United States v. Toliver ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 20, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 06-1534
v. D. Colo.
MELVIN JERROD TOLIVER, (D.C. No. 97-cr-00388-EWN)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
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.
On remand from this Court, Melvin Jerrod Toliver was re-sentenced to
twenty-two months imprisonment for the revocation of his term of supervised
release. See United States v. Toliver, 183 Fed. Appx. 745 (10th Cir. 2006)
*
This order and judgment is not binding precedent except under the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.
(unpublished) (remanding with instructions to vacate sentence and to re-sentence
Toliver following a hearing). He received no additional term of supervised
release or probation. Toliver appeals from that sentence.
Toliver’s counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and has moved for leave to withdraw. The certificate of service
indicates counsel served Toliver with the brief and motion. A copy of the Anders
brief and motion to withdraw was also sent to Toliver pursuant to 10th Cir. R.
46.4(B)(2), but was returned to the Court stamped “No Such Number.” In
response to an order from this Court, Toliver’s counsel indicated he could no
longer locate Toliver. Additionally, the response stated Toliver is no longer in
federal custody because he has completed serving his sentence for the revocation
of his supervised release. Toliver has not attempted to contact the Court nor has
he kept the Court apprised of where he can be reached. The government has
declined to file a response brief.
Toliver’s appeal is moot. “Where judicial relief will not remedy the
appellant’s injury, the appellant can no longer satisfy the Article III case or
controversy jurisdictional requirement and the appeal is moot.” United States v.
Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007) (quotation omitted). “In this
circuit, under ordinary circumstances, a defendant who has served his term of
imprisonment but is still serving a term of supervised release may challenge his
sentence if his unexpired term of supervised release could be reduced or
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eliminated by a favorable appellate ruling.” Id. Because Toliver has completed
serving his sentence and is not subject to supervision, we dismiss his appeal.
Were Toliver’s appeal not moot, we would dismiss it as frivolous. Anders
holds “if counsel finds [his client’s] case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw.” 386 U.S. at 744. Counsel must submit to both the court
and his client a “brief referring to anything in the record that might arguably
support the appeal.” Id. The client may then “raise any points he chooses.” Id.Thereafter, the court must completely examine all the proceedings to determine
the frivolity of the appeal. “If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal . . . . [I]f it 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 to argue the appeal.” Id.We have fully examined the proceedings as required by Anders and
conclude the appeal is wholly without merit. We review the imposition of a
sentence in excess of that recommended by the Chapter 7 policy statement of the
Sentencing Guidelines to determine whether it was reasoned and reasonable. See
United States v. Rodriguez-Quintanilla, 442 F.3d 1254 (10th Cir. 2006). As
pointed out by counsel in his Anders brief, the district court clearly articulated
valid reasons for imposing a sentence exceeding the advisory guidelines range for
the revocation of Toliver’s term of supervised release. See United States v.
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Brooks, 976 F.2d 1358, 1360-61 (10th Cir. 1992) (upholding sentence as reasoned
and reasonable where district court demonstrates awareness of USSG §7B1 policy
statements, requested briefing from counsel, and clearly states its reasons for
imposing a sentence above the advisory guideline range). While the court
departed upward from the imprisonment range set out in USSG §7B1.4(a), it did
not exceed the maximum sentence allowed by statute. See 18 U.S.C. § 3583(e).
Furthermore, the district court properly relied on facts in the Supervised Release
Violation Report, which Toliver did not contest at the re-sentencing hearing. See
United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994) (“Failure to object to
a fact in a presentence report, or failure to object at the hearing, acts as an
admission of fact.”).
We DISMISS the appeal as moot and GRANT counsel’s motion to
withdraw.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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