*

This order and judgment is not binding precedent except under the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

September 17, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 07-5154

v. (N.D. Oklahoma)

CLINTON RAY McKEE,

Defendant - Appellant.

(D.C. No. 4:07-CR-00090-TCK)

ORDER AND JUDGMENT*

Before PORFILIO, ANDERSON, and BRORBY, 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.

Defendant and appellant Clinton Ray McKee pled guilty to two counts of

making a false statement to a financial institution, in violation of 18 U.S.C.

§ 1014; one count of misapplication of bank funds, in violation of 18 U.S.C.
-2-

§ 656; and one count of misapplication of credit union funds, in violation of 18

U.S.C. § 657. He was sentenced to twenty-one months’ imprisonment on each

count, to run concurrently, followed by five years of supervised release. McKee

was also assessed $100 for each count, and ordered to pay restitution in the

amount of $28,702.66. He seeks to appeal that conviction and/ or sentence.

During the plea colloquy prior to the entry of his guilty plea, the court

specifically established that McKee was competent, that he was satisfied with his

counsel, that he was pleading without coercion, that he was aware of the charges

against him and the range of punishment, and that he knew what trial rights he

waived by pleading guilty. In preparation for sentencing, the United States

Probation Office prepared a presentence report (“PSR”). The PSR calculated the

applicable offense level as 16, which, with a criminal history category of I,

yielded an advisory sentencing range under the United States Sentencing

Commission, Guidelines Manual (USSG), of 21 to 27 months. At sentencing,

McKee made no objection to the PSR. The court then sentenced McKee to

twenty-one months’ imprisonment, at the low end of the advisory Guideline

range.

McKee’s retained counsel, Beverly A. Atteberry, has filed an Anders brief

and has moved to withdraw as counsel. See Anders v. California, 386 U.S. 738

(1967). McKee has not filed a response and the government has declined to file a

brief. We therefore base our conclusion on counsel’s brief and our own careful
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review of the record. For the reasons set forth below, we agree with Ms.

Atteberry that the record in this case provides no nonfrivolous basis for an appeal,

and we therefore grant her motion to withdraw and dismiss this appeal.

Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930

(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel

to:

submit a brief to the client and the appellate court indicating any

potential appealable issues based on the record. The client may then

choose to submit arguments to the court. The court must then

conduct a full examination of the record to determine whether

defendant’s claims are wholly frivolous. If the court concludes after

such an examination that the appeal is frivolous, it may grant

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

Id. (citing Anders, 386 U.S. at 744). As indicated, McKee’s counsel has filed her

Anders brief, to which neither McKee nor the government has responded. 

This appeal could conceivably have merit only if the guilty plea was

involuntary or otherwise invalid, or the sentence imposed was unreasonable. 

After fully examining the record, we agree with counsel that there is no basis in

law or fact for either of these arguments.

“A valid guilty plea must be knowingly, intelligently, and voluntarily

made.” United States v. Gay, 509 F.3d 1334, 1337 (10th Cir. 2007) (citing United

States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); Fed. R. Crim. P. 11). The
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record reveals nothing that would cast doubt on the validity of McKee’s guilty

plea.

Furthermore, “[w]e review sentences for reasonableness under a deferential

abuse of discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th

Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 591 (2007)). 

“Reasonableness review is comprised of a procedural component and a

substantive component.” Id. Procedural unreasonableness occurs “if the district

court incorrectly calculates or fails to calculate the Guideline sentence, treats the

Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly

erroneous facts, or inadequately explains the sentence.” Id. A sentence is

substantively unreasonable if its length “is unreasonable given the totality of the

circumstances in light of the 18 U.S.C. § 3553(a) factors.” Id.

We agree with Ms. Atteberry that there is no nonfrivolous ground in the

record on which to appeal the imposition of the sentence in this case following

McKee’s guilty plea. For the foregoing reasons, we GRANT counsel’s motion to

withdraw and DISMISS this appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge