                                                              FILED
                                                   United States Court of Appeals
                      UNITED STATES CO URT O F APPEALS     Tenth Circuit

                                                                September 28, 2007
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 07-1059
 v.                                             (D.C. No. 06-cr-00148-REB)
                                                         (D . Colo.)
 M IK EL LEV I TU CSO N ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before LUCERO , HA RTZ, and GORSUCH, Circuit Judges.


      M ikel Levi Tucson was convicted by a jury of three counts of possessing

cocaine with the intent to distribute it and one count of possessing

methamphetamine with the intent to distribute it, all in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). The district court sentenced him to concurrent 27

month terms of imprisonment on each of the four counts. On appeal, M r.

Tucson’s counsel filed an Anders brief and moved to withdraw as counsel. See


      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent except under the doctrines of law of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.
Anders v. California, 386 U.S. 738 (1967). Neither M r. Tucson nor the

government filed a response. For the reasons set forth below, we discern no

meritorious issues for appeal, and we therefore grant the motion to withdraw and

dismiss the appeal.

                                         ***

      In April 2006, a federal grand jury indicted M r. Tucson on four counts of

possession of a controlled substance with intent to distribute in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C). Three of the counts involved cocaine, while the

fourth involved methamphetamine. In November 2006, at the conclusion of a

four day trial, a jury convicted M r. Tucson on all four counts. At trial, two

Southern Ute Tribal Police officers and a federal Bureau of Indian Affairs agent

testified that on four separate occasions a confidential informant named Salvador

Lucero purchased drugs from M r. Tucson. The officers monitored these

transactions with visual and audio surveillance, but did not actually see the drugs

change hands. The officers further testified that they searched M r. Lucero both

before and after the transactions with M r. Tucson. M r. Lucero went into the

meetings with money and returned with drugs on each of the four occasions. M r.

Lucero did not testify, and the defense did not call any witnesses.

      During closing arguments, defense counsel emphasized that M r. Lucero was

the only eyew itness, and that the prosecution had not called him as a witness. In

response, the prosecutor pointed out to the jury that defense counsel had

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extensively cross-examined the police officers about M r. Lucero’s personal life

and criminal record. The prosecutor further told the jury that the defense could

have called M r. Lucero as a witness if it had wished. Defense counsel objected to

this statement and moved for a mistrial. The district court sustained the

objection, issued a curative instruction reminding the jury that the government

had the burden of proof, but denied the motion for a mistrial. The jury

subsequently returned guilty verdicts on all four counts. The district court

sentenced M r. Tucson to four concurrent 27 month terms of imprisonment. This

sentence was at the bottom of the applicable range of the United States

Sentencing Guidelines.

                                        ***

      Pursuant to the Supreme Court’s decision in Anders v. California, a court-

appointed defense counsel may “request permission to withdraw [from an appeal]

where counsel conscientiously examines a case and determines that any appeal

would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th

Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel to

       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 [c]ourt must then conduct
       a full examination of the record to determine w hether 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.

Id. (citing Anders, 386 U.S. at 744).

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      In her Anders brief, counsel noted two possible issues for appeal: 1) the

alleged prosecutorial misconduct during closing arguments, and 2) a challenge to

the sufficiency of the evidence. Counsel concluded that neither issue was

meritorious, and M r. Tucson did not exercise his right to file a response. After

conducting a full examination of the record, we agree with counsel’s conclusion

that no basis in law or fact exists for either of these arguments.

      “Although a prosecutor may not comment on a defendant’s decision to

refrain from testifying, he is otherw ise free to comment on a defendant’s failure

to call certain witnesses or present certain testimony.” Trice v. Ward, 196 F.3d

1151, 1167 (10th Cir. 1999) (citation omitted); see also Battenfield v. Gibson, 236

F.3d 1215, 1225 (10th Cir. 2001); United States v. M cIntyre, 997 F.2d 687, 707

(10th Cir. 1993). The record is clear that in this case the prosecutor was

commenting on the defense’s decision not to call M r. Lucero as a w itness. In

rebutting defense counsel’s “missing witness” argument, the prosecutor stated:

      [Defense counsel] has no burden at all in a crim inal case. The
      government has the burden of proof. He can just sit there . . . and not
      call a single witness, and that’s fine. And we embrace that as one of the
      constitutional guarantees of our country.
              But he didn’t tell you that he has the same subpoena power the
      government has. That if you wanted to find M r. Lucero and bring him
      in, he could have.

Trial Tr., N ov. 8, 2006, at 189-90.

      The prosecutor clearly indicated that the government bore the burden of

proof. His comments were limited to pointing out to the jury that the defense had

                                         -4-
the ability to call M r. Lucero as a witness if it had wished to do so. Under our

case law , such comments are not improper. W e are thus constrained to agree with

counsel that an appeal on the basis of prosecutorial misconduct would be

frivolous.

      W e also agree with counsel that any appeal based on the sufficiency of the

evidence would be frivolous. The jury heard testimony that on four separate

occasions M r. Tucson met with M r. Lucero; that prior to the meetings M r. Lucero

was searched to be certain he did not have drugs on him; that M r. Lucero was

given money to buy drugs; and that M r. Lucero returned from all four encounters

without the money and with substances that contained a detectable amount of

either cocaine or methamphetamine. This evidence, when viewed in the light

most favorable to the government, was sufficient for a rational jury to find M r.

Tucson guilty. See United States v. Torres-Laranega, 476 F.3d 1148, 1157 (10th

Cir. 2007).

                                        ***

      For the foregoing reasons, we grant counsel’s motion to withdraw and

dismiss the appeal.


                                        ENTERED FOR THE COURT



                                        Neil M . Gorsuch
                                        Circuit Judge

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