United States v. Richardson ( 2023 )

Appellate Case: 22-3114 Document: 010110810077 Date Filed: 02/08/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3114
(D.C. No. 6:17-CR-10103-EFM-1)
TIMOTHY A. RICHARDSON, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Timothy A. Richardson filed a timely, counseled notice of appeal from the
final judgment of the United States District Court for the District of Kansas. His
counsel has since moved to withdraw from the case under Anders v. California, 386
U.S. 738 (1967), asserting there are no non-frivolous grounds for appeal. Upon
independent review of the record, we conclude there are no grounds for appeal that
* After examining the briefs and 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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
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are not “wholly frivolous.” Accordingly, we grant counsel’s motion to withdraw, and
we dismiss the appeal.
I. BACKGROUND
In 2018, Mr. Richardson pleaded guilty to one count of counterfeiting
currency, in violation of 18 U.S.C. § 471. He was sentenced to thirty-three months of
imprisonment, followed by three years of supervised release. Upon his release from
prison in January 2020, Mr. Richardson began his term of supervised release.
In April 2022, the probation office filed a report detailing Mr. Richardson’s
alleged violations of multiple conditions of his supervised release: (1) unlawful
possession of a controlled substance, (2) unlawful use of a controlled substance,
(3) failure to report law enforcement contact to the probation office, (4) failure to
attend mental health treatment appointments and to take prescribed mental health
medications, (5) failure to report to the probation office as instructed, (6) failure to
notify the probation office prior to a change in residence, and (7) commission of
another crime.
At Mr. Richardson’s initial appearance hearing, in April 2022, the court
informed Mr. Richardson of the allegations in the violation report, advised
Mr. Richardson of his right to remain silent and his right to counsel, appointed
counsel to represent Mr. Richardson, and ordered Mr. Richardson be kept in
temporary custody pending a detention hearing. At the ensuing hearing, the district
court ordered that Mr. Richardson be detained until his final revocation hearing
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because he posed a danger to the community and a flight risk. The court also advised
Mr. Richardson of his right to a preliminary hearing to assess whether the
government could demonstrate probable cause to believe the allegations in the
violation report. Mr. Richardson, represented by counsel, waived his preliminary
hearing.
In June 2022, the district court conducted a hearing on the revocation of
Mr. Richardson’s supervised release. Mr. Richardson admitted to six of the seven
alleged violations of his conditions of supervised release. The United States declined
to proceed with any evidence regarding the unadmitted-to violation—
Mr. Richardson’s alleged failure to report law enforcement contact to the probation
office. The district court accepted Mr. Richardson’s admissions, and no other
evidence was entered by either party.
The district court determined Mr. Richardson’s highest violation was a grade B
violation and that his criminal history at the time of original sentencing was within
category VI. At the revocation hearing, Mr. Richardson argued he should be released
to an inpatient substance abuse treatment center rather than face revocation of his
supervised release and a new term of incarceration. In his statement to the court,
Mr. Richardson admitted to the violations, asserted he had been trying to do better
until his relapsed drug use, and requested referral to inpatient substance abuse
treatment. The government argued for revocation of Mr. Richardson’s supervised
release and imposition of a term of 21-months’ imprisonment. The government
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argued a continued period of supervised release would be ineffective because
Mr. Richardson had “clearly shown that he [was] not amenable to supervision.” ROA
Vol. III at 96.
The district court first identified the advisory Guidelines term as 21- to 24-
months’ imprisonment and up to an additional three-years supervised release. In
selecting an appropriate sentence informed by that advisory term, the court
considered the applicable U.S. Sentencing Commission Guidelines, Mr. Richardson’s
history with mental health and substance abuse problems, and his prior difficulty
adhering to recommended mental health treatment while on supervised release. The
court reasoned that Mr. Richardson’s “underlying concerns are mental health, not
substance abuse” and expressed its concern that “we’re not sure what to do more than
we’ve done with respect to this to make it work.” Id. at 107.
Ultimately, the court found Mr. Richardson had violated his conditions of
release and sentenced him to the maximum Guidelines sentence of 24-months’
imprisonment. The court also recommended that the Bureau of Prisons place
Mr. Richardson in a medical facility capable of treating his mental health issues. The
district court, however, declined to impose another term of supervised release
following Mr. Richardson’s release. Mr. Richardson objected to the revocation of his
supervised release and the imposition of a term of imprisonment rather than
admission to substance abuse treatment.
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Mr. Richardson’s counsel filed a timely notice of appeal of the district court’s
judgment. Mr. Richardson’s counsel now moves to withdraw because there are no
non-frivolous grounds for appeal.
II. DISCUSSION
Under Anders, 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). “[C]ounsel must submit a brief to the client and the
appellate court indicating any potential appealable issues based on the record.” Id.Then, in his own submission to the court, the client may also raise any points he
chooses. Anders, 386 U.S. at 744. We must then independently examine the record to
determine whether appeal would be “wholly frivolous.” Id. If we conclude there are
no non-frivolous grounds for appeal, we may grant counsel’s request to withdraw and
dismiss the appeal. Id.Counsel’s Anders brief identifies two potential bases for appeal: that
revocation of Mr. Richardson’s supervised release was an abuse of discretion, and
that Mr. Richardson’s revocation sentence was procedurally and substantively
unreasonable. In his pro se submission to us, Mr. Richardson raises concerns that
(1) “the sentence was unreasonably unfair based on the harsh sentence” relative to
the timing of his violations and previous adherence to the conditions of release; and
(2) the decision to sentence him “to prison instead of treatment” was unreasonable
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given his need for mental health treatment to address the underlying reason for his
drug use.1 Appellant’s pro se Br. at 1–2. We construe these concerns, respectively, as
objections to the substantive reasonableness of Mr. Richardson’s revocation sentence
and to the decision to revoke Mr. Richardson’s supervised release. We consider each
of these questions in turn.
A. Revocation of Supervised Release
We “review[] a district court’s decision to revoke a term of supervised release
for abuse of discretion.” United States v. Metzener, 584 F.3d 928, 932 (10th Cir.
2009). A district court exceeds its discretion “when it renders a judgment that is
arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Haley,
529 F.3d 1308, 1311 (10th Cir. 2008) (quotation marks omitted).
1
Mr. Richardson raises two additional concerns regarding his sentence: (1) the
Coronavirus, which was “totally disregarded in [his] case[,]” and (2) “missing out on
the[] lives” of his two young children. Appellant’s pro se Br. at 2–3. This appeal is
not the proper forum to consider Mr. Richardson’s concerns regarding the
Coronavirus, which we construe as a possible claim for sentence reduction or
compassionate release under 18 U.S.C § 3582(c)(1)(A).
Additionally, Mr. Richardson made no argument before the district court that
his family circumstances warranted a downward departure. Because Mr. Richardson
failed to raise this issue before the district court, he may not raise it on appeal other
than through the lens of plain error. See United States v. Calderon, 428 F.3d 928, 932
(10th Cir. 2005). Mr. Richardson does not argue plain error, and this issue is waived.
See United States v. Leffler, 942 F.3d 1192, 1198 (10th Cir. 2019). Even if we
reached the merits, we cannot say the district court plainly erred. Although the
district court may consider family circumstances in fashioning an appropriate
sentence, see United States v. Muñoz-Nava, 524 F.3d 1137, 1148 (10th Cir. 2008),
“family circumstances are not typically a predominating consideration in the
§ 3553(a) analysis.” United States v. Littlejohn-Conner, No. 21-1224, 2022 WL
2359347, at *6 (10th Cir. June 30, 2022) (unpublished).
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The district court may revoke a term of supervised release if it “finds by a
preponderance of the evidence that the defendant violated a condition of supervised
release[.]” 18 U.S.C. § 3583(e)(3). Revocation of supervised release is generally
presumed mandatory when a defendant is found to have possessed a controlled
substance in violation of the conditions of release. Id. § 3583(g)(1). However, this
presumption is subject to exception, and it is within the court’s discretion to consider
enrollment in a substance abuse treatment program where the defendant is found to
have failed a drug test. Id. § 3583(d); United States v. Hammonds, 370 F.3d 1032,
1038 (10th Cir. 2004). Procedurally, a court’s determination of whether to revoke a
term of supervised release is governed by Federal Rule of Criminal Procedure 32.1.
The district court properly adhered to the procedural mandates of Rule 32.1
throughout Mr. Richardson’s revocation proceedings. The court found
Mr. Richardson violated the conditions of his release, relying on Mr. Richardson’s
own admissions. To the extent it was within the district court’s discretion to consider
substance abuse treatment, the court did so and explained its reasoning for rejecting
inpatient treatment as an alternative to imprisonment. On our independent review of
the record, we conclude that any argument the district court abused its discretion by
revoking Mr. Richardson’s supervised release would be wholly frivolous. We now
consider the revocation sentence itself.
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B. Revocation Sentence
This court reviews a district court’s revocation sentence for abuse of
discretion. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.
2008). We will uphold a district court’s revocation sentence if it is both “reasoned
and reasonable.” United States v. Contreras–Martinez, 409 F.3d 1236, 1241 (10th
Cir. 2005) (quotation marks omitted). “[A] ‘reasoned’ sentence is one that is
‘procedurally reasonable’; and a ‘reasonable’ sentence is one that is ‘substantively
reasonable.’” United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). “[W]e
review the district court’s factual findings for clear error and its legal conclusions de
novo.” United States v. Handley, 678 F.3d 1185, 1188 (10th Cir. 2012) (emphasis
omitted).
1. Procedural Reasonableness
Procedural review looks to “whether the sentencing court committed any error
in calculating or explaining the sentence.” Alapizco-Valenzuela, 546 F.3d at 1214.
Such errors may include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
On review of the record, the district court correctly calculated the revocation
sentence range recommended by the Guidelines based on Mr. Richardson’s original
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offense, criminal history, and violation grade. See 18 U.S.C. § 3583(e)(3); United
States Sentencing Commission, Guidelines Manual, §7B1.4(a)–(b), p.s. (Nov. 2021).2
The district court imposed a revocation sentence within the recommended range and
provided a satisfactory explanation to establish the procedural reasonableness of its
sentence. See McBride, 633 F.3d at 1234 (discussing rationale for a court only
needing to “provide a general statement of the reasons for its imposition of the
particular sentence” when imposing a within-guidelines sentence after conviction or
revocation of supervised release) (internal quotation marks omitted). Although the
court considered inpatient substance abuse treatment, it ultimately rejected that
alternative, pointing to Mr. Richardson’s history, the circumstances of his violations,
and his difficulty adhering to a mental health treatment plan while on supervised
release. Nothing in the record suggests the court treated the Guidelines as mandatory
2
Mr. Richardson’s original offense, counterfeiting United States currency, was
a Class C Felony. His criminal history category at the time of sentencing for his
original offense was category VI, and the most serious violation of his conditions of
supervised release was a grade B violation. Based on Mr. Richardson’s criminal
history category and violation grade, the Guidelines advise a revocation sentence of
21- to 27-months. See United States Sentencing Commission, Guidelines Manual,
§7B1.4(a)–(b), p.s. (Nov. 2021). But because Mr. Richardson’s original offense was a
Class C Felony, that range is lowered to a maximum term of 24-months’
imprisonment. See id. §7B1.4(b); 18 U.S.C. § 3583(e)(3).
We note the probation office’s violation report does not identify which edition
of the Guidelines Manual was used in its calculation—the 2016 edition in effect at
the time of Mr. Richardson’s original sentencing, or the 2021 edition in effect at the
time of his revocation hearing. However, because the relevant portion of the
Guidelines has not changed since 2010, whether the probation office and court used
the 2016 or 2021 edition of the Guidelines cannot have prejudiced Mr. Richardson.
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rather than advisory or that the court relied on clearly erroneous findings of fact. To
the contrary, the court’s explanation of its revocation sentence was rooted in the facts
stipulated to by Mr. Richardson. Nothing in our independent review of the record
supports finding a meritorious argument that the district court’s revocation sentence
was not procedurally reasonable.
2. Substantive Reasonableness
Substantive review looks to “whether the length of the sentence is reasonable
given all the circumstances of the case in light of the factors set forth in 18 U.S.C.
§ 3553(a).” Alapizco-Valenzuela, 546 F.3d at 1214. A revocation sentence which
falls within a properly calculated Guidelines range may be presumed reasonable.
McBride, 633 F.3d at 1233.
Based on Mr. Richardson’s original offense, criminal history, and violation
grade, the Guidelines advise a revocation sentence of 21- to 24-months’ incarceration
followed by up to three-years’ supervised release. See supra n.2. The district court’s
24-month revocation sentence falls within the range recommended by the Guidelines
and is therefore presumed reasonable.
Nothing in the record rebuts this presumption. In selecting the revocation
sentence, the district court considered the nature and circumstances of the violations
and Mr. Richardson’s history and characteristics. See 18 U.S.C. § 3553(a)(1). The
court recognized “Mr. Richardson has substance abuse issues” but “his major concern
is mental health issues,” and that many of his violations related to his failure to
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comply with treatment obligations imposed by his conditions of release. ROA Vol.
III at 106–08. The court considered “the need for the sentence imposed” to provided
needed “correctional treatment in the most effective manner[,]” 18 U.S.C. §3553(a),
recommending that Mr. Richardson be placed in a Bureau of Prisons medical facility
“where they can evaluate and address and treat his mental health conditions.” ROA
Vol. III at 107. Lastly, although it imposed the maximum term of imprisonment
within the Guidelines range, the court elected not to impose a further term of
supervised release thereafter. The court explained, “I [] don’t think that we have any
sense that we can do anything that will work” on supervised release. Id. at 108. While
the district court did not expressly identify each of the factors enumerated in 18
U.S.C. § 3553(a), “it is enough if the district court considers § 3553(a) en masse and
states its reasons for imposing a given sentence.” United States v. Kelley, 359 F.3d
1302, 1305 (10th Cir. 2004). The district court did just that.
On our independent review of the record, we conclude the district court’s
revocation sentence is reasonable and plainly within “the bounds of permissible
choice” given the facts and circumstances of the case and the factors set forth in 18
U.S.C. § 3553(a). United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013)
(quotation marks omitted). We can perceive no non-frivolous argument that the
sentence imposed was not substantively reasonable.
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III. CONCLUSION
Mr. Richardson lacks any non-frivolous grounds for reversal based on the
issues raised in his counsel’s Anders brief or in his own pro se submission to this
court. We therefore GRANT counsel’s request to withdraw, and we DISMISS the
appeal.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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