                                                                   FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                             September 8, 2009
                             TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                    No. 09-3050
 v.                                                  (D. Kansas)
 KAPPELLE SIMPSON-EL,                    (D.C. No. 6:07-CR-10161-MLB-1)

             Defendant-Appellant.



                          ORDER & JUDGMENT *


Before HENRY, Chief Judge, HARTZ, and O’BRIEN, Circuit Judges. **



      A jury convicted Kappelle Simpson-El on several charges related to

his participation in a scheme to steal new vehicles, replace their vehicle

identification numbers (VINS), and sell them. Mr. Simpson now appeals his

72-month sentence and also complains of ineffective assistance of counsel.


      *
       This order and judgment is not binding precedent, except under the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.
      **
        After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of
material assistance in the determination of this appeal. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.
Mr. Simpson’s attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), asking to withdraw because, after examining the

record and the law, he determined that “the appeal presents no legally non-

frivolous questions.” Aplt’s Br. at 5. In response to the motion, Mr.

Simpson sent a letter to the court that we have construed as a motion for

appointment of new counsel. We agree with Mr. Simpson’s attorney that his

appeal presents no non-frivolous issues. Exercising jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, we grant counsel’s motion to withdraw,

deny Mr. Simpson’s request for the appointment of counsel, and dismiss the

appeal.

                              I. BACKGROUND

      In August of 2007, Mr. Simpson was charged in an indictment that

alleged he and four others stole cars, mainly Cadillacs, from car lots in

Oklahoma and Missouri, then took the cars to Wichita, Kansas, where they

attempted to replace the VINS in order to sell the vehicles on the internet

and by other means. A jury convicted Mr. Simpson on one count of

possession of a vehicle with an altered VIN, seven counts of removal of a

VIN from a vehicle, five counts of disposing of a stolen vehicle, eight

counts of transportation of a stolen vehicle, one count of transportation of

stolen goods, and three counts of wire fraud.

      At sentencing, the district court determined Mr. Simpson’s applicable

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guideline range to be 100-125 months. The district court varied downward

from that range, sentencing him to 60 months’ imprisonment on the VIN

removal charges and 72 months on all other counts, to run concurrently.

      Mr. Simpson’s attorney notes that in the appeal Mr. Simpson wishes to

continue to pursue his objections to the presentence report, which the

district court overruled. In particular, Mr. Simpson objected to three

enhancements to his base offense level for: (1) having a supervisory role to

one of the co-conspirators; (2) engaging in an organized scheme to sell

stolen vehicles; and (3) being a person in the business of receiving and

selling stolen property. Mr. Simpson also objected to the addition of two

criminal history points for committing a portion of the instant offense while

still under a criminal justice sentence. Counsel indicates two other

arguments Mr. Simpson could raise on appeal: that Mr. Simpson should have

received credit for acceptance of responsibility and for cooperation with the

government and that Mr. Simpson’s below-guideline sentence was

substantively unreasonable in light of the factors set forth in 18 U.S.C.

§3553(a).

      Mr. Simpson, in response to his counsel’s Anders brief, sent a letter to

this court. He advised us that his attorney has not satisfactorily

communicated with him and that he wants to argue that “the information

used to calculate [his] criminal history score and offense level w[as]

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inaccurate.” Ltr. from Mr. Simpson, at 1 (Jul. 28, 2009). Specifically, he

challenges the district court’s determination that he was on probation.

Additionally, Mr. Simpson suggested that he wishes to argue ineffective

assistance of counsel.

                                II. DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s counsel “finds

[the defendant’s] case to be wholly frivolous, after a conscientious

examination of it, [he] should so advise the court and request permission to

withdraw.” 386 U.S. at 744. Counsel must submit to both the court and his

client a “brief referring to anything in the record that might arguably

support the appeal.” Id. The defendant may then “raise any points that he

chooses.” Id. The United States does not object to counsel’s withdrawal

and has elected not to file a response.

      We must fully examine all the proceedings to determine whether Mr.

Simpson’s appeal is frivolous. Id. If we find that the appeal is frivolous,

we “may grant counsel’s request to withdraw and dismiss the appeal.” Id.

“On the other hand, if [we] find[] any of the legal points arguable on their

merits (and therefore not frivolous) [we] must, prior to decision, afford the

indigent [defendant] the assistance of counsel to argue the appeal.” Id.




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A. Mr. Simpson’s sentence was procedurally and substantively
reasonable.

      “We review sentences for reasonableness under a deferential abuse of

discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th

Cir.), cert. denied, 129 S. Ct. 428 (2008); see United States v.

Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008) (“Appellate courts

review sentencing decisions first for procedural reasonableness, and then

for substantive reasonableness.”). Our review of the PSR and the

sentencing hearing transcript confirms the sentence was procedurally

reasonable. There is no indication that the district court incorrectly

calculated the Guidelines sentence or that it considered the Guidelines to be

mandatory. See id. Further, the court clearly applied the factors in 18

U.S.C. § 3553(a), did not rely on clearly erroneous facts, and adequately

explained the sentence. See Haley, 529 F.3d at 1311. The court addressed

each of Mr. Simpson’s objections, and found facts that supported its

application of adjustments to Mr. Simpson’s base offense level.

      The sentence is also substantively reasonable “given the totality of the

circumstances in light of the 18 U.S.C. § 3553(a) factors.” See id. The

record establishes that the district court considered the relevant sentencing

factors outlined at 18 U.S.C. § 3553(a) and ultimately varied downward.




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B. Mr. Simpson may argue his counsel was ineffective in post-conviction
procedures.

      Mr. Simpson additionally suggests he wishes to argue his counsel was

ineffective and that he deserves new counsel. To the extent Mr. Simpson

takes issue with counsel’s effectiveness, such claims are ordinarily brought

on collateral review, not on direct appeal. United States v. Brooks, 438 F.3d

1231, 1242 (10th Cir. 2006); see Massaro v. United States, 538 U.S. 500,

503-04 (2003). This is “to ensure that we are provided with a developed

factual record of the events.” Brooks, 438 F.3d at 1242. Consequently, we

dismiss Mr. Simpson’s claims of ineffective assistance of counsel without

prejudice to his ability to raise this issue on collateral review. See United

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

such claims “presumptively dismissible”).

                             III. CONCLUSION

      Having fully examined the record in this case, we agree with Mr.

Simpson’s counsel that the appeal presents no legally non-frivolous

questions. We therefore DENY Mr. Simpson’s request for appointment of

new appellate counsel. See United States v. Delacruz-Soto, 414 F.3d 1158,

1168 n.6 (10th Cir. 2005) (observing that counsel’s “mere filing of [an

Anders] brief does not provide a defendant with the right to the appointment




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of a new attorney”). We also GRANT counsel’s motion to withdraw, and

DISMISS the appeal.


                                         Entered for the Court,


                                         Robert H. Henry
                                         Chief Judge




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