* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RICHARD PAUL GIROLAMO, Defendant-Appellant. No. 98-2101 (District of New Mexico) (D.C. No. CR-97-178-JC)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e court therefore orders the case submitted without oral ar gument. In March of 1997, a federal grand jury indicted Ric hard Paul Girolamo on four counts of being a felon in possession of a fir earm in violation of 18 U.S.C.-2-

§§ 922(g)(1) and 924(a)(2). In December of that same year, Girolamo entered into a plea agreement with the government wherein h e agreed to plead guilty to Count IV of the indictment. In exchange for Girolamo’s guilty plea to Count IV, the United States agreed to dismiss the remaining three counts of the indictment. The United States further stipulated that Girolamo had clearly demonstrated acceptance of personal responsibility for his crimi nal conduct and was, thus, entitled to a three-point downward adjustment in hi s base offense level pursuant to U.S.S.G. § 3E1.1. Prior to sentencing, Girolamo moved for a downward departure on the following two grounds: (1) the conduct of the “vict im” contributed significantly to provoking the offense behavior; and (2) he posse ssed the weapons in order to avoid a perceived greater harm. At the sentencing hearing, the district court refused to depart downward, noting as follows: I don’t think that this case is one for a downward departure. Frankly, based on his criminal activity, this one w here his criminal activity understates what his sentence should b, so it would be just the opposite, if I were going to – I would depart upward rather than downward. So I find I have the authority and jurisdiction to depart downward. I choose not to do so, and I adopt the f indings of the probation department, as to all of his contested fi ndings. Accordingly, the district court sentenced Girolamo to a term of 105 months imprisonment to be followed by three years supervis ed release. The term imposed was within the range prescribed by the Sent encing Guidelines.-3-

On March 31, 1998, Girolamo filed a timely pro se notice of appeal. On May 5th , Girolamo’s counsel sent Girolamo a letter indicating that counsel had reviewed the record, believed the appeal was frivol ous, and would file a brief pursuant to Anders v. California , 386 U.S. 738 (1967), seeking to withdraw. The letter also briefly apprized Girolamo of Girolamo’s obligation to file a supplemental brief setting forth those issues he be lieved deserving of appellate review. On May 29th , counsel sent Girolamo a second letter, reiterati ng his intention to file an Anders brief and providing Girolamo with detailed instructions regarding the filing of a pro se supplemental brief. After Girolamo’s counsel filed his Anders brief in July of 1998, the Clerk of this court sent Girolamo a letter specifically i nforming him that he should file a supplemental pro se brief within thirty days indicating why Girolamo’s conviction should be set aside. The letter furtherindicated as follows: “You do not have a right to another attorney unless this co urt finds, based upon your objections and the reasons for them, that your case requires further briefing or argument. If the court finds that your case requir es further briefing or argument, an attorney will be appointed to handle your appeal.” On September 18th , well after the deadline set forth in the Clerk’s letter, Girolamo filed a Motion for Appointment of Counsel on Appeal and for Extension of Time. In his motion, Girolamo failed to address the merits of his appeal or to discuss whether the-4-

appeal was frivolous. Instead, Girolamo simply stated in the most conclusory terms that his present counsel was biased and ineff ective and that he needed new counsel to file a brief on his behalf. On September 21st , the Clerk of this court issued an Order providing that Girolamo’s motion wo uld be referred to the merits panel. The Order again informed Girolamo of his right to file a supplemental pro

se brief and specifically noted that the court did no t have before it any materials addressing the merits of Girolamo’s appeal. The or der indicated that Girolamo should file such a brief within fourteen days. Gir olamo again failed to file a supplemental brief. With this lengthy procedural history in mind, this appeal is before the court on counsel’s Anders brief and motion to withdraw and Girolamo’s belate d motion for extension and appointment of counsel. Based on a rigorous review of the record, this court agrees with counsel that Girolam o’s guilty plea was freely and voluntarily entered, his sentence of imprisonment w as accurately calculated, and this appeal is frivolous. Accordingly, this court DENIES Girolamo’s motion for extension and for appointment of counsel, GRANTS counsel’s motion to withdraw, and AFFIRMS the judgment of conviction and sentence entered by the district court. ENTERED FOR THE COURT:-5- Michael R. Murphy Circuit Judge