UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SONNY RAYE MCCOMBS, Defendant - Appellan t

. 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, 11 53, 2111, and 2; and one count of aiding and abetting eluding police officers in I ndian Country in violation of 18 U.S.C §§ 1151, 1152, 13, a nd 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 appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 12 months’ imprisonment on the first count and 12 months’ imprisonment on the second, to run consecutively to each other. McCombs appealed. However, hi s appellate counsel submitted an Anders brief, stating that there are no non-frivolou s claims to be br ought on appeal and seeking leave to withdraw from representing McCombs. See Anders v. California , 386 U.S. 738, 744 (1967). Up on 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 a nd dismiss the appeal.
I. McCombs’s convictions st em 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) Natio n. Following the crash, McCombs and Whitetree spotted a woman w ho had stopped her ve hicle. McCombs grabbed the driver and forced her partially out of her Nissan Sentra. Whitetree entered the front-passenger si de of the vehicle and the two men began driving away, but the woman was unable to disengage i mmediately from the frame of the vehicle and was dragged for several feet. An hour later, McCo mbs, Whitetree, and a minor in their company drove the Nissan to a stor e in Tulsa, where they stole clothing and two air pistols. Approximate ly another hour passed before law enforcement officers observed Whitetree driving th e stolen vehicle, with Mc Combs in the front passenger seat and two minors in the back passenger seats. Officers attempted to conduct a traffic stop, at which point Whitetree fl ed, leading law enforcement on a high-speed Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 23 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 sh ooting 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 ve hicle 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 charge d 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 wea pon; and using, carrying, and discharging a firearm during an d 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 ab etting robbery in Indian Country in violation of 18 U.S.C. §§ 11 51, 1153, 2111, and 2; a nd one count of aiding and abetting eluding police officers in Indian Country in viol ation 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 Presente nce Investigation Report (PSR) that calculated McCombs’s total of fense level at thirty-one; the offense level included a seven-level enhancement for di scharge of a firearm per U. S.S.G. § 2B31.1(b)(2)(A). The district court held McCombs’s se ntencing hearing on August 1, 2023. In anticipation of sentencing, McCombs file d (1) a motion for a downward variance, Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 34 arguing that the district c ourt should grant him a lesser sentence in light of the government’s dismissal of Whitetree from th e case; and (2) an objection to the sevenlevel enhancement, arguing that McCombs ha d not discharged a firearm, but rather the air pistol that he had st olen earlier that day. At sentencing the district court firs t addressed McCombs’s objection to the firearm enhancement. It noted that Mc Combs contended that only the air pistol, carbon dioxide cartridges, and pellets were re covered at the scene, and “[n]o firearm, ammunition, or shell casing was recovere d, and no bullet holes were found in the area[.]” R. Vol. III at 6. The district court also not ed that “multiple officers observed muzzle flashes” fro m 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 distri ct court then found by a preponderance of the evidence that McCombs discharged a firearm a nd thus the seven-level enhancement applied. The district court found that McCombs ha d a criminal history category of VI and that the total offense leve l was thirty-one, leading to a Guidelines range of 188 to 235 months’ imprisonment. McCombs’s c ounsel 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 trea ted differently from Wh itetree because of his extensive criminal history. The dist rict court agreed, and denied McCombs’s Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 45 motion for a downward variance on the basis of the “nature of the instant offense and the defendant’s extensive criminal hi story.” R. Vol. III at 16. The district court sentenced McComb s to a total term of 192 months’ imprisonment, at the bottom en d 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 natu re of the offense and the defendant’s criminal history and his personal characteri stics,” as well as “s entencing disparities among defendants.” Id . at 19. McCombs timely appealed on August 17, 2023. Counsel then filed the Anders brief before us. Neithe r McCombs nor the government submitted a response brief. 1
II. Appellate counsel’s “role as advocate requires that [s he] 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] s hould 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 proceed ings, to decide whether the case is wholly frivolous.” Id. If, after performing an independent revi ew of the record, we agree with counsel,

1 McCombs’s response was due on Marc h 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. Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 56 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 reasona bleness includes both a procedural component, encompassing the method by whic h 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 basi s for McCombs’s appeal that counsel identifies—that McCombs’s sentence was procedurally unreasonable because the district court incorr ectly calculated his Guidelines range. Anders Br. at 9. We review a sentence for procedural reasonabl eness 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 re viewing a sentence’s procedur al 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 cour t correctly calculat ed the recommended Guidelines range, we review de novo the district court’s legal conclusions pertaining to the Guidelines and review its factual findings . . . unde r the Guidelines for clear error.” Id. We imagine that McCombs could attemp t to argue that the district court committed clear error when it found by a preponderance of the evidence that he Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 67 discharged a firearm during th e offense. But we find no cl ear error in the district court’s decision. McCombs argued at senten cing that he could not be found to have discharged a firearm because there “was no firearm recove red, there were no clips or magazines from any firearms recovered, there was no ammunition recovered, there were no shell casings recovere d, there were no bullet hole s 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 resu lt from the discharge of an air pistol— from the vehicle, and one officer specifi cally reported observing McCombs discharge a weapon that had recoil and caused a muzzle fl ash. 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 comprehensiv e 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 offe nse level of thirty-one or his Category VI in criminal history. We thus concl ude that McCombs has no non -frivolous arguments that the Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 78 district court erred in its calculation of his Guidelines range. No procedural error occurred.
b. The only other challenge that counsel s uggests and that we can surmise is a challenge on the substantive reasona bleness 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 th e substantive reasonableness of a sentence is based on whether “the length of th e sentence is reasonable given all the circumstances of the case in light of the factors set fort h in [§ 3553(a)].” Id. at 1116 (alteration in original) (citation omitted). When a sentence fall s within the properly calculated advisory Guidelines range, th e sentence is “entitled to a rebuttable presumption of reasona bleness” 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 considerat ion of the § 3553(a) factors, the district court weighed the nature of the offense; Mc Combs’s criminal history category score; senten cing disparities; and McCombs’s prior theft, eluding, and drug convictions when it sentenced him to 192 m onths. On appeal, “[w]e do not reweigh the sentencing factors” that the di strict court already considered. United States v. Blair , 933 F.3d 1271, 1274 (10th Cir. 2019). And nothing otherwise indicates that Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 89 McCombs’s sentence fell outside of the range of “rationally available choices that facts and the law at issu e 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 discreti on when it sentenced McCombs to an inGuidelines sentence after explaining th at his sentence wa s 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 agr ee with counsel that there is no nonfrivolous basis for appeal. Accordingly, we GRANT couns el’s motion to withdraw and DISMISS the appeal.

Entered for the Court

Allison H. Eid Circuit Judge Appellate Case: 23-5094 Document: 010111090753 Date Filed: 08/06/2024 Page: 9