United States v. Archuleta , 356 F. App'x 204 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 16, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-4062
v. (D. Utah)
BENJAMIN ARCHULETA, (D.C. No. 2:05-CR-00676-DB-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining appellant’s 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).
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This order and judgment is not binding precedent except under the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.
Benjamin Archuleta appeals from the district court’s modification of his
term of supervised release. Archuleta’s counsel has filed an Anders brief, 1
asserting he could find no meritorious basis for appeal and simultaneously
moving to withdraw as counsel. For those reasons set out below, this court
grants counsel’s motion to withdraw and dismisses this appeal.
In 2008, Archuleta pleaded guilty to one count of providing false
information in the attempted acquisition of a firearm, in violation of 18 U.S.C.
§ 922(g)(6). Archuleta was sentenced to time served and was placed on
supervised release for a period of twenty-four months. One condition of
Archuleta’s supervised release was that he complete the RISE Program. 2 When
the magistrate judge supervising the RISE Program terminated Archuleta’s
participation in the program for noncompliance, the district court held a hearing
on whether to revoke Archuleta’s supervised release. At the revocation hearing,
the district court declined to decide whether Archuleta had violated the terms of
his supervised release. Instead, the district court decided that intensive
1
Anders v. California, 386 U.S. 738 (1967).
2
The United States District Court for the District of Utah describes the
RISE Program as follows:
The “RISE” Program is the cooperative effort of multiple agencies
involved with persons under federal supervision for criminal offenses
who are experiencing problems with drugs and/or alcohol. RISE
exists because of a recognition that substance abuse and addiction are
related to criminal activity and anti-social behavior.
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supervision was not beneficial to Archuleta. Accordingly, the district court
reduced the remaining term of Archuleta’s supervised release from twelve months
to six months and eliminated all conditions of supervised release other than the
condition that Archuleta not violate state, local, or federal law. The district court
described to Archuleta the results of its modifications of supervised release as
follows: “I’m going to essentially cut you loose.”
After Archuleta filed a pro se notice of appeal, counsel filed an Anders
brief advising the court that this appeal is wholly frivolous. Accordingly, counsel
seeks permission to withdraw. Pursuant to 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). Counsel is required to submit an
appellate brief “indicating any potential appealable issues.” Id. Once notified of
counsel’s brief, the defendant may then submit additional arguments to this court.
Id. We “must then conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous.” Id.
Although this court attempted to notify Archuleta of counsel’s Anders brief,
all mail was returned as undeliverable. The government declined to file a brief.
Thus, our resolution of the case is based on counsel’s Anders brief and this
court’s independent review of the record. That independent review confirms
counsel’s assertion that this appeal is meritless. In particular, the district court
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clearly had the power to modify both the conditions and length of Archuleta’s
term of supervised release. 18 U.S.C. § 3583(e)(2). More importantly, the
revised term and conditions of supervised release all redounded in Archuleta’s
favor. Accordingly, we GRANT counsel’s motion to withdraw and DISMISS
this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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