*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, MURPHY and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

Victor Willard Hursh appeals his sentence for possession of

methamphetamine with intent to distribute and possession of ammunition after
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former conviction of a felony. Mr. Hursh pled guilty 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 frivolous 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 December 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 enhancement of Mr. Hursh’s sentence
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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 not have been relied upon in

the conviction for possession of ammunition by a felon, we find his argument

unpersuasive. More importantly, the argument constitutes a challenge to the

sufficiency of evidence to support the conviction on the ammunition charge to

which Mr. Hursh pled guilty. Such a challenge is not allowed. See United States

v. Broce, 488 U.S. 563, 569-70 (1989).

Mr. Hursh also contends there was an unlawful upward 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 guidelines.

Next Mr. Hursh argues that the district court should 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 government 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 “clearly 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 acknowledges 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
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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 affirmed findings that

were not clearly erroneous. Likewise, Mr. Hursh’s counsel is correct that in the

Eighth Circuit the burden of showing the connection between the weapon and the

drug offense to be “clearly improbable” does not shift 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 Circuit alone in placing

burden entirely on government). Our circuit’s position 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 brief, Mr. Hursh repeats his

legal argument on the impropriety of the firearm enhancement. He also contends

he did in fact provide proof that the guns’ connection to the drug offense was

“clearly improbable,” but he does not indicate what that proof was. Our review of

the record persuades us that although Mr. Hursh did present some evidence on

this point, the district court did not err in concluding 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 issue 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 relating to the authority of the
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sentencing commission. To the extent we can comprehend this argument, we find

it lacks merit. To the extent Mr. Hursh alleges ineffective 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 the statutory maximum, there can

be no Apprendi violation. United States v. Sullivan, 255 F.3d 1256, 1265 (10th

Cir. 2001). In addition, it is apparent that the sentencing 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 sentencing decision. Accordingly, we

GRANT counsel’s request to withdraw and we DISMISS the appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge