UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GLENN COUNCE, Defendant - Appellant. No. 15-3062 (D.C. No. 2:14-CR-20011-KHV-3) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , TYMKOVICH , and MORITZ , Circuit Judges.

________________ _________________ This case appears before us a second time. Glen Counce pled guilty to possession of a firearm after a dishonorable discharge from the mil itary in violation of 18 U.S.C. § 922(g)(6). On appeal, he challenged his 27-m onth sentence, arguing the criminal history calcula tion erroneously scored two co nvictions that were too old to be considered. See U.S.S.G. § 4A1.2(e)(2) (re quiring the counting of any conviction “within ten years of the de fendant’s commencement of the instant offense” if it involved a sentence of le ss than one year and one month). The

* 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 Ci r. 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 cited, howev er, for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 10, 2015 Elisabeth A. Shumaker Clerk of Court2 government agreed the senten ce constituted reversible erro r, and this court vacated Counce’s sentence and remanded. On re mand, an amended Presentence Report calculated the Guidelines range as 21 to 27 months’ imprisonment. The district court again imposed a 27-month sentence. In this appeal, Counce’s a ppellate counsel filed an Anders brief and moved to withdraw, asserting the record contai ned no discernible non-frivolous issues. See Anders v. California , 386 U.S. 738, 744 (19 67) (stating that if after a “conscientious examination” of the record, counsel finds an appeal “wholly frivolous,” counsel may move to withdraw and contemporaneously f ile “a brief referring to anything in the record that might arguably support the app eal”). Counce filed a pro se response to his counsel’s Anders brief. The government declin ed to file a brief. In resolving this appeal, we have conduc ted our own review of the record in addition to considering the potentia l issues raised in counsel’s Anders brief and Counce’s pro se response. See id . (explaining that afte r counsel files an Anders brief, the court should examine th e record to determine whet her the case is “wholly frivolous”). Counsel’s Anders brief asserts that Counce could argue that the district court on remand imposed a substantiv ely unreasonable sentence, i.e. that the district court abused its discretion in weighing the 18 U.S.C. § 3553(a) factors. See United States v. Sells , 541 F.3d 1227, 1237 (10th Cir. 2008); see also 18 U.S.C. § 3553(a) (listing factors district court should consider, including “the hist ory and characteristics of the defendant”). When a district court imposes a sentence w ithin the Guidelines range,3 we apply a rebuttable presumption that the sentence was reasonable. Sells , 541 F.3d at 1237. The district court imposed Counce’s se ntence after concl uding his extensive criminal history—which spanned 40 year s and included convictions ranging from disorderly conduct to robbery—reflected poorly on his character and demonstrated a need for deterrence. Given his extensive history, Counce coul d not assert a nonfrivolous argument that the dist rict court abused its disc retion in weighing the § 3553 factors. See United States v. Navarrete-Medina , 554 F.3d 1312, 1314 (10th Cir. 2009) (affirming district court’ s imposition of upper-end Gu idelines sentence based on district court’s discussion of defendant’s “off the ch arts” criminal history). Counsel’s Anders brief also posits that Coun ce could argue his sentence was procedurally unreasonable because the distri ct court did not ade quately explain its reasoning. Because Counce did not object be low, we would review a procedural sentencing challenge for plain error. United States v. Romero , 491 F.3d 1173, 1178 (10th Cir. 2007). But even absent a contrary indi cation in the record, we would assume the district court weighed each § 355 3(a) sentencing factor, even if the court did not explicitly refer to those factors. United States v. Rose , 185 F.3d 1108, 1110- 11 (10th Cir. 1999). Here, the district cour t explicitly considered Counce’s history and personal characteristics, the need to protect the pub lic, and the crime at issue. Because the record contains no indication the district court failed to weigh the appropriate factors, any argument regardi ng the adequacy of the district court’s explanation would be frivolous.4 Counsel’s Anders brief also asserts that Counce could argue the district court erred in weighing the § 3553 factors by re lying on “unscored” convictions and law enforcement contacts that were more than ten years old, an argument Counce echoes in his pro se response. But a district c ourt is not prohibited from using information unscored by the Guidelines to “draw conclu sions about characteri stics relevant to sentencing factors enumerated in 18 U.S.C. § 3553(a).” See United States v. Mateo , 471 F.3d 1162, 1167-68 (10th Cir. 2006) (expl aining that a district court may use information such as law enforcement contacts to dr aw conclusions about the defendant’s character). Accord ingly, we agree that any challenge to the district court’s reliance on Counce’s en tire record in weighing the § 3553 factors would be frivolous. Counce’s pro se response also argues hi s sentence is unreasonable because the preparer of the PSR “entered inaccurate documents,” allo wing the district court to rely on “multiple unsolved, incomplete, and ope n[] cases” that were in fact resolved. Pro se Response, at 3. But defense couns el advised the district court at the resentencing hearing that several outsta nding warrants had been resolved, and the district court noted the change d status at the hearing. We see no indication the district court relied on erroneous information in reaching its sentencing decision. Finally, Counce’s pro se response argues he received ineffect ive assistance of counsel on remand. Generally, such cl aims should be brought in collateral proceedings rather th an on direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). And this is not the unusual ca se that allows us to resolve5 an ineffective assist ance of counsel claim without the district court first developing and evaluating the factual record. See id

. Because Counce’s appeal presents no issues arguable on their merits, we dismiss the appeal and grant defe nse counsel’s motion to withdraw.

Entered for the Court
Nancy L. Moritz Circuit Judge