United States v. Harsh , 368 F. App'x 873 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 3, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-8049
v. (D.C. No. 2:03-cr-00020-CAB-1)
(D. Wyo.)
THOMAS W. HARSH,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, EBEL and LUCERO, Circuit Judges.
While serving a term of supervised release that required him to abide by all
federal, state, and local laws, Defendant-Appellant Thomas W. Harsh was arrested in
Sheridan, Wyoming for aggravated assault. The district court revoked his supervised
release and sentenced him to twenty-four months’ imprisonment, the maximum allowed
under the statute. Mr. Harsh appealed, and his counsel has filed a brief seeking to
* After examining appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
withdraw on the ground that the appeal possesses no non-frivolous grounds to pursue.
See Anders v. California, 386 U.S. 738 (1967). We agree, and thus GRANT counsel’s
motion to withdraw and DISMISS the appeal.
I. Background
On August 8, 2003, Mr. Harsh pleaded guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court
sentenced him to forty-six months’ imprisonment, followed by three years of supervised
release. One condition of his supervised release provided that Mr. Harsh would not
commit another federal, state, or local crime during the term of his supervised release.
See 18 U.S.C. § 3583(d).
On November 18, 2008, while on supervised release after completion of his prison
sentence, Mr. Harsh was arrested in Sheridan County, Wyoming for aggravated assault.
That same day, a United States Probation Officer filed a Petition for Warrant for
Offender Under Supervision, alleging that Mr. Harsh violated the terms of his supervised
release by committing a crime. The district court held a revocation hearing on January
15, 2009. At the hearing, Officer Spencer Kukuchka of the Sheridan Police Department
testified that he responded to a 911 call outside an apartment complex in Sheridan, where
he saw one male standing over another male, who was lying motionless on the ground.
Officer Kukuchka identified the standing male as Mr. Harsh, and testified that he then
saw Mr. Harsh kick the other man in the face. Mr. Harsh refused the officer’s order to
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get on the ground, so the officer used his Taser on Mr. Harsh to subdue him. Mr. Harsh
did not testify at the hearing because of the pendency of the state charges against him.
Based primarily on Officer Kukuchka’s testimony, the district court revoked Mr.
Harsh’s supervised release. The court delayed sentencing him at that time so he could
resolve the state court matter arising from the assault. On April 10, 2009, the court held a
hearing for the purpose of determining Mr. Harsh’s sentence. Although the state court
case had not yet been resolved, Mr. Harsh decided to testify at this proceeding. He
testified that he acted only in self-defense, and that he did not kick the man in the face but
merely tried to free his leg when the man grabbed it. The district court did not find his
testimony to be credible, and sentenced him to twenty-four months’ imprisonment, the
maximum allowed by statute (although below the sentence recommended by the advisory
Sentencing Guidelines). Mr. Harsh filed a notice of appeal on May 5.
II. Discussion
Mr. Harsh’s court-appointed attorney filed an Anders brief seeking to withdraw
from the appeal on the ground that there were no meritorious grounds for appeal. See
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (“[Anders] authorizes
counsel to request permission to withdraw where counsel conscientiously examines a
case and determines that any appeal would be wholly frivolous.”). Mr. Harsh received a
copy of this brief and responded to this court by letter, seeking another attorney and
arguing that the district court erred in revoking his supervised release because he claims
that he has not been convicted of any crime.
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A month later, Mr. Harsh sent another letter to this court seeking to withdraw his
appeal and hoping to refile the appeal at a later date with another attorney. “[I]t is within
our discretion whether to accede to a litigant’s request to terminate his appeal.” United
States v. DeShazer, 554 F.3d 1281, 1285 n.1 (10th Cir. 2009) (citing Fed. R. Civ. P. 42(b)
(“An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties
or fixed by the court.” (emphasis added))). It is clear from his letter that Mr. Harsh does
not actually seek to withdraw his appeal, but rather seeks to have counsel represent him
in his appeal. (12/31/2009 Letter (“I would like a fair chance at this appeal and given
[sic] a fair chance to refile at a later date with a lawyer that will try to help me in this
legal matter.”).) Our consideration of his attorney’s Anders brief requires us to examine
the record fully and, if the appeal presents non-frivolous issues, we will either “deny the
motion to withdraw or grant the motion and appoint new counsel.” United States v. Hall,
499 F.3d 152, 156 (2d Cir. 2007) (per curiam); see also Anders, 386 U.S. at 744 (“[If the
court] finds any of the legal points arguable on their merits (and therefore not frivolous) it
must, prior to decision, afford the indigent the assistance of counsel.”). In either case,
Mr. Harsh will have counsel to represent him if we determine meritorious issues remain
in the appeal, which he still desires to have heard by this court. We therefore deny his
request to withdraw the appeal and proceed to consider whether this appeal presents any
non-frivolous claims.
The only argument specifically made by Mr. Harsh in the two letters he addressed
to this court is that the district erred in concluding that he violated the term of his
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supervised release that provided: “The defendant shall not commit another federal, state,
or local crime.” (R. Vol. I at 11.) According to Mr. Harsh, the court could not find him
in violation of that term because he claims he has not been convicted in state court on the
aggravated assault charge. The supervised release term, however, does not require that
Mr. Harsh not be convicted of any federal, state, or local crime, only that he not commit
any such crime. See 18 U.S.C. § 3583(d). The district court is thus authorized to revoke
his supervised release if it determines, by a preponderance of the evidence, that Mr.
Harsh did commit a state crime. See id. § 3583(e)(3) (authorizing revocation of
supervised release if the district court “finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.”).
As the criminal charges against Mr. Harsh in state court would require proof of his
guilt beyond a reasonable doubt as opposed to merely by a preponderance of the
evidence, the district court would still be entitled to revoke his supervised release even if
Mr. Harsh is ultimately acquitted of any state charges related to this matter. The
Sentencing Guidelines confirm this interpretation, as they permit revocation even if the
defendant was not even prosecuted for a crime. See U.S. Sentencing Guidelines § 7B1.1
cmt. n.1. (“A violation of this condition may be charged whether or not the defendant has
been the subject of a separate federal, state, or local prosecution for such conduct.”)
Therefore, the district court committed no error in revoking Mr. Harsh’s supervised
release in the absence of a state-court conviction.
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Nor do we find fault with Mr. Harsh’s sentence. Mr. Harsh was convicted for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), a class C
felony. See 18 U.S.C. § 924(a)(2); id. § 3559(a)(3). For violating the terms of
supervised release imposed as a result of the commission of a class C felony, he faced a
maximum term of two years in prison. Id. § 3583(e)(3). When a defendant commits a
crime of violence that results in the revocation of his supervised release, the Sentencing
Guidelines classify that conduct as a Grade A violation of supervised release. U.S.
Sentencing Guidelines § 7B1.1(a)(1). Mr. Harsh also has a criminal history category of
VI for purposes of the Sentencing Guidelines. The Guidelines recommend a sentence
between thirty-three and forty-one months for a defendant with a criminal history
category of VI who commits a Grade A violation, which is over the statutory maximum
of twenty-four months. Id. § 7B1.4(a). The district court thus sentenced him to twenty-
four months, with credit for time he served while awaiting the revocation hearing and
sentencing. A sentence of the statutory maximum that is below the advisory guideline
range is presumptively reasonable. See United States v. Ivory, 532 F.3d 1095, 1107
(10th Cir. 2008) (“[A] sentence within the Guidelines range is presumptively
reasonable.”); United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006) (applying
presumption of reasonableness to a statutory-maximum sentence “where the statutory
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maximum is lower than a properly-calculated guidelines range”). We see no evidence in
the record to rebut this presumption of reasonableness.1
III. Conclusion
Having fully reviewed the record in accordance with Anders, we conclude that Mr.
Harsh’s appeal presents no non-frivolous issues. We therefore GRANT counsel’s motion
to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
1
The only possible objection to this sentence is that when the district court initially
announced the sentence, it stated that Mr. Harsh’s troubles dated back to “the time [he]
first raped [his] sister.” (R. Vol. IV at 47.) The district court was incorrect, as it was
apparently Mr. Harsh’s step-father who raped Mr. Harsh’s sister. Any concern that this
misapprehension may have caused Mr. Harsh unfair prejudice was neutralized five days
later, however, when his counsel corrected the court about the matter at a subsequent
hearing in this case. At that hearing, the court stated, “I will accept the fact that he didn’t
rape his sister,” adding, “It doesn’t matter . . . . I didn’t sentence him for anything that
had to do with that reference.” (Id. at 99.)
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