* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### APR 21 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PAMELA L. MEDLEY, also known as Shelley Wallace, also known as Roschelle Wallace, also known as Ruth Gibbs, Defendant-Appellant. No. 03-2026 (D.C. No. CR-01-43-MV) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

Pamela Medley was charged with five counts of wire fraud in violation of 18 U.S.C. § 1343; six counts of mail fraud in violation of 18 U.S.C. § 1341; one-2-

count of making a false claim against the United St ates in violation of 18 U.S.C. § 287; seven counts of money laundering and aiding an d abetting money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(B)(I) ; two counts of impersonating a United States employee in violation of 18 U.S.C. § 912; one count of making a false statement in violation of 18 U.S.C. § 1001; a nd one count of false representation of a social security number in violation of 42 U.S.C. § 408(a)(7)(B). A jury found her guilty on all count s and the court sentenced her to seventy-eight months incarceration. Ms. Medley’s appointed counsel filed an appellate b rief indicating Ms. Medley desires to raise nine issues on appeal. Cou nsel raised eight of the issues pursuant to Anders v. California , 386 U.S. 738 (1967), but contended the case should be remanded for resentencing on Issue VI bec ause the court sentenced Ms. Medley under the wrong edition of the United States Sentencing Guidelines Manual. The government asserted that Ms. Medley’s sentence would be equal to or greater under the proper version of the guidelin es and that the error was therefore harmless. In reply, Ms. Medley’s counsel acknowledged Issue VI was governed by Anders and moved to withdraw. Anders holds that if counsel finds a case to be wholly fr ivolous after conscientious examination, she may advise the courtand request permission to withdraw. Counsel must also submit to both the cou rt and her client a brief-3-

referring to anything in the record arguably supportive of the appeal. The client may then raise any point she chooses, and the courtthereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, the court may then gran t counsel’s request to withdraw and dismiss the appeal. See id. at 744. Ms. Medley’s counsel has met the procedural require ments imposed by Anders . She sent a copy of her reply brief to Ms. Medley , who then filed a pro se brief in which she restated the nine numbered issue s, including Issue VI, and attached several letters indicating her displeasure with her counsel. Having completely examined each issue raised by Ms. Medley , we deny counsel’s motion to withdraw and remand the case to the district cou rt for the reasons set forth below. Ms. Medley first argues the district court abused i ts discretion by quashing pretrial document subpoenas the defense issued with out court authorization. We review a district court’s suppression of such subpo enas for an abuse of discretion. See United States v. Morris , 287 F.3d 985, 991 (10th Cir. 2002). On December 7, 2001, Ms. Medley filed a motion under Federal Rule of Criminal Procedure 17(c), requesting production of investigative files from the Federal Emergency Management Agency (FEMA) and the Small Business Adm inistration (SBA). Before the court ruled, counsel served the subpoena s. The government moved to-4-

quash the subpoenas, claiming they were unauthorize d attempts to circumvent the discovery rules. Ms. Medley then argued the subpoe nas were actually Rule 17(a) witness subpoenas, not Rule 17(c) subpoenas. The d istrict court quashed the subpoenas on the grounds that it never authorized them, Rule 17(a) does not address document subpoenas, and the subpoenas were attempts to circumvent the rules of discovery under Rule 16. Ms. Medley offer s no discernible reason why the court abused its discretion in quashing the unauthorized subpoenas, and having reviewed the record, we can see none. Although Issue II ostensibly concerns the district court’s evidentiary rulings, Ms. Medley’s brief focuses on the Sixth Am endment implications of the quashed subpoenas, providing an example of what she characterizes as a document the government intentionally withheld from the jury. Aplt. Pro Se Br. at 7-8. From her counsel’s Anders brief, we learn Ms. Medley also disputes the district court’s rulings admitting into evidence a letter from Ms. Medley to United States Senator Jeff Bingaman, several charts, testi mony regarding telephone calls and documents, and identification of defendant from surveillance camera images. We review the district court’s evidentiary rulings for abuse of discretion. See Abuan v. Level 3 Communications, Inc. , 353 F.3d 1158, 1171 (10th Cir. 2003). Even if the court erred by admitting eviden ce, the harmless error doctrine forbids us from disturbing the court’s rulings unle ss the error substantially-5-

influenced the jury’s verdict. See United States v. Anaya , 117 F.3d 447, 448 (10th Cir. 1997). Ms. Medley bears the burden of d emonstrating her substantial rights were affected. See id. at 448-49. She has not demonstrated the district court erred in any evidentiary rulings, much less h ow such rulings harmed her substantial rights. Ms. Medley next contends the evidence was insuffici ent to convict her. To determine whether evidence is sufficient to uphold a conviction, “we examine, in the light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefrom and askwhether any rational juror could have found the essential elements of the crim e beyond a reasonable doubt.” United States v. Arutunoff , 1 F.3d 1112, 1116 (10th Cir. 1993). The evidence was overwhelming that Ms. Medley committed a complex an d far-reaching fraud founded on a veritable mountain of forged and false documents. She claims the government withheld for several months what she des cribes as exculpatory evidence, but she does not give any reasons why anyrational juror could have found her not guilty when presented with evidence t hat she repeatedly used a dead woman’s name and identity; filled out documents und er a false name and social security number; filed a claim for reimbursement fo r a property in which she never lived; made materially false statements abouther residency, losses in a fire, and employment; and impersonated not only a FEMA of ficial but an Assistant-6-

United States Attorney. Ms. Medley also asserts the government improperly s hifted the burden of proof in its closing argument. We review for plain error allegedly improper comments made in closing arguments if counsel did n ot object contemporaneously. See United States v. Hernandez , 327 F.3d 1110, 1114 (10th Cir. 2003). If Ms. Medley can show plain error aff ecting her substantial rights, we have the discretion to correct it if it “serious ly affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). Ms. Medley’s ill-foun ded and unsupported contentions have not met this “rather stringent tes t.” Id. Defense counsel intimated in her opening statement that the evidenc e would show Ms. Medley had been engaged in an affair with Mr. Van Buren, the l andlord of a residence lost in the fire. See id. at 348-49. The defense neither introduced any evid ence of this affair nor rebutted Mr. Van Buren’s testimony that he had never even met Ms. Medley. See tr. at 861-64. In closing, the prosecutor reminde d the jury of its duty to base its decision on the evidence and that counsel’s opening statements were not evidence. The prosecutor was careful to m ake clear to the jury that “the defendant ha[d] no obligation whatsoever to produce any evidence at all. None.” Id. at 1274-75. On this record, the prosecutor was we ll within the limits of permissible argument and clearly did not shift the burden to defendant. See-7-

United States v. Simpson , 7 F.3d 186, 190 (10th Cir. 1993) (collecting case s upholding prosecutorial comment on lack of evidence supporting defendants’ theories); United States v. Prichard, 645 F.2d 854, 858 (10th Cir. 1981) (defense counsel’s opening argument invited prosecutor’s res ponse that defense had not proved what it said it would). Ms. Medley also raises a number of sentencing issue s, the most significant of which is her contention that her sentence violat ed her Sixth Amendment right to a jury trial because the district court found th ree facts, by a preponderance of the evidence, that increased her sentence. She spe cifically contends the court unconstitutionally increased her sentence under the guidelines when it found: (1) the intended-loss figure exceeded $400,000 when the highest intended-loss number the government introduced at trial was $329, 617; (2) her criminal history category was III by relying on considerable uncharg ed criminal conduct; and (3) she obstructed justice by lying to pretrial service s. Ms. Medley raised a challenge in the district court based on Apprendi v. New Jersey , 530 U.S. 466 (2000), regarding her first two arguments. In Blakely v. Washington , 124 S. Ct. 2531 (2004), the Court applied the rule of Apprendi to Washington state’s determinate sentencing scheme . In holding Washington’s sentencing scheme unconstituti onal, the Court reiterated that the Sixth Amendment requires any fact, other t han a prior conviction, that-8-

increases the penalty for a crime beyond the prescr ibed statutory maximum be admitted by the defendant or found by a jury beyond a reasonable doubt. Id. at 2536-37. In United States v. Booker , 125 S. Ct. 738 (2005), the Court held the Sixth Amendment requirement that a jury find certai n sentencing facts to be incompatible with the Federal Sentencing Act, thus requiring severance of the Act’s provisions making the federal sentencing guid elines mandatory. Id. at 756- 57, 765. To cure the constitutional problem, the Court made the guidelines advisory. Id . at 757. Because Ms. Medley raised Apprendiwhen she was sentenced, rec., vol. 15, at 73-74, we review for harmless error her Sixth Am endment claims regarding intended loss and uncharged conduct. Federal Rule of Criminal Procedure 52(a) counsels federal courts to disregard “[a]ny error, defect, irregularity, or variance that does not affect substantial rights.” F ED
. R. C RIM
. P. 52(a). “In the context of a misapplication of the guidelines under 18 U.S.C. § 3742(f)(1), the Supreme Court held that ‘once the court of appeals has deci ded that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the errorwas harmless, i.e. , that the error did not affect the district court’s selection of the sentence imposed.’” United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005) (quoting Williams v. United States , 503 U.S. 193, 203 (1992)). The burden is on1 Given that we must remand for resentencing in any e vent, we need not

address any of the other sentencing issues Ms. Medl ey raises. See United States v. Cano-Silva , Nos. 03-4059, 03-4108, 2005 WL 698983, at *6 (10th Cir. Mar. 28, 2005) (reversing one issue and remanding for resent encing pursuant to Booker without addressing other asserted error). -9- the government to establish harmlessness, and it ha s not attempted to do so. Accordingly, Ms. Medley is entitled to be resentenc ed pursuant to Booker

. 1 See United States v. Lang , No. 04-4165, 2005 WL 834669, at *4 (10th Cir. Apr . 12, 2005). Having carefully examined the entire proceedings as required by Anders, we cannot agree with counsel that no non-frivolous grounds for appeal appear on this record. We therefore DENY counsel’s request to withdraw, affirm the conviction, and REMAND the case to the district court with directions to v acate Ms. Medley’s sentence and to resentence her in light of Booker

.

ENTERED FOR THE COURT

Stephanie K. Seymour Circuit Judge