* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 14 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. VICTOR WILLARD HURSH, Defendant-Appellant. No. 01-5141 (D.C. No. 00-CR-37-K) (N. Dist. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , MURPHYand O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. Victor Willard Hursh appeals his sentence for posse ssion of methamphetamine with intent to distribute and posse ssion of ammunition after-2-

former conviction of a felony. Mr. Hursh pled guil ty to both charges and was sentenced to a term of forty-six months. Mr. Hursh ’s counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and moves for leave to withdraw as counsel. For the reasons set out below , we grant counsel’s motion to withdraw and dismiss the appeal. Anders holds that if counsel finds a case to be wholly fr ivolous after conscientious examination, he may advise the court and request permission to withdraw. Counsel must also submit to both the court and his client a brief referring to anything in the record arguably supportive of the appeal. The client may then raise any point he chooses, and the court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is in fact frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal. See id. at 744. Counsel provided Mr. Hursh with a copy of his appellate brief. Mr. Hursh in turn filed pro se an opposition to that brief as well as a later reply to the government’s brief. Mr. Hursh raises several arguments and his counsel raises a few additional points. We consider each in turn. First, in his D ecember 2001 opposition to the Anders Brief, Mr. Hursh argues that the court improperly used 24 year-old convictions to enhance his sentence. As the government details in its brief, this is simply without basis in fact. There was no enhance ment of Mr. Hursh’s sentence-3-

based on the 1976 convictions. See Appx. to Anders Br. at 34. To the extent that Mr. Hursh may simply have meant (as it appears his counsel has construed his argument) that the 24 year-old convictions should n ot have been relied upon in the conviction for possession of ammunition by a fe lon, we find his argument unpersuasive. More importantly, the argument const itutes a challenge to the sufficiency of evidence to support the conviction o n the ammunition charge to which Mr. Hursh pled guilty. Such a challenge is n ot allowed. See United States v. Broce , 488 U.S. 563, 569-70 (1989). Mr. Hursh also contends there was an unlawful upwar d departure in his case. We disagree. See Appx. to Anders Br. at 31-34, 41. Rather, the court imposed a sentence at the high end of the guideline s. Next Mr. Hursh argues that the district court shoul d not have applied a two point firearm enhancement under U.S.S.G. § 2D1.1(b) (1). We agree with the points made by Mr. Hursh’s counsel and the governme nt on this matter. Under Tenth Circuit law it is clear the defendant bears the ultimate burden of proving that although he possessed the firearm, it was “cle arly improbable” the firearm was connected with the drug offense. See United States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997). Mr. Hursh’s counsel acknowl edges that two cases from other circuits have previously found situations in which the evidence was insufficient to support a two-point enhancement. See United States v. Peters , 15-4-

F.3d 540 (6th Cir. 1994); United States v. Khang, 904 F.2d 1219 (8th Cir. 1990). However, Peters is distinguishable because the court there affirme d findings that were not clearly erroneous. Likewise, Mr. Hursh’s counsel is correct that in the Eighth Circuit the burden of showing the connectionbetween the weapon and the drug offense to be “clearly improbable” does not sh ift to the defendant as it does in the Tenth Circuit. The Eighth Circuit is alone in this regard. See United States v. Hall , 46 F.3d 62, 63 (11th Cir. 1995) (noting Eighth Ci rcuit alone in placing burden entirely on government). Our circuit’s posi tion is clear, and Mr. Hursh simply failed to carry his burden of proof on this issue. In his February 2003 reply to the government’s brie f, Mr. Hursh repeats his legal argument on the impropriety of the firearm en hancement. He also contends he did in fact provide proof that the guns’ connect ion to the drug offense was “clearly improbable,” but he does not indicate whatthat proof was. Our review of the record persuades us that although Mr. Hursh didpresent some evidence on this point, the district court did not err in concl uding he failed to carry his burden of proof. To the extent Mr. Hursh may be alleging ineffective assistance of counsel on this point, that is not an appropriate i ssue to raise on direct appeal and we do not consider it. See United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir. 1995). Mr. Hursh raises an unintelligible argument relatin g to the authority of the-5-

sentencing commission. To the extent we can compre hend this argument, we find it lacks merit. To the extent Mr. Hursh alleges in effective assistance of counsel for failing to raise this argument, we again note that direct appeal is not the proper forum for such an argument. See id. Mr. Hursh’s counsel raises and dismisses additional potential issues related
to Apprendi v. New Jersey , 530 U.S. 466 (2000), and downward departure. Because the sentence in this case did not exceed th e statutory maximum, there can be no Apprendiviolation. United States v. Sullivan , 255 F.3d 1256, 1265 (10th Cir. 2001). In addition, it is apparent that the s entencing court was aware of its ability to depart from the guidelines but declined to do so. We lack jurisdiction to review that decision. See United States v. Fagan , 162 F.3d 1280, 1282 (10th Cir. 1998). After careful review of the entire proceedings, we agree with counsel that no non-frivolous grounds for appeal appear on this record. We see nothing to indicate any error in the district court’s sentenci ng decision. Accordingly, we GRANT counsel’s request to withdraw and we DISMISS the appeal. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge