UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

BRENT BROWN,

Defendant–Appellant.

No. 09-3326

(D.C. No. 2:08-CR-20115-CM-1)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, EBEL, and LUCERO, Circuit Judges. 

 

Brent Brown appeals his conviction and sentence for possession with intent to 

distribute more than fifty grams of cocaine base. In a brief filed pursuant to Anders v. 

California, 386 U.S. 738 (1967), Brown’s counsel states that there are no non-frivolous 

arguments to present on appeal and moves for leave to withdraw. Exercising jurisdiction 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 19, 2010

Elisabeth A. Shumaker 

Clerk of Court

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under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant counsel’s motion to withdraw 

and dismiss the appeal. 

I 

 In August 2008, the Kansas City, Kansas, Police Department received information 

from a confidential informant that Brown was selling cocaine base, commonly known as 

crack cocaine. Officers arranged a controlled buy, in which the confidential informant 

purchased crack cocaine from Brown. Based on this evidence, police received a warrant 

to search Brown’s residence. Upon executing the warrant, officers found crack cocaine 

and several firearms. Searching Brown incident to his arrest, officers discovered $7,354 

in cash. Police arrested two other individuals at the scene. One of them, Lucious 

Newton, was carrying approximately $4,660 in cash. 

In September 2008, a grand jury indicted Brown on one count of knowingly and 

intentionally possessing with intent to distribute more than fifty grams of a substance 

containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and on one 

count of knowingly using firearms in the furtherance of a drug trafficking crime in 

violation of 18 U.S.C. § 924(c). 

Brown entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement with the 

government. He pled guilty to the possession with intent to distribute charge in exchange 

for the government’s dropping the firearms charge. The plea agreement included an 

agreed-upon proposed disposition, which was imposed by the district court. Brown 

expressly waived his right to appeal if the district court accepted this disposition. 

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II 

Under Anders, if an attorney examines a case and determines that an appeal 

desired by his client would be “wholly frivolous,” counsel may “so advise the court and 

request permission to withdraw.” 386 U.S. at 744. Counsel must submit a brief to both 

the appellate court and his client, pointing to anything in the record that could potentially 

present an appealable issue. Id. The client may then choose to offer argument to the 

court. Id. If, upon close examination of the record, the court determines that the appeal 

is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal. Id. 

Brown was served with a copy of counsel’s appellate brief, but did not file a response. 

The government also declined to file a brief. 

Upon review of counsel’s brief and the record as a whole, we determine that the 

only possible grounds for appeal would be: (1) that Brown did not knowingly and 

voluntarily enter into the plea agreement; (2) that the district court erred in overruling an 

objection to Brown’s Presentence Investigation Report (“PSR”); and (3) that Brown’s 

sentence was unreasonable. Any of these arguments would be frivolous. 

A 

“[W]e engage in de novo review of the question of whether the plea was knowing 

and voluntary . . . .” United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000). “To 

enter a plea that is knowing and voluntary, the defendant must have ‘a full understanding 

of what the plea connotes and of its consequence.’” United States v. Hurlich, 293 F.3d 

1223, 1230 (10th Cir. 2002) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). 

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The district court fully complied with the requirements of Fed. R. Crim. P. 11(b), and the 

record discloses Brown had a full understanding of his guilty plea and its consequences. 

Any argument to the contrary would be frivolous. 

B 

 During sentencing, Brown objected to the PSR on the ground that it treated 

Newton and Brown as having jointly undertaken criminal activity. After hearing 

argument on the matter, the district court made a factual finding that Brown and Newton 

jointly participated in a scheme to sell narcotics. This factual finding was amply 

supported by undisputed facts. Any argument that the district court clearly erred would 

be frivolous. See United States v. Martinez, 418 F.3d 1130, 1133 (10th Cir. 2005) 

(“When reviewing a district court’s application of the Sentencing Guidelines . . . we 

review any factual findings for clear error, giving due deference to the district court’s 

application of the guidelines to the facts.”). 

C 

We review a district court’s sentencing determination for abuse of discretion. Gall 

v. United States, 552 U.S. 38, 51 (2007). A sentencing court abuses its discretion if it 

imposes a sentence that is procedurally or substantively unreasonable in light of the 

factors found in 18 U.S.C. § 3553(a). United States v. Geiner, 498 F.3d 1104, 1107 (10th 

Cir. 2007). Where, as here, a defendant does not contemporaneously object to the 

sentencing procedure used, we review the procedure for plain error. United States v. 

Romero, 491 F.3d 1173, 1176-78 (10th Cir. 2007). In the absence of significant 

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procedural error, we determine the substantive reasonableness by looking to the totality 

of the circumstances. Gall, 552 U.S. at 51. “If the district court correctly calculate[d] the 

Guidelines range based upon the facts and imposes [a] sentence within that range, the 

sentence is entitled to a presumption of reasonableness.” United States v. Sutton, 520 

F.3d 1259, 1262 (10th Cir. 2008). 

The district court correctly calculated Brown’s Guidelines range, stated that it 

viewed the Guidelines as advisory, considered the § 3553(a) factors, and explained the 

basis for the sentence imposed. Moreover, the record shows no clear error in the court’s 

determination of the facts, and nothing in the record could overcome the presumption that 

Brown’s sentence was substantively reasonable. Therefore, any argument that the district 

court committed plain error in arriving at Brown’s sentence would be frivolous.

III

 For the foregoing reasons, we GRANT defense counsel’s motion to withdraw and 

DISMISS the appeal. 

 Entered for the court 

Carlos F. Lucero 

 Circuit Judge 

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