United States v. Williams , 359 F. App'x 945 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 11, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3153
JESSE B. WILLIAMS, (D.C. No. 6:00-CR-10131-JTM-1)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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, submitted without oral argument.
Defendant-Appellant Jesse B. Williams was sentenced to an eighteen-month
term of imprisonment after he admitted violating the terms of his supervised
release. On appeal, Williams’ counsel has filed a motion to withdraw and a brief
*
This order and judgment is not binding precedent, except under the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.
pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Neither Williams
nor the government has filed a response to the Anders brief. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we GRANT counsel’s motion to
withdraw and DISMISS the appeal.
I
On May, 24, 2001, Williams pled guilty in the United States District Court
for the District of Kansas to distributing a controlled substance in violation of 21
U.S.C. § 841(a) (Count 1), and knowingly and intentionally using a
communication facility in causing or facilitating the commission of a felony in
violation of 21 U.S.C. § 843(b) (Count 2). As a result, Williams was sentenced to
eighty-four months’ imprisonment to be followed by a four-year term of
supervised release on Count 1 and to a concurrent forty-eight months’
imprisonment to be followed by a concurrent one-year term of supervised release
on Count 2.
After serving time in prison, Williams was released to his term of
supervised release. Williams was arrested twice while on supervised release
between May of 2007 and January of 2009. His probation officer also reported
that he struggled to comply with his drug abstention and testing requirements
during this time. Accordingly, and upon petition from the probation office, the
district court twice entered orders which modified the terms of Williams’
supervised release during this period. Subsequently, in April 2009, Williams was
2
arrested in Texas and brought to Kansas where he was charged with violating the
terms of his supervised release. Williams admitted that he had committed the
violations alleged. The district court revoked his supervised release and
sentenced him to a term of eighteen-months’ imprisonment. Williams then filed a
timely notice of appeal.
II
Under Anders, defense counsel may “request permission to withdraw where
[he or she] 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) (citation omitted). In such a case, “counsel must submit a brief to the
client and the appellate court indicating any potential appealable issues based on
the record,” and the client may then choose to submit his or her own arguments to
the court in response. Id. The court must then examine the record “to determine
whether defendant’s claims are wholly frivolous.” Id. If the court concludes the
claims are “wholly frivolous,” “it may grant counsel’s motion to withdraw and
dismiss the appeal.” Id.Williams’ counsel identifies only one potential issue in his Anders brief:
whether the sentence the district court imposed for Williams’ violations of the
terms of his supervised release was reasonable. Because we will affirm the
sentence imposed for a violation of the terms of supervised release so long as the
district court’s decision was “reasoned and reasonable,” United States v. Kelley,
3
359 F.3d 1302, 1304 (10th Cir. 2004) (quotation and citation omitted), and
because upon review of the record we conclude that the district court’s decision in
the instant case was “reasoned and reasonable,” we agree with counsel’s assertion
that this issue is “wholly frivolous.”
In determining the sentence to be imposed for violating the terms of
supervised release, the district court must consider the factors set forth in various
subsections of 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e)(3). These include
the factors set forth in §§ 3553(a)(2)(B)-(D) and §§ 3553(a)(6)-(7), which relate
to general sentencing objectives, § 3553(a)(1) which relates to the nature of the
offense and the defendant’s characteristics, and §§ 3553(a)(4) and 3553(a)(5)
which require the court to consider any relevant policy statement issued by the
Sentencing Commission. See id.
The district court in the instant case complied with each of these
requirements. Specifically, before imposing Williams’ sentence, the court noted
that it had “considered the nature and circumstances of [Williams’] violations,
[Williams’] characteristics, . . . the sentencing objectives set out by statute . . .
[and] the advisory, nonbinding Chapter 7 policy statements issued by the
Sentencing Commission.” Tr. of May 28, 2009 at 11: 1-6. Morever, the
eighteen-month term of imprisonment imposed by the district court is at the
4
bottom of the range suggested by the Guidelines’ Chapter 7 policy statements. 1
Accordingly, we conclude that the district court’s sentencing decision was
“reasoned and reasonable,” see Kelley, 359 F.3d at 1305 (“Having determined
that the district court properly considered the factors it was bound to review . . .
we have no difficulty in determining [the] . . . sentence was reasoned and
reasonable . . . .”), and Williams has no nonfrivolous basis for challenging his
sentence.
III
Counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
1
Section 7B1.4(a) of the Sentencing Guidelines suggests a term of
imprisonment of eighteen to twenty-four months for an offender such as Williams
who had a criminal history category of V at the time of his original sentencing
and who committed a Grade B violation while on supervised release
5