UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ALFONZO J. FISHER, Defendant - Appellant. No. 18-3234 (D.C. No. 6:16-CR -10001-EFM-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Alfonzo J. Fisher pleaded guilty to bei ng a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The district court sentenced Fisher to 84 months in prison. Fisher appealed. Fisher’s appointed couns el, an assistant fede ral public defender, filed two Anders briefs advising the court that he has found no non frivolous bases for appeal and seeking leave to withdraw. See Anders v. California , 386 U.S. 738 (1967). Fisher has filed responses. Af ter reviewing the record and appellate filings, we grant counsel’s motion to withdraw and dismiss the appeal.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 4, 2019 Elisabeth A. Shumaker Clerk of Court2 BACKGROUND On October 5, 2015, a front-desk worker at a recreation center in Wichita, Kansas, saw a man—later identi fied as Fisher—entering a truck that the worker knew belonged to Kody Scott. At the time, Sco tt was lifting weights at the center. The worker told Scott about the intruder. Sc ott went outside to the parking lot and checked his truck for belongings. Noticing that his loaded firearm was missing from the center console, Scott approached Fisher, who was walking away. Scott demanded that Fisher return his firearm. After first denying that he had the firearm, Fisher eventually returned Scott’s firearm to hi m and pleaded, “please just let me go.” R. vol. III at 44. Inst ead, Scott and several bystanders “blocked [Fisher] in . . . and waited until the officers arrived.” Id. at 47. When police arrived, they arrested Fisher and sear ched his backpack, finding Scott’s lunch. Fisher deni ed having been in Scott’s truck but admitted having possessed the firearm. Fisher claimed that he had foun d and taken the firearm from a planter outside the recreation center. In January 2016, a federal grand jury re turned a one-count indictment charging Fisher with possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). Fisher moved to plead nolo contendere. As grounds, Fish er claimed that he had recently screened positive for de mentia, that he suffered from memory loss, and that he did not remember the underlying facts of the offense. Fisher relied on the evaluation of Dr. Blanchard, a psychologist , who had examined Fisher. Dr. Blanchard noted that during testing, Fisher struggled particularly with verbal fluency, memory,3 language, and visuospatial skills. Dr. Blanchard f ound a “pretty reasonable likelihood” that Fisher suffered from “some kind of dementia process” or “neurocognitive deficit. ” R. vol. III at 82, 86. But Dr. Blanchard concluded that “there was nothing that was so poignant as to warrant a diagnosis outside of his report of substance abuse.” Id. at 84. The government opposed Fisher’s motion to plead nolo contendere, noting that Fishe r’s competency was not in question and finding no circumstances warran ting a plea of nolo contende re. The court agreed with the government because Fisher’s case di d not represent an “extraordinary” or “unusual” case. In June 2018, Fisher pleaded guilty to the indictment’s sole count. Before accepting Fisher’s plea, the court advised hi m of the maximum pe nalties he faced and of the rights he would waive by pleading guilty. Fisher acknowledged that he understood. In obtaining a factua l basis for Fisher’s plea, th e court asked Fisher if “in October of 2015, here in Kansas . . . you pulled from your pocket a Smith & Wesson .40 caliber semi-automatic handgun, whic h means that you had in your possession this handgun, even though you were not authorized to do that.” R. vol. III at 14. Fisher stated that was “correct.” Id. The court then asked Fisher if he had been convicted of a felony before he had been found with the gun. Fish er replied that he had. Satisfied with this factual basis, the court accepted Fi sher’s guilty plea. In preparation for Fisher’s sentencing hearing, a probation officer prepared a presentence investigation report (PSR). In the report, the probation officer recommended a base offense level of 14 under U.S. Sentencing Guidelines Manual4 § 2K2.1(a)(6) (U.S. Sentencing Comm’n 2014) , together with six additional offense levels from two specific offense characteristics—two levels under § 2K2.1(b)(4)(A) because the offense involved a stolen firearm, and four levels under § 2K2.1(b)(6)(B) because Fisher had possessed the firearm in connection with another felony offense (the automobile burglary in which he had obtained the fi rearm). The officer recommended reducing this adjusted offe nse level by three le vels for Fisher’s acceptance of responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1(b) (U.S. Sentencing Comm’n 2013). Before sent encing, Fisher filed written objections to the two enhancements—denying having bur glarized the automobile and taken the firearm from inside it. The district court rejected these obj ections, finding by a preponderance that Fisher had possessed a stolen firearm in connection with the automobile burglary. After giving Fisher credit for acceptan ce of responsibility, the court calculated Fisher’s total offense level at 17 a nd his criminal-history category at VI

. This left Fisher with an advisory guideline range of 51 to 63 months’ im prisonment. The court varied upward, sentencing Fisher to 84 m onths of imprisonmen t. Fisher timely appealed. DISCUSSION Under Anders v. California , 386 U.S. 738 (1967), appellate counsel may “request permission to withdraw where c ounsel conscientiously examines a case and determines that any appeal would be wholly frivolous.” United States v. Calderon ,5 428 F.3d 928, 930 (1 0th Cir. 2005) (citing Anders , 386 U.S. at 744). We have detailed the proces s accompanying an Anders brief as follows: Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. The client may then choose to submit argum ents to the court. The Court must then conduct a full exam ination of the record to determine whether defendant’s claims are wholly frivolous . If the court concludes after such an examination that the app eal is frivolous, it may gr ant counsel’s motion to withdraw and may dismiss the appeal. Id. (citations omitted) (citing Anders , 386 U.S. at 744). Here, counsel filed an Anders brief claiming that Fi sher had no nonfrivolous issues for appeal. In his Anders brief, counsel details why Fisher has no basis to attack the district court’s refusal to allow him to plead nolo contendere. Further, counsel explains why it would be frivolous to attack either Fi sher’s conviction or sentence. In a supplemental Anders brief, addressing the intervening decision in United States v. Rehaif , 139 S. Ct. 2191, 2200 (2019), c ounsel identifies how Fisher’s factual basis satisfied Rehaif ’s new requirement for felon- in-possession cases that the government prove a defendant knows of his prohibited status (here, Fisher’s felony status) when possessing the firearm. Fisher filed res ponses, complaining that the district court had not told him at his change-of-plea hear ing that it would apply the two specific-offense characteristics in cal culating his advisory sentencing range and asking for appointment of different counsel. After a careful review of the record and the briefs, we agree with counsel that Fisher has no nonfrivol ous ground for appeal.6 I. Fisher’s Guilty Plea
A. The District Court Did Not Abus e Its Discretion by Denying Fisher’s Request to Plead Nolo Contendere. Before pleading guilty, Fisher filed a motion asking permission to enter a nolo contendere plea. In support, Fisher cl arified that he did not deny the factual allegations but relied on his claimed cognitiv e deterioration, whic h he said kept him from laying a factual basis for a guilty plea. The district court denied Fisher’s mo tion to plead nolo contendere. In doing so, the court considered and carefully wei ghed twelve factors traditionally relied on when determining the appropriateness of a nolo plea. 1 Ultimately, the court concluded that Fisher’s case did not present any extraordinary or unusual circumstances for which the nolo plea was designed. The court did not abuse its discretion when it ma de this ruling. Under Federal Rule of Criminal Pro cedure 11(a), a defendant may plead nolo contendere with “the court’ s consent.” We have ruled th at “the acceptance of such plea is a matter solely within the di scretion of the [district] court.” United States v.

1 Those factors were (1) “the position of the Government;” (2) the violations’ nature; (3) the violations’ duration; (4) “pri or violations;” (5) the conduct’s impact on the public; (6) the plea’s dete rrent effect; (7) “whether acceptance of the plea would be discriminatory or incong ruous;” (8) the defendant’s “unique circumstances;” (9) whether the defendant has “firsthand knowledge of facts that would be sufficient to constitute a factual basis for a guilty plea;” (10) “whether a trial would be lengthy or expensive; (11) whether the nolo plea wo uld undermine the public’s confidence in the criminal justice sy stem;” and (12) if there “is a risk of accepting a plea from an innocent defendant.” R. vol. I at 33 (citing United States v. McGill , 128 F. Supp. 3d 863, 871–74 (E.D. Pa. 2015); United States v. AEM, Inc. , 718 F. Supp. 2d 1334, 1336–40 (M.D. Fla. 2010)).7 Soltow , 444 F.2d 59, 60 (10th Cir. 1971). Though Rule 11(a) permits a district court to accept a nolo contendere plea, nothing requires a court to do so. United States v.
Buonocore , 416 F.3d 1124, 1130–31 (10th Cir. 2005) (affirmi ng a district court’s refusal to allow a nolo plea, consistent with the district court’s general policy against allowing those pleas). Here, th e district court acted within its discretion in declining to allow Fisher to plead nolo contendere, a nd we agree with his a ppellate counsel that any argument to the cont rary would be frivolous. B. The District Court Did Not Commit Any Reversible Rule 11(b)(1) Errors. Counsel next turns to Fish er’s plea hearing and the demands of Federal Rule of Criminal Procedure 11(b)(1). Because Fish er did not object at his change-of-plea hearing to any Rule 11(b) deficiency, we review for plain error any challenge on appeal. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005). We reverse under plain-error re view only if a defendant dem onstrates (1) an error (2) that was plain, (3) that af fects the defendant’s “substan tial rights” (i.e. prejudice), and (4) that “seriously affect [s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 725, 736 (1993) (alteration in original) (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936)). We agree with Fisher’s counsel that Fisher cannot show plain error because he was not prejudiced under the third pron g of plain-error review. Under Rule 11(b)(1), a district court must place a defendant under oath and inform him of a litany of rights and procedur es. Relevant here, a court must inform a8 defendant, first, of the right to “compel th e attendance of witne sses” at trial and, second, of “the court’s obligation to calcu late the applicable sentencing-guideline range and to consider that range, po ssible departures under the Sentencing Guidelines, and other sentencing f actors under 18 U.S.C. § 3553(a).” Fed. R. Crim. P. 11(b)(1)(E), (M). Afte r independently reviewing the record, we agree with counsel that the district court failed to comp ly with these two requirements. But Fisher was not prejudiced by this failure and, thus, is unable to satisfy the requirements of plain-error review. We have stated that a distri ct court plainly errs when it fails to comply with the requirements of Rule 11(b)(1). United States v. Carillo , 860 F.3d 1293, 1300–01 (10th Cir. 2017). But any such failure w ill not be prejudicial if the required information was provided through another source. United States v. Ferrel , 603 F.3d 758, 763–64 (10th Cir. 2010) (“[A] defendant who receive s the information omitted by the district court from other sources ge nerally cannot demonstr ate that he would not have pleaded guilty had the c ourt also so informed him.”). Here, the district court faile d to inform Fisher that he had a right to compel witnesses. But Fisher knew ab out this right from his petiti on to enter a plea of guilty, which he reviewed and signed. The petition st ated that he knew he had “the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in [his] favor.” R. vol. I at 40. Thus, it would be frivolous for Fisher to pursue this claim.9 Likewise, the district cour t did not inform Fisher th at it must consider the § 3553(a) factors at sentencing, as require d by Rule 11(b). But, as before, the plea petition provided this information to Fisher , stating that the sentencing court would exercise its “sentencing authority pursuan t to 18 U.S.C. § 3553.” R. vol. I at 43. Accordingly, we agree with counsel that any claim based on shortcomings in the plea-advisement process under Rule 11(b)(1) would lack merit. In response to counsel’s first Anders brief, Fisher argues th at the district court erred by not informing him of the guideline enhancements that might apply in his case. Specifically, Fisher point s to the two-level enhancem ent for possess ing a stolen firearm and the four-level enhancement for using a fi rearm in connection with another felony offense. Fisher claims that if he had know n that the court would apply these enhancements, he would not have pleaded guilty. Thou gh Fisher is correct that the court did not mention these enhancements at the change-of-plea hearing, Fisher is wrong that the court needed to do so. At Fisher’s change-of-plea hearing, th e district court advised him that in formulating a sentence, the court would look to and consider the applicable advisory sentencing guidelines range. In response, Fish er stated that he understood and that his attorney had explained to hi m the role the guidelines w ould play at sentencing. The court went on to caution Fisher that no one could promise Fisher what type of10 sentence he would face until the day of sentencing. 2 See United States v. Cordova , 350 F. App’x 285, 289 (10th Cir. 2009) (u npublished) (“[T]he court’s failure to inform [the defendant] of the maximum applicable guide line range prior to accepting his guilty plea was not error.”). The cour t was not obliged to forecast Fisher’s ultimate guidelines calculati on and advisory sentencing ra nge and committed no error by not doing so. C. Fisher Was Not Prejudiced by Any Failure to Info rm Him of the Elements of the Charged Offense. On July 29, 2019, counsel filed a supplemental Anders brief addressing Rehaif and whether this post-sentencing-hearing decision affords Fisher any ability to challenge his guilty plea. We agr ee with Fisher’s counsel that Rehaif does not undermine Fisher’s conviction. At the time of Fisher’s sentencing, the government needed to prove three elements to secure his conviction under 18 U.S.C. § 922(g)(1): (1) that he had been previously convicted of a felony; (2) that he thereafter knowingly possessed a firearm; 3 and (3) that the possession was in or affecting intersta te commerce. In Rehaif , the Supreme Court requir ed that the government mu st also prove that the

2 Federal Rule of Criminal Procedure 11 does require a court to inform the defendant of “any maximum possible pena lty . . . [and] any mandatory minimum penalty.” Fed. R. Crim P. 11(b)(1)(H)–(I). The district court satisfie d this obligation.

3 In United States v. Little , 829 F.3d 1177, 1182 (10th Cir. 2016), we held that “constructive possession exists when a pe rson not in actual possession knowingly has the power and intent at a given time to ex ercise dominion or control over an object.”11 defendant “knew he had the re levant status” (here, that Fisher knew he was a felon) when he possessed the firearm. Rehaif , 139 S. Ct. at 2194. Because Fisher did not anticipate Rehaif or object on its grounds, we review any claimed error under that case for plai n error. Here, we ag ree with Fisher’s counsel that the factual basis establis hed for Fisher’s guilty plea established Rehaif ’s additional element. As counsel notes, Fisher agreed with the di strict court when it said to him, “I understand that you’re adm itting that in October of 2015, here in Kansas, . . . you pulled from your pocket a Smith & Wesson .40 caliber semiautomatic handgun, which means that you ha d in your possession this handgun, even though you were not authorized to do that.” R. vol. III at 14. In addition, under the prejudice prong of plain-error review, a defendant must demonstrate that “the record as a whole fails to provide a sufficient factual basis to support the guilty plea.” Carillo , 860 F.3d at 1301. “In asse ssing factual sufficiency under the plain error standard, this cour t may look beyond those facts admitted by [the defendant] during the plea colloquy and scan the entire record for facts supporting his conviction.” Id. at 1305 (citing United States v. Vonn , 535 U.S. 55, 74 (2002)). The words of Fisher’s counsel at his original sentencing hearing show the particular difficulties Fisher would face in claiming igno rance of his felon status: From the age of 18 until now at age 66, Alfonzo Fisher has spent over 30 years of his life in prison. Examining the cases that comp rise his criminal history, he has been convicted of f our categories of crimes. . . . Fisher has: 11 traffic cases, 4 drug cases, 9 forgery cases and 17 property crime cases (12 thefts, 4 burgla ries, and 1 robbery).12 After serving about two years for hi s first felony at age 18 for robbery, Mr. Fisher had eleven cases in his twenties. The convictions from his twenties resulted in 14 more years of pr ison. Released in his thirties, Mr. Fisher was convicted of two more cases for another four years of incarceration. In his fortie s, Mr. Fisher served anot her five years for three more cases. Moreover, in his fifties, he served another five years on eight more cases. Now in his sixties, Mr. Fisher has served another three years on three cases. R. vol. I at 51–52. The PSR lists multiple felony convictions, including the 1989 felony conviction mentioned at Fisher’s se ntencing hearing. Everything considered, we conclude that Fisher has no merito rious argument that his factual basis insufficiently established that he knew of his felon status when he possessed the charged firearm. II. Fisher’s Sentence As mentioned, the district court vari ed upward 21 months to reach a sentence of 84 months of imprisonment. In his Anders brief, Fisher’s counsel informs us that he sees no nonfrivolous ground to challenge the district court’ s guideline calculation or its later above-advisory-range sentence . Having examined the district court’s stated reasons for the sent ence and its attention and adherence to the sentencing factors listed at 18 U.S. C. § 3553(a), we agree. We review the reasonableness of sent ences for an abuse of discretion. United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1214 (10th Cir. 2008). Reasonableness includes both a procedural and substantive component. Id. “The procedural component concerns how the district cour t calculated and explained the sentence, whereas the substantive com ponent concerns whether the length of the sentence is13 reasonable in light of the statutor y factors under 18 U.S.C. § 3553(a).” United States v. Adams , 751 F.3d 1175, 1181 ( 10th Cir. 2014) (citing Alapizco-Valenzuela , 546 F.3d at 1214–15). A. The Sentence Was Proce durally Reasonable. In his Anders brief, counsel guides us to the two objections Fisher made at the sentencing hearing. Counsel concludes that pursuing either of th ese preserved issues on appeal would be frivolous. We agree. When reviewing application of the guide lines, “we review legal questions de novo and factual findings for cl ear error, giving due deferen ce to the district court’s application of the guide lines to the facts.” United States v. Halliday , 665 F.3d 1219, 1222–23 (10th Cir. 2011) (quoting United States v. Mollner , 643 F.3d 713, 714 (10th Cir. 2011)). “To constitute clear error, we must be convinced that the sentencing court’s finding is simply not plausible or pe rmissible in light of the entire record on appeal, remembering that we are not free to substitute our judgment for that of the district judge.” United States v. McClatchey , 316 F.3d 1122, 1128 (10th Cir. 2003) (quoting United States v. Torres , 53 F.3d 1129, 1144 ( 10th Cir. 1995)). Here, the district court did not err, let alone commit clear error, by finding by a preponderance that Fisher’s offense involve d a stolen firearm. The commentary to § 2K2.1(b)(4) states that the enhancem ent applies “regardl ess of whether the defendant knew or had reas on to believe that the fi rearm was stolen.” U.S. Sentencing Guidelines Manual § 2K2.1(b) (4) cmt. n.8(B) (U.S. Sentencing Comm’n14 2014). On the facts earlier given, the dist rict court properly fo und that the offense involved a stolen firearm. Nor did the district court err, let alone commit clear error, by finding by a preponderance that Fisher had “used or possessed any firearm or ammunition in connection with another felony offense. ” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm’n 20 14). The application note tells us that this subsection applies “in a case in whic h a defendant who, dur ing the course of a burglary, finds and takes a fir earm, even if the defendant did not engage in any other conduct with that firearm during the c ourse of the burglary.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) cmt. n.14(B) (U.S. Sentencing Comm’n 2014). Here, the district court pr operly found by a prepondera nce that Fisher took the firearm during the burglary of Scott’s au tomobile. Accordingly, we identify no nonfrivolous issues Fisher c ould raise concerning the distri ct court’s calculation of his guideline range. Furthermore, the district court prope rly relied on the 18 U.S.C. § 3553(a) sentencing factors and expl ained its reasoning for appl ying them to support a 21- month upward variance. Specifically, the di strict court justifie d the upward variance by noting the need to promote respect fo r the law and to protect the public from further crimes by Fisher. 4 See 18 U.S.C. § 3553(a)(2)(A), (C). The district court tied

4 During the sentencing hearing, the dist rict court veered between justifying the above-guideline sentence as a variance under the § 3553(a) factors and as a departure under U.S. Senten cing Guidelines Manual § 4A1. 3. Near the end of the sentencing hearing, the probati on officer approached the cour t to seek clarification on15 these concerns to Fisher’s remarkable almost-50-year cr iminal history of primarily property-related crimes. In summary, the di strict court’s procedure was reasonable— it fully supported and e xplained the bases for the guidelin e calculation and variance. B. The Sentence Was Substa ntively Reasonable. Fisher’s counsel also claims it would be frivolous to challenge the substantive reasonableness of Fisher’s 84- month sentence. We agree. We review the substantive reasonableness of a criminal sent ence for abuse of discretion and “will reverse only if the sent ence imposed was ‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” United States v. DeRusse , 859 F.3d 1232, 1236 (10th Cir. 2017) (quoting United States v. Gantt , 679 F.3d 1240, 1249 (10th Cir. 2012)). 5 In reviewing the substantive reas onableness of a sentence, we grant deference “not only to a distri ct court’s factual findings but also to its determinations of the weight to be afforded to such findings.” United States v. Gieswein , 887 F.3d 1054, 1064 (10t h Cir.) (quoting United States v. Smart , 518 F.3d 800, 808 (10th Cir. 2008)), cert denied , 139 S. Ct. 279 (2018), and reh’g denied , 139 S. Ct. 1247 (2019). This is because “[t]he judge sees a nd hears the evidence, makes credibility

the basis for the above-guidelin e sentence, and the district court stated that he was relying on both bases. Though the 84-month sentence might well be justified as a departure under U.S. Sentencing Guidelin es Manual § 4A1.3 too, we do not reach that issue, because we affirm on the upward-varian ce ground (§ 3553(a) factors).

5 Fisher’s counsel states that it would be frivolous to challenge any of Fisher’s conditions of supervised release. Impor tantly, no objection was made to these conditions in the district cour t. Thus, any potential review would be for plain error. After a review of these conditions, we se e no error, let alone plain error, with Fisher’s conditions of supervised release.16 determinations, has full knowledge of the facts and gains insights not conveyed by the record.” United States v. Barnes , 890 F.3d 910, 915–16 ( 10th Cir. 2018) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). Under this deferential st andard, it would be frivolous to claim on appeal that Fisher’s sentence was substantively unreas onable. As noted, Fisher’s advisory guidelines sentencing range wa s 51 to 63 months’ imprisonm ent. The district court appropriately weighed the § 3553(a) fact ors and, based on Fi sher’s substantial criminal history, departed upward to se ntence Fisher to 84 months’ imprisonment. We permit a court to “make its own reasonabl e application of the § 3553(a) factors,” Kimbrough v. United States , 552 U.S. 85, 113 (2007), and, thus, identify no error in the court’s decision to increase Fisher’s sentence based on his previous criminal convictions. Accordingly, we agree with defe nse counsel that it would be frivolous to argue that Fisher’s sentence was substantively unreasonable. C. The District Court’s Error in Calculating Fisher’s CriminalHistory Points Did Not Prejudice Him. Counsel identifies an error in Fisher’s criminal-histo ry calculation. We agree with counsel that the court erred, but we al so agree under the plai n-error standard that the error did not prejudice Fisher. As counsel notes in his Anders brief, the district court assigned Fisher a criminal-history point for his six-mont h sentence resulting from a March 2004 petittheft conviction. Under the guidelines, a se ntence of less than a year scores a criminal-history point only if it is “im posed within ten years of the defendant’s17 commencement of the inst ant offense.” U.S. Sent encing Guidelines Manual § 4A1.2(e)(2) (U.S. Sentencing Comm’n 2013) . Because Fisher co mmitted the instant offense in October 2015, Fish er’s petit-theft conviction should not have garnered a criminal-history point. But as counsel al so points out, Fisher suffered no prejudice from this error. After all, Fisher had 34 countable crim inal-history points. Subtracting one point from this total st ill leaves Fisher’s point total well over the 13 points needed to obtain criminal history category VI, the highest criminal history category. See United States v. Hurlich , 348 F.3d 1219, 1221 (10th Ci r. 2003) (“Category VI is the highest level of criminal history on th e sentencing table . . . .”). Thus, Fisher maintains the same crimin al-history category and a dvisory sentencing range. Accordingly, we agree with counsel that any challenge on appeal to the error would be frivolous. CONCLUSION Having found no nonfrivolous grounds for challenging Fisher’s conviction or sentence, we dismiss Fisher’s appeal and grant appellate counsel’s motion to withdraw.

Entered for the Court
Gregory A. Phillips Circuit Judge