UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. BRENT BROWN, Defendant–Appellant. No. 09-3326 (D.C. No. 2:08-CR-20115-CM-1) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , EBEL , and LUCERO , Circuit Judges.

Brent Brown appeals his conviction and sentence for possession with intent to distribute more than fifty grams of cocaine ba se. In a brief filed pursuant to Anders v. California , 386 U.S. 738 (1967), Brown’s counsel states that there are no non-frivolous arguments to present on appeal and moves fo r leave to withdraw. Exercising jurisdiction

* The case is unanimously ordered subm itted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 19, 2010
Elisabeth A. Shumaker Clerk of Court- 2- under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and dismiss the appeal.
I In August 2008, the Kansas City, Kansas, Police Department received information from a confidential informant that Brown wa s selling cocaine base, commonly known as crack cocaine. Officers arranged a controlle d buy, in which the co nfidential informant purchased crack cocaine from Brown. Based on this evidence, police received a warrant to search Brown’s residence. Upon executin g the warrant, officers found crack cocaine and several firearms. Searchin g Brown incident to his arre st, officers discovered $7,354
in cash. Police arrested two other individu als at the scene. One of them, Lucious Newton, was carrying approximately $4,660 in cash. In September 2008, a grand jury indict ed Brown on one count of knowingly and intentionally possessing with inte nt to distribute more than fifty grams of a substance containing cocaine base in vi olation of 21 U.S.C. §§ 841( a)(1) and (b)(1)(A), and on one count of knowingly using firearms in the fu rtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Brown entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement with the government. He pled guilty to the possession with intent to distribute charge in exchange for the government’s dropping the firearms charge. The plea agreement included an agreed-upon proposed disp osition, which was imposed by the district court. Brown expressly waived his right to appeal if th e district court accepte d this disposition.- 3- II Under Anders , if an attorney exam ines a case and determin es that an appeal desired by his client would be “wholly frivol ous,” counsel may “so advise the court and request permission to withdraw.” 386 U.S. at 744. Counsel must submit a brief to both the appellate court and his client, pointing to a nything in the record that could potentially present an appealab le issue. Id. The client may then choo se to offer argument to the court. Id. If, upon close examination of the record , the court determines that the appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal. Id. Brown was served with a copy of counsel’s appellate brie f, but did not file a response. The government also dec lined to file a brief. Upon review of counsel’s brief and the r ecord as a whole, we determine that the only possible grounds for appeal would be: (1) that Brown di d not knowingly and voluntarily enter into the plea agreement; (2) that the district court erred in overruling an objection to Brown’s Presentence Investigati on Report (“PSR”); and (3) that Brown’s sentence was unreasonable. Any of thes e arguments would be frivolous. A “[W]e engage in de novo review of the question of whether th e plea was knowing and voluntary . . . .” United States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000). “To enter a plea that is knowing and voluntary, th e defendant must have ‘a full understanding of what the plea connotes and of its c onsequence.’” United States v. Hurlich , 293 F.3d 1223, 1230 (10th Cir. 2002) (quoting Boykin v. Alabama , 395 U.S. 238, 244 (1969)).- 4- The district court fully complied with the requirements of Fed. R. Crim. P. 11(b), and the record discloses Brown had a full understandi ng of his guilty plea and its consequences. Any argument to the cont rary would be frivolous.
B During sentencing, Brown objected to th e PSR on the ground that it treated Newton and Brown as having jointly under taken criminal activity. After hearing argument on the matter, the dist rict court made a factual finding that Brown and Newton jointly participated in a scheme to sell narcotics. This factual finding was amply supported by undisputed facts. Any argument that the district court clearly erred would be frivolous. See United States v. Martinez , 418 F.3d 1130, 1133 (10th Cir. 2005) (“When reviewing a district court’s applica tion of the Sentencing Guidelines . . . we review any factual findings for clear error, gi ving due deference to the district court’s application of the guide lines to the facts.”). C We review a district court’s sentencing de termination for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). A sentenci ng court abuses its discretion if it imposes a sentence that is procedurally or substantively unreasonable in light of the factors found in 18 U.S.C. § 3 553(a). United States v. Geiner , 498 F.3d 1104, 1107 (10th Cir. 2007). Where, as here, a defendant do es not contemporaneously object to the sentencing procedure used, we review the procedure for plai n error. United States v.
Romero , 491 F.3d 1173, 1176-78 ( 10th Cir. 2007). In the absence of significant- 5- procedural error, we determine the substan tive reasonableness by lo oking to the totality of the circumstances. Gall , 552 U.S. at 51. “If the district court correctly calculate[d] the Guidelines range based upon the facts and im poses [a] sentence w ithin that range, the sentence is entitled to a presumption of re asonableness.” United States v. Sutton , 520 F.3d 1259, 1262 (10th Cir. 2008). The district court correctly calculated Brown’s Guidelines range, stated that it viewed the Guidelines as advi sory, considered the § 3553(a ) factors, and explained the basis for the sentence imposed. Moreover, the record shows no clear error in the court’s determination of the facts, and nothing in th e record could overcome the presumption that Brown’s sentence was substantively reasonable. Therefore, any argument that the district court committed plain error in arriving at Brown’s sentence would be frivolous.
III For the foregoing reasons, we GRANT defense counsel’s motion to withdraw and DISMISS the appeal.

Entered for the court

Carlos F. Lucero Circuit Judge