United States v. Scott ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
February 25, 2015
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6106
(D.C. No. 5:04-CR-00075-F-1)
KELVIN B. SCOTT, JR., (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
After examining defense counsel’s Anders brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This
case is therefore ordered submitted without oral argument.
Appellant Kelvin Scott was released from a 120-month term of imprisonment in
January 2013 on a three-year period of supervised release. In April 2014, Appellant was
arrested for several violations of his supervised release. At a hearing held on April 29,
2014, he admitted to committing these violations and asked the district court to send him
*
This order and judgment is not binding precedent, except under the doctrines of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.
to inpatient residential substance abuse treatment instead of prison. However, the district
court concluded that a term of imprisonment would be appropriate. The court revoked his
supervised release and sentenced him to nine months’ imprisonment, followed by a
twenty-seven-month period of supervised release. The court imposed the same conditions
that applied to Appellant’s first term of supervised release, plus an additional condition
requiring Appellant to submit to “a search of his person, property, or any automobile
under his control to be conducted in a reasonable manner and at a reasonable time, for the
purpose of detecting illegal drugs at the direction of the probation officer upon reasonable
suspicion.” (R. at 43.)
On appeal, Appellant’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), explaining why counsel believes there to be no meritorious grounds for
appeal. Appellant was provided with an opportunity to respond, but he declined to do so.
The government also declined to file an answer brief.
In her Anders brief, defense counsel suggested Appellant could potentially appeal
the district court’s decision to impose a nine-month period of incarceration rather than
ordering Appellant to undergo inpatient treatment. However, any possible challenges to
the district court’s imposition of the nine-month sentence have been mooted by
Appellant’s recent release from prison. See United States v. Meyers, 200 F.3d 715, 722
(10th Cir. 2000). We accordingly lack jurisdiction to consider any such arguments. See
id. at 72. Defense counsel did raise one potential argument that might withstand a
mootness challenge—an argument that the district court erred in imposing the additional
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special condition of supervised release that will require Appellant to submit to a search if
the probation officer believes there is reasonable suspicion warranting a search.
However, even if this argument is not moot, we see no error in the imposition of this
condition, much less plain error. We therefore GRANT counsel’s motion to withdraw
and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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