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

                                                                          July 12, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                      PATRICK FISHER
                                                                                Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 04-5127
                                                 (D.C. No. CR 04-CR-46-EA)
 ALAN RAY CAMPBELL,
                                                        (N.D. Okla.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Alan Ray Campbell pled guilty to two charges of bank robbery in violation

of 18 U.S.C. § 2113(a). After enhancing his sentence two levels for taking

property from a financial institution, U.S.S.G. § 2B3.1(b)(1), two levels for

making a threat of death, U.S.S.G. § 2B3.1(b)(2)(F), and two levels for a

multiple-count adjustment, U.S.S.G. § 3D1.4, and reducing his sentence three

levels for acceptance of responsibility, U.S.S.G. § 3E1.1, the district court


      *
        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judgment is not binding precedent, except under the doctrines of law of the case,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. 36.3.
determined that the offense level was 23 with a Guidelines range of 57-71

months’ imprisonment. The court imposed sentence in the middle of the range at

64 months. Campbell’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and moved for leave to withdraw as counsel. We GRANT

counsel’s motion to withdraw and DISMISS the appeal.

      If counsel conscientiously examines a case and determines that any appeal

would be wholly frivolous, Anders authorizes counsel to so advise the court and

request permission to withdraw. 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. The client may then choose to offer any

argument to the court. If the court, upon completely examining the record,

determines that the appeal is in fact frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal. Id. at 744. In the present case, counsel, acting

pursuant to Anders, provided Campbell with a copy of his appellate brief and

Campbell has not filed a pro se brief raising any argument.

      Counsel’s Anders brief identifies two potentially appealable issues. First,

before the district court, Campbell contended that the facts supporting his

enhancement for making a threat of death were not established by the plea. The

transcript of the plea colloquy reveals the following exchange:

      Defendant: Okay. On March the 5th, I went to a bank in Sand Springs and
                 give the teller a note and took the money.

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      Court:     What did the note say?
      Defendant: Put unbundled 100s and 50s in an envelope, no dye pack, no
                 alarm. I have a gun.
      ***
      Court:     All right. And you knew that that would be intimidating to the
                 teller, didn’t you?
      Defendant: Oh, yes.

The district court concluded that, as a matter of law, the statement “I have a gun”

constitutes a threat of death for purposes of a § 2B3.1(b)(2)(F) enhancement and

cited several cases in support. See, e.g., United States v. Arevalo, 242 F.3d 925,

928 (10th Cir. 2001) (statement “I have a gun and am willing to use it” constitutes

a threat of death); United States v. Carbaugh, 141 F.3d 791, 794 (7th Cir. 1998)

(“I have a gun” is a threat of death); United States v. Figueroa, 105 F.3d 874, 880

(3d Cir. 1997) (enhancement “applies to a defendant who announces in the course

of a robbery, either by word or action, that he has a gun”); United States v.

Winbush, 296 F.3d 442, 443 (6th Cir. 2002) (“a robber’s note saying ‘I have a

gun’ constitutes a threat of death under § 2B3.1(b)(2)(F), warranting a two-level

enhancement”). We agree that, given the weight of authority, any appeal of this

issue would be frivolous.

      The second potentially appealable issue would arise under United States v.

Booker, 125 S. Ct. 738 (2005). Campbell argued below that failure to charge the

“threat of death” enhancement in the indictment amounted to a violation of

Blakely v. Washington, 124 S. Ct. 2531 (2004). Because the Court in Booker


                                         3
“did not hold that facts supporting sentencing factors had to be included in the

indictment,” United States v. Glover, No. 04-5150,       F.3d      (10th Cir.

2005), we conclude that appeal of this issue would be frivolous.

      Counsel does not identify in his Anders brief an appealable issue arising

from Booker’s remedial holding. Because Campbell declined to file a pro se

brief, he does not argue that his sentence is invalid under Booker. Nevertheless,

Campbell did raise a Blakely issue below with respect to the indictment. Upon

our independent review of the record, we determine that an appeal based on

Booker’s remedial holding would be frivolous. Because the district court utilized

the Guidelines in a mandatory fashion, it committed non-constitutional Booker

error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.

2005) (en banc).

      The government contends that any non-constitutional Booker error in this

case would be harmless. Given that the court imposed sentence in the middle of

the Guideline range after hearing argument from both sides, we agree, and

conclude that “the record demonstrates that the district court would impose the

same sentence even under an advisory Guidelines system.” United States v.

Lawrence, 405 F.3d 888, 908 (10th Cir. 2005). Indeed, upon the government’s

recommendation that Campbell receive a sentence in the middle of the Guidelines

range, as opposed to the top, the sentencing judge stated, “well, you take me by


                                          4
surprise.” The Assistant United States Attorney responded: “I suppose

reasonable minds could differ and that it could go to the top . . . [but] my sense is

that that’s a reasonable sentence. And I’ll persist in it, Judge. I understand

what’s being said here, but I’ll persist in it.” The judge then explained her

decision to sentence in the middle of the range by stating: “Due to the

defendant’s history of bank robberies and continued substance abuse issue, the

Court will give a sentence in the middle of the guideline range and does so

primarily upon the recommendation of the assistant United States attorney.” The

record clearly demonstrates that even absent mandatory application of the

Guidelines, Campbell would not have received a lower sentence. We therefore

determine that any appeal on Booker grounds would be frivolous.

      Because Mr. Campbell has no meritorious grounds for appeal, we GRANT

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



                                               ENTERED FOR THE COURT


                                               Carlos F. Lucero
                                               Circuit Judge




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