                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     February 28, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                         No. 06-8042
 v.                                                (D.C. No. 05-CR-236-J)
                                                          (D . W yo.)
 DARRYL W AYN E POTTER,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Defendant-Appellant Darryl W ayne Potter appeals from his conviction and

sentence for possession with intent to distribute methamphetamine in violation of

21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). M r. Potter was convicted following a

jury trial on M arch 7, 2006. He was fined $1500 and sentenced to 135 months of

imprisonment followed by 78 months of supervised release.



      *
        This order and judgment is not binding precedent, except under the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 cause is therefore ordered submitted without oral argument.
      M r. Potter filed his timely notice of appeal on June 2, 2006. In lieu of an

appellate brief, M r. Potter’s appointed counsel forthrightly filed a motion to

withdraw and brief in support thereof. See Anders v. California, 386 US. 738

(1967). In the Anders brief, M r. Potter’s counsel raised four issues: (1) the

district court’s denial of a motion to suppress certain evidence seized from M r.

Potter’s vehicle and person, (2) the sufficiency of the evidence, (3) the

constitutionality of M r. Potter’s sentence under Blakely v. W ashington, 542 U.S.

296 (2004), and (4) the reasonableness of M r. Potter’s sentence under United

States v. Booker, 543 U .S. 220 (2005). M r. Potter subsequently filed a response

to the Anders brief which argued ineffective assistance of counsel. Our

jurisdiction arises under 28 U.S.C. § 1291 and 18 U .S.C. § 3742(a). Because

every ground for appeal asserted by the defendant is frivolous, we dismiss the

appeal and grant counsel’s motion to withdraw. See United States v. Calderon,

428 F.3d 928, 930, 933 (10th Cir. 2005).



                                     Background

      On August 29, 2005, the manager of a truckstop near Fort Bridger,

W yoming alerted law enforcement that a man had shoplifted a radar detector

valued at $249. The manager reported that the man left the truckstop driving a

late 1970s model green Ford pickup with a camper shell on it. The manager also

provided a description of the vehicle’s license plate and general direction of

                                         -2-
travel.

          W yoming Highway Patrol Trooper M ichael Adams subsequently heard a

“be-on-the-look-out”(BOLO) broadcasted from the local sheriff’s department.

The BOLO indicated that a blond-haired male, aged 30-40 years old, had

allegedly shoplifted a radar detector from the truckstop and was traveling

eastbound on Interstate 80 in a green Chevy pickup with a spray-painted black

camper shell. Trooper Adams drove his cruiser to the top of a hill on Interstate

80 some distance east of the truckstop. There Trooper Adams waited, his cruiser

not readily visible to oncoming traffic. After approximately seven minutes,

Trooper Adams spotted a vehicle matching the description given on the BO LO

traveling from the east. He clocked the green pickup speeding at 79 miles per

hour in a 75 mile per hour zone.

          Trooper Adams then pursued the pickup. Trooper Adams testified that

after he and the pickup passed a semi-trailer, there was no traffic for

approximately four hundred yards. Trooper Adams observed that the pickup was

turquoise, and he attempted to read its license plate information. At this point,

while Trooper Adams’s cruiser was somewhat behind the pickup and in the left

lane, he observed a white object fly out of the passenger side of the pickup.

Trooper Adams assumed that the white object was the radar detector, and he

carefully observed where it landed, noting its distance from an emergency cross-

over. Trooper Adams specifically testified that there was no possibility that the

                                         -3-
white object came from anywhere other than the pickup because there were no

other vehicles near the pickup, except the semi-trailer that it had just passed.

      Trooper Adams then turned on the cruiser’s overhead lights and attempted

to stop the turquoise pickup. The pickup continued east on Interstate 80 for

another mile until it pulled over and stopped at the top of an exit ramp. Trooper

Adams approached the pickup and ordered the driver out. Trooper Adams

handcuffed the driver, whom he subsequently identified as M r. Potter. Trooper

A dam s took M r. Potter to the passenger side of his cruiser and patted him down

for weapons. During the pat down, Trooper Adams felt an object he suspected

might be a pocket knife in M r. Potter’s pocket. Trooper Adams subsequently

removed a lighter and a small, plastic bottle that Trooper Adams identified as a

“bullet”– a container used to dispense various controlled substances in powder

form. Trooper Adams then secured M r. Potter in the back of the cruiser. At this

time, Trooper A dams told M r. Potter that he was not under arrest.

      Trooper Adams then searched the pickup where he found a radar detector

under the driver’s seat. He also found a set of digital scales in the glove box.

Local sheriff’s deputies and another trooper, M ichael Felicetti soon arrived.

W hile the deputies watched M r. Potter, Troopers Adams and Felicetti drove back

to w here Trooper A dams observed the white object fly out of the pickup. The tw o

troopers eventually found a white grocery bag lying down on the grass just past

the shoulder of the highway, near the location where Trooper Adams thought the

                                         -4-
white object had landed. Inside the grocery bag was a clear plastic food storage

bag containing a w hite substance. W ithin two feet of the grocery bag were two

packages wrapped in black electrical tape. The grocery bag and packages had

only a light layer of dust on them, while other items in the grass were caked in

mud and dirt.

      Because the troopers did not have plastic gloves, they handled the items

with their bare hands. In a field test, the white substance in the food storage bag

tested positive for methamphetamine. The troopers then returned to the scene of

the traffic stop and advised M r. Potter that he was under arrest. Trooper Adams

was then able to confirm that the radar detector found in the pickup was of the

same make and model shoplifted from the truckstop. The troopers then conducted

an inventory search of the pickup and transported M r. Potter to a local jail. At

the jail, while performing an inventory search of M r. Potter, a sheriff’s deputy

recovered a plastic-wrapped chunk of methamphetamine from M r. Potter’s person.

      Prior to trial, M r. Potter moved to suppress all the items confiscated from

the pickup and his person. M r. Potter argued that the items w ere seized in

violation of the Fourth A mendment because, when Trooper Adams first

handcuffed M r. Potter, he told M r. Potter that he was not under arrest.

Consequently, M r. Potter argued, the search incident to arrest exception to the

Fourth Amendment warrant requirement was not present when Trooper Adams

first searched him and the pickup, nor was any other exception implicated by the

                                         -5-
facts.

         In its order denying the motion to suppress, the district court characterized

the encounter between Trooper Adams and M r. Potter as an investigative

detention that turned into an arrest. The court found that the frisk of M r. Potter

was justified by probable cause and that the subsequent search of the pickup was

a search incident to arrest. Additionally, the district court noted that the search of

M r. Potter’s pickup could be justified under the automobile exception. See

California v. Acevedo, 500 U.S. 565, 580-81 (1991). Finally, the district court

noted that even if the search of the pickup was improper, the evidence in it would

have been inevitably discovered during a later inventory search and therefore

should not be suppressed. See Nix v. W illiams, 467 U.S. 431, 444-48 (1984).

         Before trial, M r. Potter stipulated that a total quantity of 438.4 grams of

methamphetamine had been recovered from the food storage bag and packages

wrapped in electrical tape. He further stipulated that .79 grams of

methamphetamine were seized from his pocket during the inventory search at the

jail. At trial, there was expert testimony that this quantity of methamphetamine

exceed that of a “user” quantity. No other drug paraphernalia was recovered

other than the digital scales. W hile M r. Potter’s fingerprints were not found on

the items containing methamphetamine, four latent prints w ere identified that did

not match M r. Potter. No effort was made to distinguish these prints as belonging

to Troopers A dams and Felicitti, nor were the latent prints compared to those in

                                            -6-
any state or federal database.

      Included in the jury’s verdict form was a special interrogatory regarding the

amount of methamphetamine involved in the offense. The jury concluded that

438.4 grams of methamphetamine were involved. 1 This amount was used by the

district court to establish a base offense level of 30, pursuant to U.S.S.G.

§2D1.1(c)(5). There were no enhancements or reductions to this base offense

level. Based on this offense level and a criminal history category of IV, the pre-

sentence investigation report recommended a guideline range 135 to 168 months

of imprisonment. The district court ultimately sentenced M r. Potter to serve 135

months, the low-end of the guideline range.



                                     Discussion

I.    The M otion to Suppress

      In reviewing the district court’s denial of M r. Potter’s motion to suppress,

we consider the totality of the circumstances and view the evidence in a light

most favorable to the government. United States v. Torres-Castro, 470 F.3d 992,

994 n.1 (10th Cir. 2006). W e accept the district court’s factual findings unless

they are clearly erroneous. United States v. Villagrana-Flores, 467 F.3d 1269,

1273 (10th Cir. 2006). Ultimately, the defendant must prove that the challenged



      1
        This represents the total quantity of methamphetamine from all sources
except the .79 grams found on M r. Potter’s person.

                                         -7-
search was illegal under the Fourth Amendment, the ultimate determination of

which is a question of reasonableness that we review de novo. Id.

      In this case, the district court correctly found that the searches of M r.

Potter’s person and the pickup were justified by numerous exceptions to the

warrant requirement. Trooper Adams was initially justified in stopping M r. Potter

because he observed M r. Potter speeding and littering. See United States v.

Botero-O spina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc). Whether M r.

Potter’s detention is characterized as a Terry stop, a Terry stop that evolved into

an arrest, or simply an arrest, we agree with the district court that, based on the

description contained in the BOLO, M r. Potter’s throwing an object out of the

pickup’s window, and M r. Potter’s reluctance to yield, Trooper Adams possessed

probable cause to suspect M r. Potter of shoplifting and could have arrested him at

any time. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); M arshall

v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1166 (10th Cir. 2003).

      Because Trooper Adams could have arrested M r. Potter at any time, and did

eventually arrest him, the searches of both M r. Potter and his pickup were

justified as searches incident to an arrest. See New York v. Belton, 453 U.S. 454,

460 (1981). Additionally, because Trooper Adams had probable cause to believe

that M r. Potter used his pickup as a getaway vehicle for his theft of the radar

detector, Trooper Adam’s search of the pickup was also justified under the

automobile exception to the warrant requirement. See Acevedo, 500 U.S. at 580.

                                          -8-
Finally, even if the searches of M r. Potter and the pickup were not justified at

their onset, the evidence discovered would have been found during the subsequent

inventory searches of both M r. Potter and the pickup. Thus, the evidence

discovered during the searches w ould be admissible under the inevitable

discovery doctrine. See Nix, 467 U.S. at 444-48. Thus, the district court

correctly denied M r. Potter’s motion to suppress.

II.   Sufficiency of the Evidence

      “W e review the record de novo to determine w hether a reasonable jury

could have found sufficient evidence to convict [M r. Potter] beyond a reasonable

doubt.” United States v. Patterson, 472 F.3d 767, 778 (10th Cir. 2006). In so

doing, we view all the evidence, including the reasonable inferences drawn from

it, in a light most favorable to the government. Id. W e do not weigh conflicting

evidence or judge credibility. Id. W e only ask, “w hether the evidence, if

believed, would establish each element of the crime.” Id. (internal quotation

omitted).

      To sustain a conviction for possession with intent to distribute in violation

of 21 U.S.C. § 841(a)(1), the government had to prove that M r. Potter: (1)

possessed the controlled substance, (2) knew he possessed the controlled

substance, and (3) intended to distribute or dispense the controlled substance.

United States v. M ontgomery, 468 F.3d 715, 719 (10th Cir. 2006). M r. Potter

never contested that the amount of substance recovered was approximately 440

                                         -9-
grams of methamphetamine. Therefore, the government only had to prove that

M r. Potter knowingly and intentionally possessed the methamphetamine and that

he intended to distribute it.

      M r. Potter essentially attacks the credibility of Trooper Adams and argues

that there was insufficient evidence linking him to the wrapped packages of

methamphetamine found on the shoulder of I-80. Yet, Trooper Adams testified

that he saw a white object fly from M r. Potter’s pickup and that he carefully noted

its location. Troopers Adams and Felicetti testified that when they walked back

to the location where Trooper Adams observed the white object fall, they

discovered a white plastic grocery bag, partially ripped open, containing a

package of white substance, and two packages wrapped in black electrical tape

laying nearby. M r. Potter stipulated that the material found in the grocery bag

and wrapped in tape was methamphetamine. Agent M atheson testified that the

quantity of methamphetamine found was consistent with a quantity used for

distribution.

      There was sufficient evidence to infer that M r. Potter possessed

approximately 440 grams of methamphetamine with the intent to distribute. The

jury apparently found Troopers Adams and Felicetti and Agent M atheson to be

credible, and we will not disturb that determination on appeal. Valdez v. Bravo,

373 F.3d 1093, 1097 (10th Cir. 2004).




                                        - 10 -
III.   The Constitutionality of M r. Potter’s Sentence

       In B lakely v. W ashington, 542 U.S. 296 (2004), the Supreme Court

reaffirmed its prior ruling in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

that “[o]ther than the fact of a prior conviction, 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.” In this case, the quantity of

methamphetamine used to establish M r. Potter’s base offense level was

specifically determined by a special jury interrogatory. There were no

enhancements to M r. Potter’s base offense level. His sentence was increased due

to prior criminal convictions, but prior convictions are exempted from the general

rule set forth in Apprendi. See id.

       M r. Potter also argues that his sentence was unreasonable under United

States v. Booker, 543 U.S. 220 (2005). W e have held that a sentence within the

recommended guideline range is presumptively reasonable. See United States v.

Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Not only was M r. Potter’s sentence

within the recommended guideline range, it was at the bottom of that range. It

also appears from the record that the district court fully considered the factors set

forth in 18 U.S.C. § 3553(a), which we use as a benchmark for determining

whether a sentence is reasonable. See United States v. Gillespie, 452 F.3d 1183,

1192 (10th Cir. 2006). The district court took full notice of the nature and

circumstances of the offense, as well as M r. Potter’s history and characteristics.

                                         - 11 -
It considered both mitigating and aggravating factors, including M r. Potter’s

criminal history involving methamphetamine. Accordingly, we conclude that M r.

Potter’s sentence was reasonable.

IV.   Ineffective Assistance of Counsel

      In his pro se filing, M r. Potter argues, on numerous grounds, that his

appointed counsel provided ineffective assistance. W e have frequently held that

ineffective assistance of counsel claims should be brought in the first instance on

collateral review under 28 U.S.C. § 2255. See, e.g., United States v. Brooks, 438

F.3d 1231, 1242 (10th Cir. 2006); Calderon, 428 F.3d at 931. The Supreme Court

has held likew ise. See M assaro v. United States, 538 U.S. 500, 504 (2003). M r.

Potter’s claims in this regard are premature.

      D ISM ISSED . C ounsel’s motion to withdraw is GRANTED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        - 12 -
