                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 15, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                         FOR THE TENTH CIRCUIT
                     _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                      No. 14-5126
                                              (D.C. No. 4:14-CR-00064-JED-1)
BILLY RAY WILLIS,                                    (N.D. Oklahoma)

      Defendant - Appellant.

                     _________________________________

                         ORDER AND JUDGMENT *
                     _________________________________

Before GORSUCH, MCKAY, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. Billy Willis pleaded guilty to theft of government property. The district

court accepted the plea and sentenced Mr. Willis to 20 months in prison and 3

years of supervised release. His attorney has filed an appellate brief, invoking

Anders v. California, 386 U.S. 738 (1967). In doing so, Mr. Willis’s attorney

candidly acknowledges his inability to find any colorable basis to appeal and




*
      This order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. But under
some circumstances, citation may be permissible under Fed. R. App. P. 32.1(a)
and 10th Cir. R. 32.1(A).
seeks leave to withdraw. 1 We agree with Mr. Willis’s attorney, granting leave to

withdraw and dismissing the appeal. 2

      As required by Anders, we have reviewed the entire appellate record to

determine the existence of any non-frivolous appeal points. Anders, 386 U.S. at

744. There are none.

I.    Acceptance of the Guilty Plea

      Mr. Willis pleaded guilty, and his attorney points out that Mr. Willis has

never expressed any desire to withdraw his guilty plea. Mr. Willis signed a

petition to enter a guilty plea, stating under oath that he understood he was

waiving numerous constitutional rights, that he had committed the crime, and that

he had fully discussed the petition with his attorney. After submitting this sworn

statement, Mr. Willis orally confirmed under oath that he understood the plea and

his waiver of rights. In these circumstances, we lack any reason to question the

validity of the guilty plea.

II.   Calculation of the Guideline Range

      Mr. Willis’s attorney also acknowledges that the district court correctly

computed the guideline range as 15 to 21 months. This range appeared in the

1
       The Court gave Mr. Willis an opportunity to file a pro se letter or brief
after his attorney stated that there were no valid grounds for appeal. Mr. Willis
has not filed a letter or brief, and his deadline expired over a month ago.
2
       Mr. Willis’s attorney has not requested oral argument, and the government
has not entered an appearance. We have addressed the case on the briefs because
oral argument would not be helpful.

                                         2
probation department’s presentence report, and Mr. Willis’s trial attorney stated

that he did not object to the presentence report. And before the court announced

the sentence, Mr. Willis confirmed that he felt comfortable with the contents of

the presentence report. In these circumstances, Mr. Willis lacks a colorable basis

to challenge the district court’s calculation of the guideline range.

III.   Compliance with the Oral Plea Agreement

       A conceivable issue exists regarding the government’s stance at sentencing.

Before Mr. Willis entered a plea, the government offered in open court to

recommend supervised probation in lieu of imprisonment. Change of Plea Tr. at

2-3. After the court took a recess, Mr. Willis agreed to “take the probation offer .

. . as presented by the government.” Id. at 7.

       At the sentencing 3½ months later, the government reminded the district

court of the prior agreement to recommend probation. The government stated:

              In all candor toward the tribunal, when Mr. Willis plead a few –
       if the court remembers correctly, this was the case that we were bound
       to pick a jury that morning. The United States did say at that time that
       depending on – it was contingent on the presentence report the amount
       of money lost and Mr. Willis’ behavior, that we would recommend a
       sentence of probation.

               That being said, I think some things have changed in the
       meantime, such as Mr. Willis not – and I know we’re not here on that
       revocation, so at this juncture, Your Honor, the United States will leave
       it to the discretion of the court on what – to come up with a just and
       appropriate sentence in this case.

Sentencing Tr. at 6.


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      Because the government did not recommend probation, as promised, Mr.

Willis could conceivably appeal based on breach of a plea agreement. If Mr.

Willis were to appeal on this ground, we would need to review the issue under the

plain-error standard because of the failure to raise the issue in district court. See

United States v. Mendoza, 698 F.3d 1303, 1309-10 (10th Cir. 2012) (applying the

plain-error standard to an appeal based on failure to comply with a plea

agreement because of the failure to raise the issue in district court). Under this

standard, Mr. Willis would need to show a violation of his substantial rights.

Puckett v. United States, 556 U.S. 129, 133 (2009). This element would require

Mr. Willis to show a reasonable probability that if the government had

recommended probation, the result would probably have been different. Mendoza,

698 F.3d at 1310.

      As Mr. Willis’s attorney admits, he cannot satisfy this element of the plain-

error standard. The district judge heard the government promise to recommend

probation. Months later, at the sentencing, the government reminded the district

judge of the promise to recommend probation. Hearing this reminder, the district

judge imposed a sentence near the top of the guideline range. In these

circumstances, we would conclude that Mr. Willis failed to show a reasonable

probability of a lighter sentence if the government had recommended probation.

See Mendoza, 698 F.3d at 1309-10 (declining to find a violation of substantial

rights under the plain-error standard because the district judge was aware of the

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prosecutor’s promise to recommend a sentence near the bottom of the guideline

range).

        In other circumstances, defendants might argue that they would not have

pleaded guilty if they had known the government would not honor its promise to

recommend probation. But Mr. Willis cannot make this argument. As noted in the

text, his attorney concedes that Mr. Willis does not seek withdrawal of his guilty

plea.

        If we were to invalidate the plea sua sponte, we might be harming Mr.

Willis. Before entering a plea, he expressed anticipation that a guilty plea would

trigger a 2-point reduction in his base-offense level. Petition to Enter Guilty Plea

at 5. The district court awarded this 2-point reduction to Mr. Willis. Sentencing

Tr. at 7-8; Presentence Report at 7. Without the 2-point reduction, Mr. Willis’s

guideline range would have been 21-27 months rather than 15-21 months. Thus,

we should be wary of considering the possibility that Mr. Willis would have

pleaded not guilty if he had known the government would later decline to

recommend probation.

        The appellate record discloses no basis to expect a different result if the

government had carried out its promise to recommend probation.

IV.     Length of the Sentence

        In addition to considering an issue involving the plea offer, we have

considered possible issues involving the length of the sentence. All sentences

                                            5
must be substantively reasonable. United States v. Hanrahan, 508 F.3d 962, 969

(10th Cir. 2007). But sentences within the guideline range are presumed

substantively reasonable. See United States v. Basnett, 735 F.3d 1255, 1263 (10th

Cir. 2013). The record does not reflect any circumstances that would support

rebuttal of the presumption.

V.    Conclusion

      Having considered the entire record, we agree with Mr. Willis’s counsel

that he lacks any reasonable grounds for an appeal. As a result, we grant

counsel’s motion to withdraw and dismiss the appeal.


                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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