UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

SONNY RAYE MCCOMBS, 

 Defendant - Appellant. 

No. 23-5094 

(D.C. No. 4:20-CR-00262-GKF-1) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before EID, KELLY, and ROSSMAN, Circuit Judges.*

_________________________________ 

Sonny Raye McCombs pleaded guilty to one count of aiding and abetting 

robbery in Indian Country in violation of 18 U.S.C. §§ 1151, 1153, 2111, and 2; and 

one count of aiding and abetting eluding police officers in Indian Country in 

violation of 18 U.S.C §§ 1151, 1152, 13, and 2; and 21 Okla. Stat. Ann. §§ 540A(A) 

and (B). The district court sentenced McCombs to 192 months’ imprisonment—180 

* 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 consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 6, 2024

Christopher M. Wolpert 

Clerk of Court

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months’ imprisonment on the first count and 12 months’ imprisonment on the second, 

to run consecutively to each other. 

McCombs appealed. However, his appellate counsel submitted an Anders

brief, stating that there are no non-frivolous claims to be brought on appeal and 

seeking leave to withdraw from representing McCombs. See Anders v. California, 

386 U.S. 738, 744 (1967). Upon an independent review of the record, we agree that 

there are no non-frivolous arguments that McCombs may bring on appeal. We thus 

grant counsel’s motion and dismiss the appeal. 

I. 

McCombs’s convictions stem from a 2016 incident in which McCombs and 

another man, Chekota Whitetree, caused a multi-car collision in Tulsa, Oklahoma, 

within the boundaries of the Muscogee (Creek) Nation. Following the crash, 

McCombs and Whitetree spotted a woman who had stopped her vehicle. McCombs 

grabbed the driver and forced her partially out of her Nissan Sentra. Whitetree 

entered the front-passenger side of the vehicle and the two men began driving away, 

but the woman was unable to disengage immediately from the frame of the vehicle 

and was dragged for several feet. An hour later, McCombs, Whitetree, and a minor 

in their company drove the Nissan to a store in Tulsa, where they stole clothing and 

two air pistols. Approximately another hour passed before law enforcement officers 

observed Whitetree driving the stolen vehicle, with McCombs in the front passenger 

seat and two minors in the back passenger seats. Officers attempted to conduct a 

traffic stop, at which point Whitetree fled, leading law enforcement on a high-speed 

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chase. During the chase, McCombs leaned out of the vehicle and pointed “what 

appeared to be a black, semiautomatic pistol” at officers. R. Vol. II at 7. Officers 

observed McCombs “taking a supported shooting position while aiming the pistol, 

pulling the trigger, and absorbing recoil,” as well as muzzle flashes from the weapon 

possessed by McCombs. Id. Police ultimately disabled the vehicle and apprehended 

McCombs. Two of the occupants of the vehicle reported to the police that at least 

one .22 pistol had been present in the vehicle at the time of the chase. 

On April 5, 2021, McCombs was charged via superseding indictment with 

three counts of robbery in Indian Country; theft in Indian Country; eluding police 

officers in Indian Country; assault with a dangerous weapon; and using, carrying, and 

discharging a firearm during and in relation to a crime of violence. Pursuant to plea 

negotiations, the government ultimately filed a two-count information charging 

McCombs with one count of aiding and abetting robbery in Indian Country in 

violation of 18 U.S.C. §§ 1151, 1153, 2111, and 2; and one count of aiding and 

abetting eluding police officers in Indian Country in violation of 18 U.S.C. §§ 1151, 

1152, 13, and 2; and 21 Okla. Stat. Ann. §§ 540A(A) and (B). On May 16, 2022, 

McCombs pleaded guilty to both counts. 

The Probation Office prepared a Presentence Investigation Report (PSR) that 

calculated McCombs’s total offense level at thirty-one; the offense level included a 

seven-level enhancement for discharge of a firearm per U.S.S.G. § 2B31.1(b)(2)(A). 

The district court held McCombs’s sentencing hearing on August 1, 2023. In 

anticipation of sentencing, McCombs filed (1) a motion for a downward variance, 

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arguing that the district court should grant him a lesser sentence in light of the 

government’s dismissal of Whitetree from the case; and (2) an objection to the sevenlevel enhancement, arguing that McCombs had not discharged a firearm, but rather 

the air pistol that he had stolen earlier that day. 

At sentencing the district court first addressed McCombs’s objection to the 

firearm enhancement. It noted that McCombs contended that only the air pistol, 

carbon dioxide cartridges, and pellets were recovered at the scene, and “[n]o firearm, 

ammunition, or shell casing was recovered, and no bullet holes were found in the 

area[.]” R. Vol. III at 6. The district court also noted that “multiple officers 

observed muzzle flashes” from the car, and “at least one [officer] observed muzzle 

flashes from the firearm possessed by Mr. McCombs.” Id. at 6–7. Further, two of 

the occupants of the stolen car confirmed that there were a .22 pistol and an air pistol 

in the vehicle during the pursuit. The district court then found by a preponderance of 

the evidence that McCombs discharged a firearm and thus the seven-level 

enhancement applied. 

The district court found that McCombs had a criminal history category of VI 

and that the total offense level was thirty-one, leading to a Guidelines range of 188 to 

235 months’ imprisonment. McCombs’s counsel then orally requested a downward 

variance on the basis that Whitetree’s case had been dismissed, and McCombs should 

not be treated significantly more harshly than Whitetree. The government contended 

in response that McCombs ought to be treated differently from Whitetree because of 

his extensive criminal history. The district court agreed, and denied McCombs’s 

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motion for a downward variance on the basis of the “nature of the instant offense and 

the defendant’s extensive criminal history.” R. Vol. III at 16. 

The district court sentenced McCombs to a total term of 192 months’ 

imprisonment, at the bottom end of the Guidelines range. In announcing its sentence, 

the district court considered the 18 U.S.C. § 3553(a) sentencing factors to determine 

McCombs’s sentence. It noted “the nature of the offense and the defendant’s 

criminal history and his personal characteristics,” as well as “sentencing disparities 

among defendants.” Id. at 19. McCombs timely appealed on August 17, 2023. 

Counsel then filed the Anders brief before us. Neither McCombs nor the government 

submitted a response brief.1

 

II. 

Appellate counsel’s “role as advocate requires that [she] support [her] client’s 

appeal to the best of [her] ability.” Anders, 386 U.S. at 744. However, when counsel 

for the defendant has found the case to be “wholly frivolous, after a conscientious 

examination of it, [she] should so advise the court and request permission to 

withdraw.” Id. Once counsel files an Anders brief, this Court must conduct a “full 

examination of all the proceedings, to decide whether the case is wholly frivolous.” 

Id. If, after performing an independent review of the record, we agree with counsel, 

1

 McCombs’s response was due on March 1, 2024. On June 10, 2024, 

McCombs filed a motion for extension of time to file a response, but did not file a 

response. His motion was denied. 

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then we may grant her request to withdraw and dismiss the appeal. Id. In this case, 

we agree with counsel. 

a. 

“Our appellate review for reasonableness includes both a procedural 

component, encompassing the method by which a sentence was calculated, as well as 

a substantive component, which relates to the length of the resulting sentence.” 

United States v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011). McCombs 

frivolously challenges both components on appeal. 

We begin with the first possible basis for McCombs’s appeal that counsel 

identifies—that McCombs’s sentence was procedurally unreasonable because the 

district court incorrectly calculated his Guidelines range. Anders Br. at 9. We 

review a sentence for procedural reasonableness by applying the abuse of discretion 

standard to the district court’s decision. See United States v. Smart, 518 F.3d 800, 

805 (10th Cir. 2008). In reviewing a sentence’s procedural reasonableness, we look 

at, among other things, whether the district court properly calculated a defendant’s 

Guidelines range. United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008). “In 

determining whether the district court correctly calculated the recommended 

Guidelines range, we review de novo the district court’s legal conclusions pertaining 

to the Guidelines and review its factual findings . . . under the Guidelines for clear 

error.” Id. 

We imagine that McCombs could attempt to argue that the district court 

committed clear error when it found by a preponderance of the evidence that he 

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discharged a firearm during the offense. But we find no clear error in the district 

court’s decision. McCombs argued at sentencing that he could not be found to have 

discharged a firearm because there “was no firearm recovered, there were no clips or 

magazines from any firearms recovered, there was no ammunition recovered, there 

were no shell casings recovered, there were no bullet holes in any police cars, and no 

one was shot.” R. Vol. I at 42. “The existence of reasonable doubt . . . does not 

preclude the sentencing court from finding by a preponderance of the evidence that 

the conduct occurred.” United States v. Mendez-Zamora, 296 F.3d 1013, 1019 (10th 

Cir. 2002). While there was no firearm recovered, two of the people in the stolen 

vehicle confirmed that there was a .22 pistol in the car. Multiple officers reported 

seeing muzzle flashes—which would not result from the discharge of an air pistol—

from the vehicle, and one officer specifically reported observing McCombs discharge 

a weapon that had recoil and caused a muzzle flash. Further, it is unlikely that shell 

casings would be recovered from a high-speed chase where the defendant was 

leaning out of a window, presumably ejecting shell casings from the firearm into the 

street rather than back into the vehicle. See also R. Vol. III at 15 (opining on 

likelihood of shell casings falling outside of the vehicle given McCombs’s position). 

The district court relied on comprehensive evidence from multiple sources to make 

its finding. We find no error. 

There is no other indication in the record that the district court incorrectly 

calculated McCombs’s total offense level of thirty-one or his Category VI in criminal 

history. We thus conclude that McCombs has no non-frivolous arguments that the 

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district court erred in its calculation of his Guidelines range. No procedural error 

occurred. 

b. 

The only other challenge that counsel suggests and that we can surmise is a 

challenge on the substantive reasonableness of McCombs’s sentence. Anders Br. at 

10–11. We see no non-frivolous argument here either. We review substantive 

reasonableness for abuse of discretion. See United States v. Sayad, 589 F.3d 1110, 

1116 (10th Cir. 2009). An inquiry into the substantive reasonableness of a sentence 

is based on whether “the length of the sentence is reasonable given all the 

circumstances of the case in light of the factors set forth in [§ 3553(a)].” Id. at 1116 

(alteration in original) (citation omitted). When a sentence falls within the properly 

calculated advisory Guidelines range, the sentence is “entitled to a rebuttable 

presumption of reasonableness” on appeal. United States v. Alvarez–Bernabe, 626 

F.3d 1161, 1165 (10th Cir. 2010). 

Because McCombs’s sentence fell within the Guidelines range, he must show 

that his sentence was unreasonable in light of the 18 U.S.C. § 3553(a) sentencing 

factors. See id. at 1167. He cannot. In consideration of the § 3553(a) factors, the 

district court weighed the nature of the offense; McCombs’s criminal history 

category score; sentencing disparities; and McCombs’s prior theft, eluding, and drug 

convictions when it sentenced him to 192 months. On appeal, “[w]e do not reweigh 

the sentencing factors” that the district court already considered. United States v. 

Blair, 933 F.3d 1271, 1274 (10th Cir. 2019). And nothing otherwise indicates that 

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McCombs’s sentence fell outside of the range of “rationally available choices that 

facts and the law at issue can fairly support.” Id. (quoting United States v. Martinez, 

610 F.3d 1216, 1227 (10th Cir. 2010)). Indeed, no other facts in the record indicate 

the district court abused its discretion when it sentenced McCombs to an inGuidelines sentence after explaining that his sentence was disparate from the 

treatment of Whitetree because of his extensive criminal history. No abuse of 

discretion occurred, thus, any appeal on this issue is frivolous. 

III. 

For the reasons stated above, we agree with counsel that there is no nonfrivolous basis for appeal. Accordingly, we GRANT counsel’s motion to withdraw 

and DISMISS the appeal. 

Entered for the Court 

Allison H. Eid 

Circuit Judge 

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