FILED United States Court of Appeals Tenth Circuit 

### November 6, 2018 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES CORNELIUS CHRISTIAN, Defendant - Appellant. No. 18-6069 (D.C. No. 5:17-CR-00068-R-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , HOLMES , andMATHESON , Circuit Judges.
Defendant-Appellant James Cornelius Christian was found guilty of one count of being a felon in posse ssion of a firearm in violation of 18 U.S.C. § 922(g)(1) and received an enhan ced sentence under the Armed C areer Criminal Act (“ACCA”), 18 U.S.C . § 924(e)(1), of 235 months’ imprisonment. After Mr. Christia n filed a pro se request for direct appeal, his counsel filed

* After examining the briefs and the appellate record, this panelhas determined unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case i s therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the cas e, res judicata, and collateral estoppel. It may be cited, however, for its persuas ive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule32.1.both a motion to withdraw and anappellate brief pursuant to Anders v. California , 386 U.S. 738 (1967), to which Mr. Christian then filed a resp onse. For the reasons that follow, we affirm the judgment of the district court. We also grant the request of Mr. Christian’s counsel to withdraw.

I In February 2017, Mr. Christian so ld a 9mm pistol in the parkin g lot of an Oklahoma City, Oklahoma, Lowe’s to an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). The transac tion was the culmination of negotiations that were conducted through recorde d phone calls and text messages and brokered by a paid confidential informant . In March 2017, a one-count indictment was filed in the United States Dis trict Court for the Western District of Oklahom a charging that Mr. Christian, a convicted felon, violated 18 U.S.C. § 922(g)(1) by knowingly possessing a9mm pistol. In May 2017, a two-count superseding indictment was filed which added another felon-in-possession ch arge for knowingly possessing a s econd pistol that had also been discussed with the ATF agent. At his October 2017 trial, Mr. Christian testified that he had been entrapped and was thus not gu ilty of either count. According t o Mr. Christian, the confidential info rmant befriended him a year pri or, and they quickly developed a close, sexual relationship. He stated thatshe supplied

2him with drugs and money but constantly pressured him to acquir e guns and to help her to sell them, leading him to eventually acquiesce. Th e district court subsequently instructed the jury on entrapment as to both count s, and the jury, through a general verdict, found Mr. Christian guilty with resp ect to Count Two but not guilty with respect to Count One. At sentencing, Mr. Christian’s Guidelines imprisonment range wa s 235 to 295 months. He objected to his Presentence Investigation Re port on the grounds that he should receive a downward adjustment for accept ance of responsibility, and defense counsel also filed a motion for a d ownward departure or variance. The district court overruled the object ion, denied the departure and variance requests, and imposed a sentence of 235 months’ imprisonment. Two days after he received his sentence, Mr. Christian timely f iled a pro se request for a direct appeal. His counsel subsequently filedan Anders brief and a motion to withdraw, and Mr. Christian filed a brief in re sponse. II In Anders , the Supreme Court held that, if defense counsel determines that their client’s appeal is “wholly frivolous,” they “should so advise the court and request permission to withdraw.” 386 U.S. at 744. A s part of this process, counsel must also submit “a brief referring to anythin g in the record

3that might arguably support the appeal,” and the client may the n choose to offer additional arguments in response to counsel’s Anders brief. Id. At that point, the court must conduct “a full examination of all the pr oceedings” and determine whether the case is indeed “wholly frivolous.” Id. In his Anders brief, Mr. Christian’s couns el identifies the following potentially appealable issues, none of which, according to his counsel, is nonfrivolous: (A) Mr. Christian was wrongfully convicted becaus e the evidence used against him was discovered through entrapment, (B ) Mr. Christian received an unreasonably excessive sentence, and (C) a variety of Mr. Christian’s rights were vio lated during the prosecution of his case. In his pro se response to counsel’s Anders brief, Mr. Christian repeats some of these claims and adds another: (D) Mr. Christian received ineffective assistance of counsel. We address each of these four issues below. A Mr. Christian states that he w as found not guilty on Count One “based on an entrapment defense,” and thus his arrest was “illegal” an d his case “void ab initio.” Resp. to Anders Br. at 1. Specifically, Mr. Christian seeks to apply the exclusionary rule as a remedy for his ostensible e ntrapment: Were it not for the entrapment and th erefore “illegal” arrest, he ar gues, the evidence

4that was the basis for Count Two would not and could not have b een discovered. Mr. Christian’s claim cannot succeed for two independent reason s. The first is that his contention that he was found not guilty on Co unt One basedon an entrapment defense “is necessarily speculative. Because the jury returned a general verdict, [Mr. Christian] can only speculate on which bases the jury” found him not guilty. Ryan Dev. Co., L.C. v. Indiana Lumbermens Mut. Ins. Co. , 711 F.3d 1165, 1172 (10th Cir. 2013); see also United States v. Alexander , 817 F.3d 1205, 1214 (10th Cir. 2016) (stating that a general verdict makes it “impossible to determine which basis the jury actually relied upon” in reaching its determination). Second, even if Mr. Christian de finitively had been acquitted o n the basis of entrapment, the exclusionary rule would still not appl y. After all, “the principal reason behind the adoption of the exclusionary rule was the Government’s ‘failure to obs erve its own laws.’” United States v. Russell , 411 U.S. 423, 430 (1973) (quoting Mapp v. Ohio , 367 U.S. 643, 659 (1961));

see also United States v. Knox , 883 F.3d 1262, 1273 ( 10th Cir. 2018) (describing the exclusionary rule as “a disincentive for law en forcement to engage in unconstitutional activity”). Such a governmental fai lure to act lawfully does not necessarily inhere in the entrapment setting; more specifically, the entrapment defense “‘focuses on the intent orpredisposition 5of the defendant’ rather than on a judgment about the proprietyof the conduct of government agents.” United States v. Dyke , 718 F.3d 1282, 1285 (10th Cir. 2013) (Gorsuch, J.) (internal alterations omitted) (quoting Russell , 411 U.S. at 429); cf. id. (“The Supreme Court has since reminded us—regularly—that we are not to reverse convictions s imply to punish bad behavior by governmental agents, but should do so only when the bad behavior precipitate s serious prejudice to some recognized legal right of the particular defe ndant before us.”). In sum, Mr. Christian’s invocation of the remedial sche me of the exclusionary rule to provide relief regarding his ostensible sh owing of entrapment as to Count One is pr edicated on an “analogy” betwee n the two doctrines that is fundamentally “imperfect” and unpersuasive. Russell , 411 U.S. at 430. B Mr. Christian’s counsel suggests that Mr. Christian believes hi s sentence is excessive. See Anders Br. at 3. But, as counsel also suggests, no nonfrivolous basis exists for cha llenging Mr. Christian’s sente nce. This Court reviews sentences for reasonableness, applying a def erential abuse-of-discretion standard, see, e.g. , United States v. Sayad , 589 F.3d 1110, 1116 (10th Cir. 2009), and sentences imposed within the correct ly calculated Guidelines range may be presumed reasonable on appeal, see, e.g. , United

6States v. Haley , 529 F.3d 1308, 1311 (10th Cir. 2008). Mr. Christian’s Guidelines range was 235 to 293 months, and he received a 235-m onth sentence. We detect nothing that suggests the Guidelines range was incorrectly calculated, or that Mr. Christian can rebut the sen tence’s presumptive reasonableness. The district court’s clearly discretionary decision to deny Mr. Christian a downward departure is unreviewable. See United States v. Angel-Guzman , 506 F.3d 1007, 1019 (10th Cir. 2007) (“Even after Booker , ‘[t]his court has no jurisdiction . . . to review a district court’s discretionary d ecision to deny a motion for downward departure on the ground that a defendant’s circumstances do not warrant the departure.’” (alteration and o mission in original) (quoting United States v. Fonseca , 473 F.3d 1109, 1112 (10th Cir. 2007)). And though we may review th e district court’s decision to deny Mr. Christian a downward variance, see, e.g. , United States v. Godinez-Perez , 864 F.3d 1060, 1069 (10th Cir. 2016), there is no indication that t he district court abused its discretion in this denial. C Mr. Christian and his counsel m ention a host of other potential claims relating to the prosecution of his case. These include argumen ts that his Fourth Amendment rights were vio lated through an improper execu tion of a

7warrant and an illegal search and seizure; that his Fifth Amend ment rights were violated through compelled self-incrimination; that his Si xth Amendment rights were violated because he was denied evidence in his favo r despite making a request for it; that his due process rights were viola ted because he was not aware of the allegations and evidence to be used agains t him; that the government tampered with evidence and lied about which witnesse s it planned to use; that, in a letter to defense counsel, the government ma de reference to the ACCA in order to threaten him and entice him to plead guilty; and that his continued detention violates his Thirteenth Amendment rights. See Resp. to Anders Br. at 1–2; Anders Br. at 17–18. After thoroughly examining the r ecord and the applicable law, w e find that there is no viable bas is for any of these claims. D Finally, Mr. Christian repeatedly claims ineffective assistance of counsel. See Resp. to Anders Br. at 1–3, 5. But ordinarily such claims should be brought in a collateral pro ceeding; when brought on direct appeal, ineffective assistance of counsel claims are “presumptively dis missible, and virtually all will be dismissed.” United States v. Wells , 873 F.3d 1241, 1271 (10th Cir. 2017) (quoting United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). This is t o ensure that we review ineffe ctive assistance

8of counsel claims only when the factual record is fully develop ed, and further because “[a]n opinion by the district court is a valuable aid t o appellate review for many reasons, not the least of which is that in mostcases the district court is familiar with the proceedings and has observe d counsel’s performance, in context, firsthand.” United States v. Brooks , 438 F.3d 1231, 1242 (10th Cir. 2006) (quoting Galloway , 56 F.3d at 1240). We discern nothing here that justifies making an exception to this princip le. III Our careful review of the Anders brief, Mr. Christian’s response brief, and the record leads us to the conclusion that there are no non frivolous grounds to support this appeal. We thus AFFIRM the district court’s judgment and GRANT counsel’s motion to withdraw.

ENTERED FOR THE COURT

Jerome A. Holmes Circuit Judge

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