FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 29, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 10-6255
    v.                                         (D.C. No. 5:10-CR-00011-D-3)
                                                       (W.D. Okla.)
    CARRI O. ADAMS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.



         Defendant Carri O. Adams was tried and convicted, with co-defendant

Wallace Laverne Lawrence III, on seven counts of wire fraud/aiding and abetting,

18 U.S.C. § 1343 and § 2, for her role in a scheme using internet ads to defraud

persons seeking help in paying bills. The district court imposed a sentence of

eighteen months on each count, to run concurrently, followed by two years of


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
supervised release on each count, also to run concurrently, and ordered Adams to

pay restitution of $7406. After timely initiation of this appeal, counsel moved to

withdraw and filed an Anders brief explaining why he believes there to be no

non-frivolous grounds for appeal. See Anders v. California, 

(1967);

10th Cir. R. 46.4(B)(1). We grant the motion and dismiss the appeal.

      Under Anders, counsel must first “conscientiously examine[] a case and

determine[] that any appeal would be wholly frivolous,” and then

      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 [c]ourt
      must then conduct a full examination of the record to determine
      whether the 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 dismiss the appeal.

United States v. Calderon, 

, 930 (10th Cir. 2005) (citations omitted).

The Anders brief submitted in this case discusses three issues initially identified

in the docketing statement, as well as a potential claim of ineffective assistance of

counsel. Adams did not submit any additional arguments on her own behalf.

      The first issue concerns the sufficiency of the evidence supporting Adams’s

conviction. As explained at greater length in our related decision affirming her

co-defendant’s conviction in United States v. Lawrence, No. 10-6257, ample

evidence demonstrated the existence of the fraudulent scheme and Adams’s

participation in it, establishing in particular her direct or aiding and abetting

liability for the internet ads underlying the wire fraud counts. In fact, the

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evidence indicated that it was her computer experience that played an important

role in the incorporation of internet ads into the scheme. We agree with counsel

it would be frivolous to argue that “taking the evidence—both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom–in

the light most favorable to the government, [no] reasonable jury could find

[Adams] guilty beyond a reasonable doubt.” United States v. Keck, 

,

793 (10th Cir. 2011) (internal quotation marks omitted).

      The second issue concerns the district court’s denial of Adams’s motion to

suppress evidence found during a warrant-based search of her vehicle following

the arrest of her co-defendant, who was driving it at the time. The motion to

suppress was based on the fact that the warrant mis-identified the model year and

did not include the vehicle identification number (VIN). The district court noted

that a factual error will not invalidate a warrant if it “otherwise describes the

premises with sufficient particularity so that the police can ascertain and identify

the place to be searched,” United States v. Lora-Solano, 

, 1293

(10th Cir. 2003), and held that the warrant, which correctly identified not only the

color, make, and model but license tag as well, adequately described the vehicle

to be searched. R. Vol. 1 at 130 (also noting lack of any precedent for requiring a

VIN to validate warrant for search of vehicle). The court added that suppression

would not, in any event, be appropriate in light of the good faith of the officers

securing and executing the warrant. 

(citing United States v. Leon,

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(1984)). Once again, we agree with counsel it would be frivolous to

challenge this ruling on appeal.

      The third issue concerns the asserted “incredibility” of co-defendant Sandra

Acuna, who pled guilty and testified for the government at trial. As counsel

notes, witness credibility is generally not a proper issue for appeal. We do not

encroach upon the jury’s authority in this area unless the testimony in question “is

inherently incredible–that is, only if the events recounted by the witness were

impossible under the laws of nature or the witness physically could not have

possibly observed the events at issue.” United States v. Cardinas Garcia,

, 794 (10th Cir.) (internal quotation marks omitted), cert. denied,

(2010). Nothing of the sort is evident here. 1

      Finally, counsel notes that Adams now believes her trial counsel was

constitutionally ineffective in various respects. As this court clarified some time

ago, however, ineffective assistance claims are reserved for collateral review in

all but exceptional circumstances; on direct appeal, they are “presumptively

dismissible, and virtually all will be dismissed.” United States v. Galloway,

, 1240 (10th Cir. 1995) (en banc). Here, it would be especially


1
       Adams objected to admission of Acuna’s plea agreement, in which Acuna
agreed to provide truthful testimony, as an improper vouching for veracity. But,
as the district court noted, we have held that “it is perfectly permissible for a
prosecutor to introduce a witness’s plea agreement on direct examination, even if
it includes a truthfulness provision.” United States v. Harlow, 

,
1262 (10th Cir. 2006).

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inappropriate to pursue such matters, which were not raised, developed, or ruled

on in the proceedings below. See United States v. Flood, 

, 1260-61

(10th Cir. 2011) (noting ineffective assistance claims have been considered on

direct appeal “only where the issue was raised before and ruled upon by the

district court and a sufficient factual record exists”).

      We have also conducted a thorough independent review of the record and

have not uncovered any non-frivolous issues relating to Adams’s conviction or

sentence. As to the latter, we see no procedural error in the calculation of the

applicable sentencing guideline range, nor any basis upon which she could rebut

the presumption of substantive reasonableness attached to her within-guidelines

sentence, see generally United States v. Reyes-Alfonso, 

, 1145-46

(10th Cir. 2011) (discussing presumption of reasonableness), petition for cert.

filed (U.S. Oct. 25, 2011) (No. 11-7115).

      Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is

DISMISSED.


                                                      Entered for the Court


                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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