2003). He thus cannot show prejudice from the alleged

error; thus, there was no ineffective assistance of counsel.




                                         -6-
      Mr. Carpenter also argues that his counsel was ineffective for failing to

inform him that drugs for personal use could not be used in calculating his

sentence for possession with intent to distribute methamphetamine. However, the

rule is that although “drugs possessed for personal consumption cannot be

considered when determining the statutory sentencing range pursuant to 21 U.S.C.

§ 841(b), . . . such drugs can be considered when determining the sentencing

range under the more expansive Sentencing Guidelines.” United States v. Asch,

207 F.3d 1238, 1240 (10th Cir. 2000). The amount of methamphetamine to which

Mr. Carpenter stipulated (31.26 grams) was too small to raise the statutory

sentencing range, see 21 U.S.C. § 841(b)(1); thus, he would have been in the

same statutory sentencing range even if almost all of the 31.26 grams of

methamphetamine was for personal use. This alleged error therefore did not

prejudice Mr. Carpenter, and we reject his claim of ineffective assistance.

      Finally, Mr. Carpenter claims that his counsel was ineffective for failure to

keep him appraised of the facts of his case or give him copies of legal materials

from the court. The Supreme Court has stated that “keep[ing] [a] defendant

informed of important developments in the course of the prosecution” is one of

counsel’s “basic duties.” Strickland, 466 U.S. at 688. However, we dismiss this

claim due to an inadequate record — nothing in the record shows what counsel

did or did not give Mr. Carpenter copies of, and counsel has not had a chance to


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respond to Mr. Carpenter’s claim. We therefore decline to address it on direct

review. See Galloway, 56 F.3d at 1240.

      C. Other claims

      Mr. Carpenter makes various other claims, all of which we find to be

without merit. First, he alleges corruption by the tribal court judge who signed

the search warrant for his residence. However, he does not explain how this

corruption could have affected his guilty plea and/or his sentence; we therefore

dismiss this claim.

      Next, Mr. Carpenter cites to the Second Amendment right to bear arms,

apparently arguing that his firearm conviction infringed upon this right.

However, he waived any such claim by unconditionally pleading guilty to the

firearm charge. 1

      Third, Mr. Carpenter claims that prosecution in both federal court and tribal

court for drug counts arising out of the same activity violates his Fifth

Amendment right to be free from double jeopardy. His guilty plea has waived

this claim. In addition, because he asserts that the tribal drug counts “were stayed


      1
       In addition, “we repeatedly have held that to prevail on a Second
Amendment challenge, a party must show that possession of a firearm is in
connection with participation in a ‘well-regulated’ ‘state’ ‘militia.’” United
States v. Parker, 362 F.3d 1279, 1283 (10th Cir.), cert. denied, 543 U.S. 874
(2004). Mr. Carpenter claims only that the firearm was for “protection of my
family, home and property”; thus, he could not prevail on a Second Amendment
claim even if not waived.

                                         -8-
pending federal prosecution,” his federal convictions cannot amount to double

jeopardy since there has been no prior instance of jeopardy. Mr. Carpenter’s

claim thus does not cast doubt on the federal convictions we are reviewing here.

      Fourth, Mr. Carpenter claims discrimination in the enforcement of the drug

laws. Specifically, he claims that a certain “White man” arrested on the

reservation for possession of drugs received a lesser sentence than Mr. Carpenter;

he claims that he told his attorney about the disparity but that his attorney made

no effort to present that information to the court. Similarly, Mr. Carpenter claims

that the reservation police are prejudiced against him and that they have arrested

him twenty-five times for over fifty charges that were eventually dismissed.

Finally, Mr. Carpenter cites to the Fourteenth Amendment, apparently in

connection with the police department’s failure to properly address a claim of

arson on his home and theft/vandalizing in his “auto-truck salvage yard” since his

incarceration. To the extent that these claims do not relate to his current

conviction, they are irrelevant to this appeal. To the extent that Mr. Carpenter

makes a claim of ineffective assistance, there is an insufficient factual record for

us to address that claim on direct appeal. See Galloway, 56 F.3d at 1240. And, to

the extent that he claims arbitrary enforcement of the law or violation of the

Fourteenth Amendment in this case, Mr. Carpenter waived those claims by

pleading guilty. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003)


                                         -9-
(“[I]t is well established that a voluntary and unconditional guilty plea waives all

non-jurisdictional defenses.”). We thus dismiss all these claims.

      Fifth, Mr. Carpenter claims that the United States has failed in its role as

guardian of the American Indians. He claims that he had to use illegal drugs for

pain relief since the United States failed to provide him adequate medical care.

Similarly, he claims that the United States should have set up a drug court or

narcotics program and that failure to do so was a failure of guardianship. We

conclude that even if these claims had merit, Mr. Carpenter waived them by

pleading guilty to the charges at issue in this case. See Salazar, 323 F.3d at 856.

      Finally, Mr. Carpenter cites to numerous Tenth Circuit and Supreme Court

cases. We have reviewed these cases and find nothing that would cast doubt on

Mr. Carpenter’s convictions or sentence.

                                III. CONCLUSION

      For the foregoing reasons, we find that Mr. Carpenter’s appeal is wholly

without merit, GRANT counsel’s motion to withdraw, and DISMISS this appeal.

We have received Mr. Carpenter’s untimely motion for an extension of time in

which to file a reply brief, but because that motion is substantially out of time,

and given our disposition of this case, we DENY the motion.



                                       ENTERED FOR THE COURT


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David M. Ebel
Circuit Judge




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