United States v. Fisher
| Decision Date | 04 December 2019 |
| Docket Number | No. 18-3234,18-3234 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFONZO J. FISHER, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Kan.)
ORDER AND JUDGMENT*Before LUCERO, PHILLIPS, and EID, Circuit Judges.
Alfonzo J. Fisher pleaded guilty to being 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 counsel, an assistant federal public defender, filed two Anders briefs advising the court that he has found no nonfrivolous bases for appeal and seeking leave to withdraw. See Anders v. California, 386 U.S. 738 (1967). Fisher has filed responses. After reviewing the record and appellate filings, we grant counsel's motion to withdraw and dismiss the appeal.
On October 5, 2015, a front-desk worker at a recreation center in Wichita, Kansas, saw a man—later identified as Fisher—entering a truck that the worker knew belonged to Kody Scott. At the time, Scott was lifting weights at the center. The worker told Scott about the intruder. Scott 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 him and pleaded, "please just let me go." R. vol. III at 44. Instead, Scott and several bystanders "blocked [Fisher] in . . . and waited until the officers arrived." Id. at 47.
When police arrived, they arrested Fisher and searched his backpack, finding Scott's lunch. Fisher denied having been in Scott's truck but admitted having possessed the firearm. Fisher claimed that he had found and taken the firearm from a planter outside the recreation center.
In January 2016, a federal grand jury returned 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, Fisher claimed that he had recently screened positive for dementia, 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,language, and visuospatial skills. Dr. Blanchard found 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 Fisher's competency was not in question and finding no circumstances warranting a plea of nolo contendere. The court agreed with the government because Fisher's case did 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 him of the maximum penalties he faced and of the rights he would waive by pleading guilty. Fisher acknowledged that he understood. In obtaining a factual basis for Fisher's plea, the court asked Fisher if "in October of 2015, here in Kansas . . . you pulled from your pocket a Smith & Wesson .40 caliber semi-automatic handgun, which 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. Fisher replied that he had. Satisfied with this factual basis, the court accepted Fisher'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 Manual§ 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 firearm). The officer recommended reducing this adjusted offense level by three levels for Fisher's acceptance of responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1(b) (U.S. Sentencing Comm'n 2013). Before sentencing, Fisher filed written objections to the two enhancements—denying having burglarized the automobile and taken the firearm from inside it.
The district court rejected these objections, finding by a preponderance that Fisher had possessed a stolen firearm in connection with the automobile burglary. After giving Fisher credit for acceptance of responsibility, the court calculated Fisher's total offense level at 17 and his criminal-history category at VI. This left Fisher with an advisory guideline range of 51 to 63 months' imprisonment. The court varied upward, sentencing Fisher to 84 months of imprisonment. Fisher timely appealed.
Under Anders v. California, 386 U.S. 738 (1967), appellate counsel may "request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous." United States v. Calderon,428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). We have detailed the process 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 arguments to the court. The Court must then conduct a full examination of the record to determine whether defendant's claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant 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 Fisher 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 Fisher's conviction or sentence. In a supplemental Anders brief, addressing the intervening decision in United States v. Rehaif, 139 S. Ct. 2191, 2200 (2019), counsel 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 responses, complaining that the district court had not told him at his change-of-plea hearing that it would apply the two specific-offense characteristics in calculating 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 nonfrivolous ground for appeal.
Before pleading guilty, Fisher filed a motion asking permission to enter a nolo contendere plea. In support, Fisher clarified that he did not deny the factual allegations but relied on his claimed cognitive deterioration, which he said kept him from laying a factual basis for a guilty plea.
The district court denied Fisher's motion to plead nolo contendere. In doing so, the court considered and carefully weighed 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 made this ruling.
Under Federal Rule of Criminal Procedure 11(a), a defendant may plead nolo contendere with "the court's consent." We have ruled that "the acceptance of such plea is a matter solely within the discretion of the [district] court." United States v.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) (). Here, the district court acted within its discretion in declining to allow Fisher to plead nolo contendere, and we agree with his appellate counsel that any argument to the contrary would be frivolous.
Counsel next turns to Fisher's plea hearing and the demands of Federal Rule of Criminal Procedure 11(b)(1). Because Fisher 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 review only if a defendant demonstrates (1) an error (2) that was plain, (3) that affects the defendant's "substantial 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...
To continue reading
Request your trial