FILED

United States Court of Appeals

Tenth Circuit

March 28, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 15-5103

(D.C. No. 4:01-CR-00028-TCK-1)

(N.D. Okla.)

Plaintiff–Appellee,

v.

LANCE LAMAR BURKS,

Defendant–Appellant.

 

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MORITZ, Circuit Judges.

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.

Appellant Lance Burks, a federal prisoner proceeding pro se, appeals the

district court’s denial of his motion for a writ of error coram nobis.

In July 2001, Appellant pled guilty to possessing more than five grams of

crack cocaine with intent to distribute. In the plea agreement, the parties agreed

*

 This order and judgment is not binding precedent, except under the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.
Appellant would be sentenced to 240 months of imprisonment, which was within

the applicable guideline range for Appellant’s sentence as a career offender. In

accordance with this agreement, the district court imposed a 240-month sentence. 

Appellant did not appeal his conviction or sentence, and he has never filed a

motion under 28 U.S.C. § 2255 to vacate his conviction or sentence.

In 2015, Appellant filed the instant motion for a writ of error coram nobis,

arguing he should not have been sentenced as a career offender because his prior

state court drug offenses did not qualify as career offender predicates. The

district court denied this motion, concluding that Appellant was not entitled to

relief under a writ of error coram nobis because he had not shown that relief

under § 2255 was unavailable or would have been inadequate.

We see no error in this conclusion. Appellant “has failed to offer any

explanation why he could not have pursued relief under § 2255,” and “[i]t is

irrelevant that a § 2255 motion would have been untimely by the time he filed his

petition for a writ of coram nobis.” United States v. Payne, 644 F.3d 1111, 1113

(10th Cir. 2011). Thus, under our precedents it is clear that Appellant was not

entitled to coram nobis relief. See id. To the extent Appellant attempts to base

his request for a writ of error coram nobis on his claim that he was actually

innocent of the career offender enhancement, “even if a colorable claim of actual

innocence might be entitled to special treatment, his claim is not colorable.” Id.

Even if we were to recognize a claim of actual innocence for a noncapital

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sentencing enhancement, we would not do so where, as here, the claim of

innocence is based on an argument that the underlying convictions did not legally

qualify as predicate offenses justifying the sentencing enhancement. This

argument raises a claim of legal, rather than actual innocence, and thus makes no

showing of actual innocence. See Selsor v. Kaiser, 22 F.3d 1029, 1036 (10th Cir.

1994).

We AFFIRM the district court’s denial of Appellant’s motion for a writ of

error coram nobis. We also DENY Appellant’s request for the appointment of

counsel to represent him in this appeal. Appellant’s motion to proceed in forma

pauperis on appeal is GRANTED.

Entered for the Court

Monroe G. McKay

Circuit Judge

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