United States v. Wilson , 442 F. App'x 370 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 4, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-4019
v.
(D.C. No. 2:10-CR-00528-CW-1)
(D. Utah)
EVERETT JAY WILSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
Everett Jay Wilson pleaded guilty to escape from custody in violation of 18
U.S.C. § 751(a) and was sentenced to 21 months imprisonment followed by 36
months supervised release. Mr. Wilson now appeals. His attorney, however, has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising us
that he discerns no colorable basis for an appeal and seeking leave to withdraw.
*
After examining the briefs 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order and judgment is not binding precedent except under the doctrines of law of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.
Anders authorizes a defendant’s lawyer to seek permission to withdraw
from an appeal if, “after a conscientious examination,” the lawyer finds the
appeal “wholly frivolous.” Id. at 744. Invoking Anders requires the lawyer to
“submit a brief to the client and the appellate court indicating any potential
appealable issues based on the record.” United States v. Calderon, 428 F.3d 928,
930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). The client may then
submit his own arguments for the court’s consideration. Calderon, 428 F.3d at
930. And we must then “conduct a full examination of the record to determine
whether [the] defendant’s claims are wholly frivolous.” Id. If they are, we may
grant counsel’s motion to withdraw and dismiss the appeal. Id.In his Anders brief, Mr. Wilson’s counsel identifies only one potential basis
for an appeal—that Mr. Wilson’s sentence was excessive—but concludes that this
argument is without merit. Despite being afforded an opportunity to do so, Mr.
Wilson has not submitted any materials disputing this analysis or identifying any
other arguments he would like to pursue. Similarly, the government has indicated
its intent not to respond to the Anders brief. After our own independent review of
the record, we agree with Mr. Wilson’s counsel that any appeal in this case would
be fruitless.
We review a district court’s sentencing decision for both procedural and
substantive reasonableness. United States v. Haley, 529 F.3d 1308, 1311 (10th
Cir. 2008). A sentence is procedurally unreasonable “if the district court
-2-
incorrectly calculates or fails to calculate the Guidelines sentence, treats the
Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors,
relies on clearly erroneous facts, or inadequately explains the sentence.” Id.
Because Mr. Wilson didn’t object to the procedural reasonableness of his sentence
at the time of sentencing, our review is for plain error. See United States v. Ruiz-
Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Here, there is no indication that
the district court committed any procedural error. While the court didn’t
explicitly cite the § 3553(a) factors, the record reveals that the court explained its
sentence by discussing Mr. Wilson’s history and characteristics, the seriousness
of the offense, the guidelines range, and the need to promote respect for the law.
This explanation was sufficient under our precedents. See id. at 1202 (“[A]
specific discussion of Section 3553(a) factors is not required for sentences falling
within the ranges suggested by the Guidelines.”). Accordingly, we cannot find
that Mr. Wilson’s sentence was procedurally unreasonable.
Neither can we say that Mr. Wilson’s sentence is substantively
unreasonable. This sentence is within Mr. Wilson’s properly-calculated
guidelines range, so it is entitled to a rebuttable presumption of reasonableness on
appeal. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see
also Rita v. United States, 551 U.S. 338, 347-51 (2007). We review sentences for
substantive reasonableness under an abuse of discretion standard and can reverse
only if the sentence is “arbitrary, capricious, whimsical, or manifestly
-3-
unreasonable.” Haley, 529 F.3d at 1311. In sentencing Mr. Wilson to 21 months
imprisonment, the district court placed considerable weight on Mr. Wilson’s high
criminal history score and the fact that this was his second conviction for escape.
The court explained that Mr. Wilson “has repeatedly demonstrated a disregard for
authority, a disregard for the law, and a disregard for himself.” ROA vol. 2 at 9.
“[T]o be one month from ending his sentence and then to walk out by showing the
officer who is confronting him the peace sign indicates that this defendant still
has not learned his lesson.” Id. In light of these considerations, we cannot say
that the district court’s sentencing decision was an abuse of its considerable
discretion.
Counsel’s motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-4-