                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                April 25, 2006
                                        TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                                 Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 05-1174
                                                       (D. Ct. No. 03-CR-511-D)
 MICHAEL J. FRANKLIN,                                          (D. Colo.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-Appellant Michael J. Franklin pleaded guilty to one count of

fraudulently using a credit card to obtain things of value and aiding and abetting in

violation of 18 U.S.C. § 1029(a)(5) and § 2. He was sentenced to eighteen months’


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
incarceration. Mr. Franklin filed a timely notice of appeal.

       Mr. Franklin’s attorney, David C. Japha, filed an Anders brief and moved to

withdraw as counsel, arguing that Mr. Franklin has no non-frivolous arguments to raise

on appeal. See Anders v. California, 386 U.S. 738 (1967). Mr. Franklin filed a response

to Mr. Japha’s Anders brief. The Government declined to submit a brief. We exercise

jurisdiction under 28 U.S.C. § 1291, GRANT Mr. Japha’s motion to withdraw as counsel,

and DISMISS Mr. Franklin’s appeal.

                                   I. BACKGROUND

       Mr. Franklin was charged in a seven-count superseding indictment in which six of

the counts alleged fraud in connection with access devices and aiding and abetting in

violation of 18 U.S.C. § 1029(a)(5) and § 2 and one count alleged mail theft and aiding

and abetting in violation of 18 U.S.C. § 1708 and § 2. Mr. Japha filed a motion to

appoint a psychiatrist to evaluate Mr. Franklin’s competency to form the requisite mental

state to commit the crimes alleged in the indictment and to evaluate his competency to

stand trial. See 18 U.S.C. § 4241(a). The District Court granted the motion. The

psychiatrist concluded that although Mr. Franklin was suffering from mental illness, he

understood the charges against him and would be able to assist his attorney and

participate in his defense. The psychiatrist also concluded that Mr. Franklin was capable

of forming the requisite mental state to commit the crimes alleged in the indictment. Mr.

Franklin stipulated to the psychiatrist’s conclusions. Accordingly, the District Court


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found that Mr. Franklin failed to show, by a preponderance of the evidence, that he was

not competent to stand trial.

       Subsequently, Mr. Franklin entered into a plea agreement in which he agreed to

plead guilty to count one in exchange for the dismissal of the six remaining counts in the

indictment, the Government’s promise to recommend a departure for Mr. Franklin’s

timely acceptance of responsibility, see U.S. Sentencing Guidelines Manual (“U.S.S.G.”)

§ 3E1.1, and the Government’s recommendation that Mr. Franklin be sentenced at the

bottom of the applicable guidelines range unless the Court granted a downward departure

in addition to the acceptance of responsibility departure, see Fed. R. Crim. P. 11(c)(1)(B).

       At Mr. Franklin’s change of plea hearing he was advised of the possible penalties

he faced for the offense to which he was pleading, as well as his rights to counsel, to a

jury trial, to the presumption of innocence, to confront witnesses against him, to

compulsory process, to proof beyond a reasonable doubt, and to be free from compelled

self-incrimination. The District Court also explained that by accepting Mr. Franklin’s

plea, any appeal would be “limited to whether the Court imposed a lawful sentence.” Mr.

Franklin responded that he understood all his rights and the potential consequences of

pleading guilty.

       As a factual basis for the plea, the Government proffered that the evidence would

show that between November 2002 and February 2003, Mr. Franklin and his wife stole

pieces of mail that contained credit cards issued in the names of other individuals. They


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then used the credit cards, without the permission of their owners, to charge over $30,000

worth of merchandise. With respect to count one, the count to which Mr. Franklin agreed

to plead guilty, the Government proffered that the evidence would show that Mr. Franklin

and his wife stole a National Citibank VISA card from Kristine Vaughn’s mailbox and

used it to charge over $4,300 worth of merchandise. After a thorough plea colloquy, in

which the District Court confirmed that Mr. Franklin was entering the plea voluntarily

and not in response to any “force, threats, or promises (other than promises in the plea

agreement),” see Fed. R. Crim. P. 11(b)(2), the court entered Mr. Franklin’s guilty plea.

       The probation office prepared a presentence report (“PSR”), which, after including

a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a),

calculated Mr. Franklin’s adjusted offense level to be 12. It also calculated his criminal

history category to be IV based on prior convictions for driving while intoxicated, injury

to a child, and false reporting to authorities, and because Mr. Franklin committed the

instant offense while on probation. See U.S.S.G. § 4A1.1(d). This resulted in a

sentencing range of 21 to 27 months’ imprisonment and a $3,000 to $30,000 fine.

       Neither the Government nor Mr. Franklin filed any written objections to the PSR.

At sentencing, however, Mr. Franklin raised two motions for downward departure. First,

he argued that his criminal history category substantially overrepresents the seriousness of

his criminal history and his propensity to commit future crimes. See U.S.S.G.

§ 4A1.3(b)(1). To this end, he suggested that he was convicted of the previous crimes


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when he was not taking medication to alleviate his mental impairments and that when he

is not on the medication, he behaves in erratic and criminal ways. The District Court

agreed with the Government that a departure was not warranted on this basis because

nothing will keep Mr. Franklin from discontinuing his medication in the future, and that

in any event, his criminal history category did not overrepresent the seriousness of his

prior crimes.

       Second, Mr. Franklin argued that he played only a minor role in the crime. See

U.S.S.G. § 3B1.2(b). Specifically, he contended that he was manipulated by his wife to

commit the credit card fraud and therefore a downward departure was warranted. The

District Court disagreed, finding that Mr. Franklin and his wife were equally culpable in

the scheme.

       Nevertheless, the District Court, applying the 18 U.S.C. § 3553(a) sentencing

factors, determined that a sentence below the applicable guidelines range was reasonable

in this case and sentenced Mr. Franklin to 18 months’ imprisonment. He was also

ordered to pay $23,834.71 in accordance with the plea agreement.

       In his Anders brief, Mr. Japha contends that Mr. Franklin has only frivolous claims

on appeal because there is no viable challenge to Mr. Franklin’s guilty plea, Mr. Franklin

has waived his right to appeal any issue other than the District Court’s imposition of an

unlawful sentence, and the District Court’s sentence was reasonable. In his letter to the

court in response to Mr. Japha’s Anders brief, Mr. Franklin contends that he was mentally


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deficient at the time he entered into the plea agreement and alleges that his counsel was

complicit in a conspiracy to secure a guilty plea.

                                     II. DISCUSSION

       Although it is counsel’s duty to act as an advocate for his client and an officer of

the court, “if counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to withdraw.”

Anders, 386 U.S. at 744. Accordingly,

       [u]nder Anders, counsel must submit a brief to the client and the appellate
       court indicating any potential appealable issues based on the record. The
       client may then choose to submit arguments to the court. The Court must
       then conduct a full examination of the record to determine whether
       defendant’s claims are wholly frivolous. If the court concludes after such
       an examination that the appeal is frivolous, it may grant counsel’s motion to
       withdraw and may dismiss the appeal.

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at

744). After fully examining the record, Mr. Japha’s Anders brief, and Mr. Franklin’s

response, we conclude that there are no non-frivolous issues upon which Mr. Franklin

may base his appeal.

       Addressing the issue of Mr. Franklin’s plea agreement we find that Mr. Franklin

knowingly and voluntarily waived his right to appeal all matters except an unlawfully

imposed sentence. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (a

waiver of appellate rights contained in a plea agreement is binding so long as the scope of

the waiver covers the present appeal, the waiver was knowing and voluntary, and


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enforcement of the waiver would not result in a miscarriage of justice). Although the

District Court, after informing Mr. Franklin of his trial rights, did not explicitly remind

him that he would be waving those rights by entering a guilty plea, see Fed. R. Crim. P.

11(b)(1)(F), the District Court did explain that Mr. Franklin had a right not to plead guilty

and to go to trial; it further explained all the rights to which Mr. Franklin would be

entitled if he were to go to trial; and it also asked whether Mr. Franklin understood that if

the court accepts his plea, “there will not be a trial of any kind.” Mr. Franklin responded

that he understood. There is no “reasonable probability that, but for the error, he would

not have entered the plea,” and as such, Mr. Franklin’s substantial rights were not

affected by the omission. See United States v. Dominguez Benitez, 542 U.S. 74, 82

(2004). Accordingly, Mr. Franklin is not entitled to a reversal of his conviction. See id.

at 80 (when a Rule 11 issue is unpreserved, defendant is not entitled to reversal of

conviction unless he demonstrates plain error).

       Nevertheless, Mr. Franklin suggests in his letter to the Court that his capability to

understand the plea agreement was impaired because he was under the influence of

Haldol, an anti-psychotic medication. Competency is a factual finding set aside only for

clear error. United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000). “A

finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” Id. (quoting United States v. Verduzco-Martinez, 186 F.3d 1208, 1211


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(10th Cir.1999)). In support of this claim, Mr. Franklin states that he was not taking

Haldol when the court-ordered psychiatrist deemed him competent but that he was under

the influence of the medication at the time he entered the plea. Mr. Franklin’s statements

in his letter, however, are belied by his psychiatric report, which reveals that he was in

fact taking Haldol at the time of his examination. Furthermore, Mr. Franklin’s suggestion

that his medication diminished his mental status to the point that he was incompetent is

contradicted by his own statements in court, where he said that his medication “makes

[him] think and behave rationally” and that because of his medication he “can now

function in everyday life.” As such, the District Court did not commit clear error in

finding that Mr. Franklin was competent.

       In sum, the record reveals that any argument counsel could make as to whether Mr.

Franklin knowingly and voluntarily entered into a plea agreement that contained a waiver

of appellate rights, except the right to appeal an unlawful sentence, would be frivolous.

See Hahn, 359 F.3d at 1325. Similarly, there are no non-frivolous arguments that

enforcement of the plea agreement in this case would result in a fundamental miscarriage

of justice. Id.

        Next we must address Mr. Franklin’s sentence, as this is the only claim as to

which Mr. Franklin did not waive his right to appeal. After the Supreme Court’s decision

in United States v. Booker, 543 U.S. 220, 262 (2005), we review for reasonableness the

ultimate sentence imposed. We find that Mr. Franklin’s sentence was indeed reasonable.


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       At sentencing, Mr. Franklin did not object to the PSR but argued that the District

Court should have departed downward because he played a minor role in the commission

of the crime and because his criminal history category overstates the seriousness of his

criminal history and his propensity to commit future crimes. The District Court explained

why it declined to depart downward on these bases. Nonetheless, the court, taking into

account the sentencing factors in 18 U.S.C. § 3553(a), found that a sentence below the

applicable guidelines range of 21–27 months’ imprisonment was appropriate in this case.

It ultimately sentenced Mr. Franklin to eighteen months’ incarceration. Its decision was

both “reasoned and reasonable.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.

2006) (stating that a sentence’s reasonableness depends on both the length of the sentence

and the method by which the sentence is calculated).

       Finally, to the extent Mr. Franklin suggests that he received ineffective assistance

of counsel because his attorney engaged in a conspiracy with the Government to

forcefully medicate him in order to coerce him to plead guilty, such claim must be raised

on collateral review, not on direct appeal. See Calderon, 428 F.3d at 931 (stating that

ineffective assistance of counsel claims are “presumptively dismissible, and virtually all

will be dismissed” when raised on direct appeal).

                                   III. CONCLUSION

       We have carefully reviewed the record and Mr. Franklin’s arguments and have

identified no non-frivolous basis for an appeal. We therefore GRANT Mr. Franklin’s


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counsel’s request to withdraw and we DISMISS this appeal. Appellant’s motion for

appointment of counsel is DENIED.



                                       ENTERED FOR THE COURT,


                                       Deanell Reece Tacha
                                       Circuit Judge




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