                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     August 4, 2009
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-1304
                                              (D.C. No. 1:06-CR-00270-REB-1)
    TIMOTHY G. CASSIUS,                                   (D. Colo.)
    a/k/a “Cash,” a/k/a “Almighty Dollar,”
    a/k/a “AD,”

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judge.



         Defendant-appellant Timothy Cassius was found guilty of various drug

trafficking offenses, as well as carrying a firearm in relation to a drug trafficking

offense, being a felon in possession of a firearm, and various witness-tampering

offenses. The district court sentenced him to 360 months’ imprisonment followed



*
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
by eight years’ supervised release and imposed a $100 special assessment fee.

The sentence reflected Mr. Cassius’s status as a career offender under USSG

§ 4B1.1. Counsel on appeal has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Mr. Cassius has submitted a pro se filing arguing

(1) that his sentence as a career offender under § 4B1.1 was erroneous; (2) that he

never “used or carried” a weapon in furtherance of any offense; (3) that his rights

under the double jeopardy clause were violated; and (4) that he received

ineffective assistance of counsel on appeal. Our jurisdiction arises under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we GRANT counsel’s request to

withdraw and DISMISS this appeal.

      Turning first to the arguments in Mr. Cassius’s pro se brief, he argues that

the government relied on his prior convictions for attempted escape and attempted

sale of a controlled substance to establish his status as a career offender.

According to him, that is error because neither of those offenses are crimes of

violence or controlled substance offenses, as required by § 4B1.1. The

government, however, did not sentence Mr. Cassius. That was done by the

district court which rightly relied on two prior felony convictions involving the

sale of controlled substances or imitation controlled substances detailed in the

presentence investigative report. See R. Vol. IX at 39 (August 5, 2008,

sentencing hearing transcript); Vol. XIII at ¶¶ 60, 73 (presentence report).




                                          -2-
      Mr. Cassius next contends that he was not guilty of using or carrying a

firearm under 18 U.S.C. § 924(c)(1) because “the firearm was found in a briefcase

in a car.” Aplt. Opposition to Anders Br. at 3. Mr. Cassius neglects to mention,

however, that the gun belonged to him, that it was found in a briefcase identified

by a witness as looking like one belonging to him, that the briefcase was located

in the car he was driving when he was arrested, and that crack cocaine was also

found in the briefcase. Muscarello v. United States, 524 U.S. 125, 126-27 (1998),

defines “carrying” for purposes of § 924(c) broadly enough to encompass

Mr. Cassius’s conduct in this case.

      Mr. Cassius makes no argument based on the double jeopardy clause, and

our “full examination of all the proceedings,” see Anders, 386 U.S. at 744, reveals

none. And finally, “[i]neffective assistance of counsel claims should be brought

in collateral proceedings, not on direct appeal. Such claims brought on direct

appeal are presumptively dismissible, and virtually all will be dismissed.”

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

      To comply with Anders, counsel was required to “submit a brief to the

client and the appellate court indicating any potential appealable issues based on

the record.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel has done so and identifies eight potential issues, none of which we find

meritorious.




                                         -3-
      The first group of issues identified by counsel concern Mr. Cassius’s

co-defendant, Latisha Thomas. The district court did not err in upholding

Ms. Thomas’s Fifth Amendment privilege against self-incrimination. It is clear

that Ms. Thomas faced “some authentic danger of self-incrimination” had she

testified, see United States v. Rivas-Macias, 537 F.3d 1271, 1277 (10th Cir. 2008)

(quotation omitted), cert. denied, 129 S. Ct. 1371 (2009), and she did not waive

her privilege by entering into a plea agreement, see id. at 1280 (“squarely

reject[ing] the proposition that an individual waives the Fifth Amendment

privilege by pleading guilty to a crime”). Further, the district court had no

inherent authority to grant her immunity in order to force her testimony. United

States v. Serrano, 406 F.3d 1208, 1217 (10th Cir. 2005).

      Turning to the conduct of the trial itself, our full examination of the

proceedings reveals that a reasonable jury could find guilt beyond a reasonable

doubt on the witness-tampering charges, given the direct and circumstantial

evidence and reasonable inferences, taken in a light most favorable to the

government. See United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004).

Mr. Joie Sams, the target of the tampering, testified that Mr. Cassius had asked

him to swear that he, Sams, had never seen Mr. Cassius use drugs and that

Mr. Cassius made his money from an escort service, neither of which were true.

      Taped telephone conversations of co-conspirators regarding the witness

tampering were properly admitted because they were made “during the course and

                                         -4-
in furtherance of the conspiracy,” and thus were not hearsay, Fed. R. Evid.

801(d)(2)(e), and because Ms. Thomas’s plea agreement and Mr. Sams’s

testimony allowed the government to connect the conversations with the facts

developed at trial.

      The district court did not violate Mr. Cassius’s equal protection rights

by allowing the government to exercise a preemptory challenge against an

African-American venire member. We agree with the district court that the

government’s racially neutral explanation for the challenge was credible and

cogent and that Mr. Cassius had not shown pretext. R. Vol. XII at 191.

      Finally, counsel identifies the reasonableness of the sentence as a possible

issue. “Appellate courts review sentencing decisions first for procedural

reasonableness, and then for substantive reasonableness.” United States v.

Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008), cert. denied, 129 S. Ct.

2172 (2009). “We review sentences for reasonableness under a deferential abuse

of discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.),

cert. denied, 129 S. Ct. 428 (2008). Mr. Cassius’s sentence was procedurally

reasonable. There is no indication that the district court incorrectly calculated the

Guidelines sentence or that it considered the Guidelines to be mandatory. See id.;

see generally R. Vol. IX (transcript of Aug. 5, 2008, sentencing hearing).

Further, the court clearly applied the factors in 18 U.S.C. § 3553(a), did not rely

on clearly erroneous facts, and adequately explained the sentence. See Haley,

                                         -5-
529 F.3d at 1311. Because the sentence imposed is within the correctly

calculated Guidelines range, it is presumed reasonable on appeal. Id. The

sentence is also substantively reasonable “given the totality of the circumstances

in light of the 18 U.S.C. § 3553(a) factors.” See id.

      We GRANT counsel’s request to withdraw and DISMISS this appeal.


                                                        Entered for the Court



                                                        Mary Beck Briscoe
                                                        Circuit Judge




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