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    United States v. Cassius, 10th Cir. (2009)

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    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Timothy Cassius's appeal of his conviction and sentence. The court affirmed Cassius's conviction and sentence. It found that Cassius was correctly designated a career offender based on his criminal history. It also rejected Cassius's arguments that he did not use or carry a firearm in furtherance of a drug trafficking offense and that his rights were violated. The court granted his counsel's request to withdraw from the case and dismissed the appeal.

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    United States v. Cassius, 10th Cir. (2009)

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    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Timothy Cassius's appeal of his conviction and sentence. The court affirmed Cassius's conviction and sentence. It found that Cassius was correctly designated a career offender based on his criminal history. It also rejected Cassius's arguments that he did not use or carry a firearm in furtherance of a drug trafficking offense and that his rights were violated. The court granted his counsel's request to withdraw from the case and dismissed the appeal.

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    Filed: 2009-08-04 Precedential Status: Non-Precedential Docket: 08-1304

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    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Timothy Cassius's appeal of his conviction and sentence. The court affirmed Cassius's conviction and sentence. It found that Cassius was correctly designated a career offender based on his criminal history. It also rejected Cassius's arguments that he did not use or carry a firearm in furtherance of a drug trafficking offense and that his rights were violated. The court granted his counsel's request to withdraw from the case and dismissed the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    25 views6 pages

    United States v. Cassius, 10th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    The document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding Timothy Cassius's appeal of his conviction and sentence. The court affirmed Cassius's conviction and sentence. It found that Cassius was correctly designated a career offender based on his criminal history. It also rejected Cassius's arguments that he did not use or carry a firearm in furtherance of a drug trafficking offense and that his rights were violated. The court granted his counsel's request to withdraw from the case and dismissed the appeal.

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    of 6

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    August 4, 2009

    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    TIMOTHY G. CASSIUS,
    a/k/a Cash, a/k/a Almighty Dollar,
    a/k/a AD,

    No. 08-1304
    (D.C. No. 1:06-CR-00270-REB-1)
    (D. Colo.)

    Defendant-Appellant.

    ORDER AND JUDGMENT *

    Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judge.

    Defendant-appellant Timothy Cassius was found guilty of various drug


    trafficking offenses, as well as carrying a firearm in relation to a drug trafficking
    offense, being a felon in possession of a firearm, and various witness-tampering
    offenses. The district court sentenced him to 360 months imprisonment followed

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist 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.

    by eight years supervised release and imposed a $100 special assessment fee.
    The sentence reflected Mr. Cassiuss status as a career offender under USSG
    4B1.1. Counsel on appeal has filed a brief pursuant to Anders v. California,
    386 U.S. 738 (1967), and Mr. Cassius has submitted a pro se filing arguing
    (1) that his sentence as a career offender under 4B1.1 was erroneous; (2) that he
    never used or carried a weapon in furtherance of any offense; (3) that his rights
    under the double jeopardy clause were violated; and (4) that he received
    ineffective assistance of counsel on appeal. Our jurisdiction arises under
    28 U.S.C. 1291 and 18 U.S.C. 3742(a), and we GRANT counsels request to
    withdraw and DISMISS this appeal.
    Turning first to the arguments in Mr. Cassiuss pro se brief, he argues that
    the government relied on his prior convictions for attempted escape and attempted
    sale of a controlled substance to establish his status as a career offender.
    According to him, that is error because neither of those offenses are crimes of
    violence or controlled substance offenses, as required by 4B1.1. The
    government, however, did not sentence Mr. Cassius. That was done by the
    district court which rightly relied on two prior felony convictions involving the
    sale of controlled substances or imitation controlled substances detailed in the
    presentence investigative report. See R. Vol. IX at 39 (August 5, 2008,
    sentencing hearing transcript); Vol. XIII at 60, 73 (presentence report).

    -2-

    Mr. Cassius next contends that he was not guilty of using or carrying a
    firearm under 18 U.S.C. 924(c)(1) because the firearm was found in a briefcase
    in a car. Aplt. Opposition to Anders Br. at 3. Mr. Cassius neglects to mention,
    however, that the gun belonged to him, that it was found in a briefcase identified
    by a witness as looking like one belonging to him, that the briefcase was located
    in the car he was driving when he was arrested, and that crack cocaine was also
    found in the briefcase. Muscarello v. United States, 524 U.S. 125, 126-27 (1998),
    defines carrying for purposes of 924(c) broadly enough to encompass
    Mr. Cassiuss conduct in this case.
    Mr. Cassius makes no argument based on the double jeopardy clause, and
    our full examination of all the proceedings, see Anders, 386 U.S. at 744, reveals
    none. And finally, [i]neffective assistance of counsel claims should be brought
    in collateral proceedings, not on direct appeal. Such claims brought on direct
    appeal are presumptively dismissible, and virtually all will be dismissed.
    United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).
    To comply with Anders, counsel was required to submit a brief to the
    client and the appellate court indicating any potential appealable issues based on
    the record. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
    Counsel has done so and identifies eight potential issues, none of which we find
    meritorious.

    -3-

    The first group of issues identified by counsel concern Mr. Cassiuss


    co-defendant, Latisha Thomas. The district court did not err in upholding
    Ms. Thomass Fifth Amendment privilege against self-incrimination. It is clear
    that Ms. Thomas faced some authentic danger of self-incrimination had she
    testified, see United States v. Rivas-Macias, 537 F.3d 1271, 1277 (10th Cir. 2008)
    (quotation omitted), cert. denied, 129 S. Ct. 1371 (2009), and she did not waive
    her privilege by entering into a plea agreement, see id. at 1280 (squarely
    reject[ing] the proposition that an individual waives the Fifth Amendment
    privilege by pleading guilty to a crime). Further, the district court had no
    inherent authority to grant her immunity in order to force her testimony. United
    States v. Serrano, 406 F.3d 1208, 1217 (10th Cir. 2005).
    Turning to the conduct of the trial itself, our full examination of the
    proceedings reveals that a reasonable jury could find guilt beyond a reasonable
    doubt on the witness-tampering charges, given the direct and circumstantial
    evidence and reasonable inferences, taken in a light most favorable to the
    government. See United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004).
    Mr. Joie Sams, the target of the tampering, testified that Mr. Cassius had asked
    him to swear that he, Sams, had never seen Mr. Cassius use drugs and that
    Mr. Cassius made his money from an escort service, neither of which were true.
    Taped telephone conversations of co-conspirators regarding the witness
    tampering were properly admitted because they were made during the course and
    -4-

    in furtherance of the conspiracy, and thus were not hearsay, Fed. R. Evid.
    801(d)(2)(e), and because Ms. Thomass plea agreement and Mr. Samss
    testimony allowed the government to connect the conversations with the facts
    developed at trial.
    The district court did not violate Mr. Cassiuss equal protection rights
    by allowing the government to exercise a preemptory challenge against an
    African-American venire member. We agree with the district court that the
    governments racially neutral explanation for the challenge was credible and
    cogent and that Mr. Cassius had not shown pretext. R. Vol. XII at 191.
    Finally, counsel identifies the reasonableness of the sentence as a possible
    issue. Appellate courts review sentencing decisions first for procedural
    reasonableness, and then for substantive reasonableness. United States v.
    Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008), cert. denied, 129 S. Ct.
    2172 (2009). We review sentences for reasonableness under a deferential abuse
    of discretion standard. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.),
    cert. denied, 129 S. Ct. 428 (2008). Mr. Cassiuss sentence was procedurally
    reasonable. There is no indication that the district court incorrectly calculated the
    Guidelines sentence or that it considered the Guidelines to be mandatory. See id.;
    see generally R. Vol. IX (transcript of Aug. 5, 2008, sentencing hearing).
    Further, the court clearly applied the factors in 18 U.S.C. 3553(a), did not rely
    on clearly erroneous facts, and adequately explained the sentence. See Haley,
    -5-

    529 F.3d at 1311. Because the sentence imposed is within the correctly
    calculated Guidelines range, it is presumed reasonable on appeal. Id. The
    sentence is also substantively reasonable given the totality of the circumstances
    in light of the 18 U.S.C. 3553(a) factors. See id.
    We GRANT counsels request to withdraw and DISMISS this appeal.

    Entered for the Court

    Mary Beck Briscoe


    Circuit Judge

    -6-

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