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*

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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 military in violation 

of 18 U.S.C. § 922(g)(6). On appeal, he challenged his 27-month sentence, arguing 

the criminal history calculation erroneously scored two convictions that were too old 

to be considered. See U.S.S.G. § 4A1.2(e)(2) (requiring the counting of any 

conviction “within ten years of the defendant’s commencement of the instant 

offense” if it involved a sentence of less than one year and one month). The 

 *

 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. 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 Court
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government agreed the sentence constituted reversible error, and this court vacated 

Counce’s sentence and remanded. On remand, 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 appellate counsel filed an Anders brief and moved to 

withdraw, asserting the record contained no discernible non-frivolous issues. See 

Anders v. California, 386 U.S. 738, 744 (1967) (stating that if after a “conscientious 

examination” of the record, counsel finds an appeal “wholly frivolous,” counsel may 

move to withdraw and contemporaneously file “a brief referring to anything in the 

record that might arguably support the appeal”). Counce filed a pro se response to his 

counsel’s Anders brief. The government declined to file a brief. 

In resolving this appeal, we have conducted our own review of the record in 

addition to considering the potential issues raised in counsel’s Anders brief and 

Counce’s pro se response. See id. (explaining that after counsel files an Anders brief, 

the court should examine the record to determine whether the case is “wholly 

frivolous”). 

Counsel’s Anders brief asserts that Counce could argue that the district court 

on remand imposed a substantively 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 history and characteristics of the 

defendant”). When a district court imposes a sentence within the Guidelines range, 
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we apply a rebuttable presumption that the sentence was reasonable. Sells, 541 F.3d 

at 1237. 

The district court imposed Counce’s sentence after concluding his extensive 

criminal history—which spanned 40 years 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 could not assert a nonfrivolous argument that the district court abused its discretion 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 Guidelines sentence based on 

district court’s discussion of defendant’s “off the charts” criminal history). 

Counsel’s Anders brief also posits that Counce could argue his sentence was 

procedurally unreasonable because the district court did not adequately explain its 

reasoning. Because Counce did not object below, 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 indication in the record, we would 

assume the district court weighed each § 3553(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 court explicitly considered Counce’s history 

and personal characteristics, the need to protect the public, and the crime at issue. 

Because the record contains no indication the district court failed to weigh the 

appropriate factors, any argument regarding the adequacy of the district court’s 

explanation would be frivolous. 
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Counsel’s Anders brief also asserts that Counce could argue the district court 

erred in weighing the § 3553 factors by relying 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 court is not prohibited from using information 

unscored by the Guidelines to “draw conclusions about characteristics 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) (explaining that a district court may use 

information such as law enforcement contacts to draw conclusions about the 

defendant’s character). Accordingly, we agree that any challenge to the district 

court’s reliance on Counce’s entire record in weighing the § 3553 factors would be 

frivolous. 

Counce’s pro se response also argues his sentence is unreasonable because the 

preparer of the PSR “entered inaccurate documents,” allowing the district court to 

rely on “multiple unsolved, incomplete, and open[] cases” that were in fact resolved. 

Pro se Response, at 3. But defense counsel advised the district court at the 

resentencing hearing that several outstanding warrants had been resolved, and the 

district court noted the changed 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 ineffective assistance of 

counsel on remand. Generally, such claims should be brought in collateral 

proceedings rather than on direct appeal. See United States v. Galloway, 56 F.3d 

1239, 1240 (10th Cir. 1995). And this is not the unusual case that allows us to resolve 
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an ineffective assistance 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 defense counsel’s motion to withdraw. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge