                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                       November 30, 2017
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 17-7028
                                                (D.C. No. 6:16-CR-00071-JHP-1)
RICHARD DALE HENRY,                                       (E.D. Okla.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Richard Henry appeals following his conviction for being a felon in possession

of a firearm. His counsel moves to withdraw in a brief filed pursuant to Anders v.

California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291, we

grant counsel’s motion to withdraw and dismiss the appeal.

                                          I

      A jury found Henry guilty of being a felon in possession of a firearm. His

Presentence Investigation Report (“PSR”) recommended a base offense level of 22

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
because Henry’s offense involved a semiautomatic weapon that could be used with a

high-capacity magazine and Henry had previously been convicted of second-degree

murder, a crime of violence. The PSR also recommended a criminal history category

of III, based on the murder conviction and a possession of marijuana offense. Henry

also had prior convictions for first-degree murder, burglary, and theft, which were

too old to be counted in his criminal history score.

      Henry’s trial counsel objected to the 1994 second-degree murder conviction

being characterized as a crime of violence, but the district court overruled the

objection. The government requested an upward variance or departure, arguing that

Henry’s older convictions demonstrated that he posed a danger to the community and

that their exclusion from the criminal history score meant that the score did not

adequately reflect this danger. Although the district court declined to vary, it

departed upward from a criminal history category of III to a criminal history category

of V, resulting in an advisory range of 77 to 96 months. The court sentenced Henry

to 96 months’ imprisonment. Henry timely appealed.

                                           II

      An attorney who determines that an appeal would be wholly frivolous after

conscientiously examining the case may advise the court of this conclusion and

request permission to withdraw. Anders, 386 U.S. at 744. The attorney must file a

brief noting any potentially appealable issues and provide the brief to the defendant,

who may then submit a pro se brief. Id. If the court determines that any appeal



                                           2
would be frivolous upon careful examination of the record, it may grant the request

to withdraw and dismiss the appeal. Id.

      Defense counsel’s Anders brief notes three potentially appealable issues:

(1) whether the evidence presented at trial was sufficient to support Henry’s

conviction; (2) whether the sentence was reasonable; and (3) whether Kansas second-

degree murder qualifies as a crime of violence. We conclude that argument on any of

these issues would be frivolous.

      To convict Henry of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1), the government had to prove that he is a convicted felon who

knowingly possessed a firearm, and that the firearm moved in interstate commerce.

United States v. Morales, 758 F.3d 1232, 1235 (10th Cir. 2014). Henry stipulated

that he was a convicted felon and that the gun at issue had moved in interstate

commerce. Additionally, a pawn shop owner testified that Henry sold him a firearm.

This evidence was sufficient to support the conviction.

      We also conclude that Henry’s sentence was both procedurally and

substantively reasonable. The district court permissibly increased Henry’s criminal

history category by two levels based on an underrepresented criminal history. See

United States v. Pettigrew, 468 F.3d 626, 641 (10th Cir. 2006) (affirming upward

departure under similar circumstances); U.S.S.G. § 4A1.3(a)(1) (allowing for upward

departure for substantially underrepresented criminal history). Henry’s sentence of

96 months was also a valid exercise of the district court’s discretion. See United



                                          3
States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (noting deferential

substantive reasonableness review).

      Finally, Henry’s Kansas second-degree murder conviction clearly qualifies as

a crime of violence. Under the enumerated offense clause of U.S.S.G. § 4B1.2,

murder is a crime of violence. Id. And Kansas second-degree murder corresponds

with the generic definition of murder. See United States v. Castro-Gomez, 792 F.3d

1216, 1217 (10th Cir. 2015) (generic murder requires “at least reckless and depraved

indifference to serious dangers posed to human life”); Kan. Stat. § 21-3402 (1993).

      Henry also filed a pro se brief advancing several arguments. He challenges the

factual bases of his prior convictions; contends that a prior charge noted in the PSR,

but immaterial to the sentence calculation lacked a factual basis; argues that he had

not endangered society after being released from prison most recently; and claims

that he immediately sold the firearm at issue in this case after inheriting it. None of

these arguments, however, constitute a ground for reversal. In the course of federal

sentencing proceedings, a defendant may not collaterally attack prior convictions

unless they were obtained in violation of the right to counsel. Custis v. United

States, 511 U.S. 485 (1994). The district court did not clearly err in concluding that

Henry was a danger to the community. And Henry’s arguments about the reasons for

his possession of the firearm do not undermine the conclusion that he knowingly

possessed it.




                                           4
                                      III

     Because we are not presented with any meritorious grounds for appeal, we

GRANT counsel’s request to withdraw and DISMISS the appeal.


                                        Entered for the Court


                                        Carlos F. Lucero
                                        Circuit Judge




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