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.) 

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ORDER AND JUDGMENT*

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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. 

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Richard Henry appeals following his conviction for being a felon in possession 

of a firearm. His counsel moves to withdraw in a brief filed pursuant to Anders v. 

California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291, we 

grant counsel’s motion to withdraw and dismiss the appeal. 

I 

A jury found Henry guilty of being a felon in possession of a firearm. His 

Presentence Investigation Report (“PSR”) recommended a base offense level of 22 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 30, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

because Henry’s offense involved a semiautomatic weapon that could be used with a 

high-capacity magazine and Henry had previously 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, and theft, which were 

too old to be counted in his criminal history score. 

Henry’s trial counsel objected to the 1994 second-degree murder conviction 

being characterized as a crime of violence, but the district court overruled the 

objection. The government requested an upward 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 history score meant that the score did not 

adequately reflect this danger. Although the district court declined to vary, it 

departed upward from a criminal history category 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 the 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 issues and provide the brief to the defendant, 

who may then submit a pro se brief. Id. If the court determines that any appeal 
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would be frivolous upon careful examination of the record, it may grant the request 

to withdraw and dismiss the appeal. Id. 

Defense counsel’s Anders brief notes three potentially appealable issues: 

(1) whether the evidence presented at trial was sufficient to support Henry’s 

conviction; (2) whether the sentence was reasonable; and (3) whether Kansas seconddegree murder qualifies as a crime of violence. We conclude that argument on any of 

these issues would be frivolous. 

To convict Henry of being a felon in possession 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 the firearm moved in interstate commerce. 

United States v. Morales, 758 F.3d 1232, 1235 (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 testified that Henry sold him a firearm. 

This evidence was sufficient to support the conviction. 

We also conclude that Henry’s sentence was both procedurally and 

substantively reasonable. The district court permissibly increased Henry’s criminal 

history category by two levels based on an underrepresented criminal history. See 

United States v. Pettigrew, 468 F.3d 626, 641 (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 the district court’s discretion. See United 
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States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (noting deferential 

substantive reasonableness review). 

Finally, Henry’s Kansas second-degree murder conviction 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. And Kansas second-degree murder corresponds 

with the generic definition of murder. See United States v. Castro-Gomez, 792 F.3d 

1216, 1217 (10th Cir. 2015) (generic murder requires “at least reckless and depraved 

indifference to serious dangers posed to human life”); Kan. Stat. § 21-3402 (1993).

Henry also filed a pro se brief advancing several arguments. He challenges the 

factual bases of his prior convictions; contends that a prior charge noted in the PSR, 

but immaterial to the sentence calculation lacked a factual basis; argues that he had 

not endangered society after being released from prison most recently; and claims 

that he immediately sold the firearm at issue in this case after inheriting it. None of 

these arguments, however, constitute 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 court 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 undermine the conclusion that he knowingly 

possessed it. 
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III 

Because we are not presented with any meritorious grounds for appeal, we 

GRANT counsel’s request to withdraw and DISMISS the appeal. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge