UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RICHARD DALE HENRY, Defendant - Appellant. No. 17-7028 (D.C. No. 6:16-CR -00071-JHP-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Richard Henry appeals following his convi ction for being a felon in possession of a firearm. His counsel m oves to withdraw in a brief filed pursuant to Anders v. California, 386 U.S. 738 (196 7). Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to wit hdraw and dismiss the appeal. I A jury found Henry guilty of being a fe lon in possession of a firearm. His Presentence Investigation Report (“PSR”) recommended a base offense level of 22

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 30, 2017 Elisabeth A. Shumaker Clerk of Court2 because Henry’s offense involved a semiauto matic weapon that could be used with a high-capacity magazine and Henry had prev iously been convicted of second-degree murder, a crime of violence. The PSR also recommended a criminal history category of III, based on the murder conviction and a possession of marijuana offense. Henry also had prior convictions for first-degree murder, burglary, a nd theft, which were too old to be counted in hi s criminal history score. Henry’s trial counsel objected to th e 1994 second-degree mu rder conviction being characterized as a cr ime of violence, but the di strict court overruled the objection. The government requested an up ward variance or departure, arguing that Henry’s older convictions demonstrated that he posed a danger to the community and that their exclusion from the criminal hi story score meant that the score did not adequately reflect this dange r. Although the district c ourt declined to vary, it departed upward from a criminal history cate gory of III to a criminal history category of V, resulting in an advisory range of 77 to 96 months. The court sentenced Henry to 96 months’ imprisonment. Henry timely appealed. II An attorney who determines that an appeal would be wholly frivolous after conscientiously examining th e case may advise the court of this conclusion and request permission to withdraw . Anders, 386 U.S. at 744. The attorney must file a brief noting any potentially appealable issu es and provide the br ief to the defendant, who may then submit a pro se brief. Id. If the court determines that any appeal3 would be frivolous upon careful examination of the record, it may grant the request to withdraw and dism iss the appeal. Id. Defense counsel’s Anders brief notes three potentiall y appealable issues: (1) whether the evidence pr esented at trial was suff icient to support Henry’s conviction; (2) whether the sentence was r easonable; and (3) wh ether Kansas seconddegree murder qualifies as a crime of violen ce. We conclude that argument on any of these issues would be frivolous. To convict Henry of being a felon in po ssession of a firearm in violation of 18 U.S.C. § 922(g)(1), the government had to prove that he is a convicted felon who knowingly possessed a firearm, and that th e firearm moved in interstate commerce. United States v. Morales, 758 F.3d 1232, 12 35 (10th Cir. 2014). Henry stipulated that he was a convicted felon and that the gun at issue had moved in interstate commerce. Additionally, a pawn shop owner te stified that Henry so ld him a firearm. This evidence was su fficient to support the conviction. We also conclude that Henry’s sentence was both procedurally and substantively reasonable. The district c ourt permissibly increased Henry’s criminal history category by two levels based on an underrepresente d criminal history. See United States v. Pettigre w, 468 F.3d 626, 64 1 (10th Cir. 2006) (affirming upward departure under similar circumstances); U. S.S.G. § 4A1.3(a)(1) (allowing for upward departure for substantially underrepresented criminal history). Henry’s sentence of 96 months was also a valid exercise of th e district court’s discretion. See United4 States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (noting deferential substantive reasona bleness review). Finally, Henry’s Kansas s econd-degree murder convic tion clearly qualifies as a crime of violence. Under the enumerated offense clause of U.S.S.G. § 4B1.2, murder is a crime of violence. Id. A nd Kansas second-degr ee murder corresponds with the generic definition of murder. Se e United States v. Ca stro-Gomez, 792 F.3d 1216, 1217 (10th Cir. 2015) (generic murder requires “at least reckless and depraved indifference to serious dangers posed to hu man life”); Kan. Stat . § 21-3402 (1993). Henry also filed a pro se brief advanci ng several arguments. He challenges the factual bases of his prior convictions; conte nds that a prior charge noted in the PSR, but immaterial to the senten ce calculation lacked a factua l basis; argues that he had not endangered society after being releas ed from prison most recently; and claims that he immediately sold the fi rearm at issue in this case after inheriting it. None of these arguments, however, consti tute a ground for reversal. In the course of federal sentencing proceedings, a defendant may not collaterally attack prior convictions unless they were obtained in violation of the right to counsel. Custis v. United States, 511 U.S. 485 (1994). The district c ourt did not clearly err in concluding that Henry was a danger to the community. And Henry’s arguments about the reasons for his possession of the firearm do not unde rmine the conclusion that he knowingly possessed it.5 III Because we are not presented with a ny meritorious grounds for appeal, we GRANT counsel’s request to withdraw and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge