                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           May 25, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                            No. 15-2142
v.                                                (D.C. No. 2:14-CR-01760-RB-1)
                                                         (D. New Mexico)
CHARLES DOUGLAS NOTBOHM, JR.,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
                  _________________________________


      At a change-of-plea hearing on October 7, 2014, Charles Douglas Notbohm Jr.

pled guilty to an information which included two charges: “Count One, conspiring

with others to possess methamphetamine with the intent to distribute it; and . . .

Count Two, being in possession of methamphetamine with the intent to distribute it.”

During the hearing, the government asserted that on February 21, 2014, Mr. Notbohm

was driving with his co-conspirator, Richard Reeves, from Tucson, Arizona, to Las


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Cruces, New Mexico, with the intent to sell methamphetamine that Mr. Reeves had

obtained in Tucson. On their way to Las Cruces, the men were stopped by police who

found over 116 grams of “pure” methamphetamine in the car. Mr. Notbohm agreed to

this statement of the facts.

       Mr. Notbohm’s presentence report (PSR) calculated a base offense level of 30,

adjusted to 24 for acceptance of responsibility, and placed Mr. Notbohm in criminal-

history category III. These calculations resulted in a Guideline sentencing range of 87

to 108 months.

       Mr. Notbohm filed a sentencing memorandum arguing that the PSR’s criminal-

history calculation included a non-scorable offense and that, without this offense, he

should have been placed in category I for criminal history. With the exception of the

criminal-history calculation, Mr. Notbohm conceded the Guideline range provided in

the PSR was “technically correct,” but he asserted the calculated range was

nonetheless “substantially greater than necessary to accomplish the aims of federal

sentencing.” First, Mr. Notbohm argued he played a minor role in the offense. In

addition, Mr. Notbohm argued the Guidelines are “intrinsically flawed” as applied to

drug offenses. Particularly for methamphetamine, the Guidelines impose greater

sentences based on purity analysis, which, according to Mr. Notbohm, “is

meaningless in the world of today’s methamphetamine” and “result[s] in arbitrary

and unfair sentences.” Mr. Notbohm therefore asked the district court to grant a

downward variance from the calculated Guideline range and impose a sentence of 30

to 37 months.

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      At sentencing, the district court explained that it found some of Mr.

Notbohm’s arguments “provocative” and “interesting,” but it was not “in a position

to say, on that basis, that the Guidelines are lacking in empirical support.” The

district court also found against Mr. Notbohm on the objection related to his role in

the charged offenses. With respect to the criminal-history calculation, the parties

agreed it was no longer an issue. Accordingly, the district court denied a downward

variance, but it sentenced Mr. Notbohm to eighty-seven months in prison, the very

bottom of the Guideline sentencing range. Mr. Notbohm filed a timely appeal.

      Mr. Notbohm’s attorney has filed a brief under Anders v. California, 386 U.S.

738 (1967). In Anders, the Supreme Court held that defense counsel may seek

permission to withdraw from an appeal if, “after a conscientious examination” of the

case, counsel finds the appeal to be “wholly frivolous.” Id. at 744. Any request to

withdraw, however, must be accompanied by a “brief referring to anything in the

record that might arguably support the appeal.” Id. And counsel must also furnish a

copy of the Anders brief to the client, so that the client can “raise any points that he

chooses.” Id. If the court, after a “full examination of all the proceedings,” concludes

that the appeal is, in fact, wholly frivolous, it may grant counsel’s motion to

withdraw and dismiss the appeal. Id.

      Counsel for Mr. Notbohm has complied with these procedures. Counsel filed

an Anders brief explaining that “after an extensive and conscientious review of the

record on appeal in this matter,” he found the appeal to be without merit.

Accordingly, he requested permission to withdraw. And although Mr. Notbohm has

                                            3
been afforded an opportunity to raise any points he considers non-frivolous, he has

not done so.

      After conducting our own review of the record, we agree that Mr. Notbohm

has no meritorious grounds for appeal. The district court did not commit procedural

or substantive error when it sentenced Mr. Notbohm.

      We therefore grant counsel’s motion to withdraw and dismiss the appeal.

                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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