                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 10, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,               Nos. 09-7011 & 09-7012
          v.                                           (E.D. Oklahoma)
 VANCE WADE MOORE,                            (D.C. Nos. 6:08-CR-00010-RAW-1
                                                     and 6:08-CR-00023-RAW-1)
               Defendant - Appellant.




                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate records, this court has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The matters

are 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        This order and judgment is not binding precedent except under the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.
I. Background

      On January 17, 2008, a federal grand jury charged appellant Vance Wade

Moore with two counts of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). On March 12, 2008, Moore was charged in a separate

indictment with assaulting, resisting or impeding an officer, in violation of 18

U.S.C. § 111; possessing, carrying and brandishing a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A); and being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). Moore pleaded not guilty to

all five charges and the matters were consolidated for trial.

      At Moore’s trial, the government introduced testimony from Jason

Chennault, the undersheriff of Cherokee County, Oklahoma. Chennault testified

that during an April 2007 visit to the residence Moore shared with his mother, he

observed a rifle on the living room sofa. When asked about the rifle, Moore told

Chennault it was for “protection.” Moore later testified the rifle belonged to his

mother. The jury acquitted Moore of the felon-in-possession charge arising from

this incident.

      The government also presented evidence that Moore possessed a firearm on

June 17, 2007. Casey Baker, a deputy with the Cherokee County Sheriff’s

Department, testified that he observed Moore walking down a county road with a

beer in his hand. Baker approached Moore and asked for his identification.

Baker testified Moore reached behind his back as though to grab or hide

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something, prompting Baker to grab him and place his hands on the hood of the

patrol car. Moore had a pistol tucked into the waistband of his pants. During

cross-examination, Moore admitted possessing the pistol. The jury convicted

Moore of the felon-in-possession charge related to this incident.

      The three charges in the March 12, 2008, indictment stemmed from an

incident that occurred at Moore’s residence on February 27, 2008. On that date,

three deputy United States Marshals and two officers from the Cherokee County

Sheriff’s Office went to Moore’s home to serve an arrest warrant. Jeremy

Hitchcock, a Cherokee County deputy sheriff, testified that he encountered Moore

as Moore exited the residence through a screen door. Hitchcock further testified

that Moore was carrying a firearm and pointed it directly at him. Moore then ran

from the residence and was not apprehended until the next day. Hitchcock

testified that a pistol was taken from Moore at the time of his arrest. During his

testimony, Moore admitted carrying the gun but denied pointing it at Deputy

Hitchcock. Moore also admitted running from the officers because he “didn’t

want to be arrested.” Moore was convicted of all three charges brought as a result

of the February 2008 incident.

II.   Discussion

      Moore’s counsel has invoked Anders v. California, 386 U.S. 738 (1967), in

the appellate briefs he filed in these two appeals, advising this court that any

appeal of Moore’s convictions is wholly frivolous. Pursuant to Anders, counsel is

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required to submit an “appellate brief indicating any potential appealable issues.”

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). The defendant is

notified of counsel’s brief and may submit additional arguments to this court. Id.

We “then conduct a full examination of the record to determine whether

defendant’s claims are wholly frivolous.” Id. Moore has filed a response to the

Anders briefs. Our conclusions, therefore, are based on counsel’s Anders briefs,

Moore’s response, and our own review of the record.

      In his Anders briefs, Moore’s counsel states there is no basis for reversing

any of Moore’s convictions because of insufficient evidence. Having carefully

reviewed the record, we agree. As to the two felon-in-possession convictions, the

government was required to prove Moore (1) was previously convicted of a

felony, (2) knowingly possessed a firearm or ammunition, and (3) the possession

was in or affecting interstate commerce. United States v. Colonna, 360 F.3d

1169, 1178 (10th Cir. 2004). The government clearly met its burden at trial. The

parties stipulated that Moore was a convicted felon. Moore admitted possessing

the firearms both during his direct testimony and on cross-examination. The

government introduced evidence that the firearms functioned properly and had

moved at some time from one state to another.

      As to Moore’s convictions for the remaining two counts in the March 12,

2008 indictment, the government introduced evidence Deputy Hitchcock went to

Moore’s residence to assist federal marshals serve a warrant. Moore admitted

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purposefully running from Deputy Hitchcock to avoid arrest. He also admitted he

had a firearm in his hand. Moore testified at trial that he did not point his weapon

at anyone, but Deputy Hitchcock testified Moore pointed the gun directly at him.

Although this court reviews de novo the sufficiency of the evidence supporting a

conviction, we do not question credibility determinations made by the jury.

United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000).

      In his response, Moore alleges the law enforcement officers were not

wearing uniforms when they arrived at his house on February 27, 2008, and they

fired a Taser gun at him before they identified themselves as law enforcement

officers. These allegations, even if true, provide no support for the reversal of

Moore’s convictions. Further, even if the allegations were relevant, Moore

admitted he knew Deputy Hitchcock was a law enforcement officer when he

encountered him while fleeing the residence to avoid arrest.

      The remaining issues raised by Moore in his response all involve

allegations his counsel provided ineffective assistance. Specifically, Moore

complains his trial counsel (1) did not properly cross-examine Deputy Hitchcock

or Deputy Baker, (2) did not use Deputy Baker’s prior testimony to impeach him,

(3) failed to pursue an insanity defense, and (4) refused to interview unnamed

defense witnesses. In the absence of “rare” circumstances, ineffective assistance

of counsel claims “should be brought in collateral proceedings, not on direct

appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

                                         -5-
banc) (holding ineffective assistance of counsel claims “brought on direct appeal

are presumptively dismissible, and virtually all will be dismissed”). No special

circumstances exist in this case because Moore’s claims were not “adequately

developed by the district court prior to appeal.” 1 United States v. Gallegos, 108

F.3d 1272, 1280 (10th Cir. 1997).

       The only other possible basis for an appeal must relate to Moore’s

sentence. The presentence investigation report (“PSR”) calculated Moore’s

advisory guidelines range as seventy-seven to ninety-six months, based on a total

offense level of twenty-two and a category V criminal history. Moore filed one

objection to the PSR which he subsequently withdrew. The district court

sentenced Moore to three, concurrent terms of eighty months’ imprisonment on

the two § 922(g)(1) convictions and the 18 U.S.C. § 111 conviction. An

additional consecutive term of eighty-four-months’ incarceration was imposed for

the brandishing conviction. See 18 U.S.C. § 924(c)(1)(A)(ii). Based on our

review of the appellate record, we discern no nonfrivolous basis upon which

Moore could challenge his sentence.

III.   Conclusion

       A review of the record, the Anders briefs, and Moore’s response does not

reveal any claims arguable on their merits. Accordingly, we conclude Moore’s

       1
       Moore’s appellate counsel also represented him during the trial
proceedings and, thus, Moore’s allegations of ineffective assistance are leveled
against the attorney representing him in this appeal.

                                         -6-
appeals are wholly frivolous. We grant counsel’s implied request to withdraw 2

and dismiss the appeals. Moore’s motion for appointment of substitute counsel is

denied.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




      2
       Under Anders, if a defendant’s counsel “finds [the defendant’s] case to be
wholly frivolous, after a conscientious examination of it, he should so advise the
court and request permission to withdraw.” Anders v. California, 386 U.S. 738,
744 (1967). Although Moore’s counsel did not explicitly move to withdraw, we
interpret his Anders briefs to include such a request.

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