United States v. Lowe , 429 F. App'x 747 ( 2011 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 8, 2011
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 10-5149
(D.C. No. 4:93-CR-00186-GKF-1)
KENNETH ALAN LOWE, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.
I. INTRODUCTION
Defendant Kenneth Alan Lowe filed a notice of appeal from the revocation of his
supervised release and imposition of a 23-month term of imprisonment followed by 13
months’ supervised release. Mr. Lowe’s counsel determined after a diligent search of the
*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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
record that there are no issues that could support an appeal. She therefore filed a motion
to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and finding no
meritorious issues, we dismiss the appeal. We also grant counsel’s motion to withdraw.
II. BACKGROUND
In 1994, Mr. Lowe pleaded guilty to conspiracy in violation of 18 U.S.C. § 371and robbery affecting interstate commerce and aiding and abetting in violation of 18
U.S.C. §§ 1951 and 1952. He was sentenced to 237 months’ imprisonment followed by 3
years’ supervised release. He was ordered to pay a $100 special assessment and $10,000
in restitution. Although the rest of the sentence remained intact, Mr. Lowe’s term of
imprisonment was reduced several times. In 1995, he was resentenced because of a
remand judgment to 228 months’ imprisonment. In 1996, pursuant to the government’s
motion requesting a downward departure because of Mr. Lowe’s substantial assistance in
prosecuting and convicting other violent felons, his term was further reduced to 204
months. Mr. Lowe began his 3-year term of supervised release in 2009.
On September 23, 2010, a probation officer filed a petition to revoke Mr. Lowe’s
supervised release due to three alleged violations of standard and mandatory release
conditions. The government eventually dropped one of these allegations. Mr. Lowe
stipulated that he had violated a standard condition of his release by traveling outside the
judicial district without permission of the court or probation officer. Thus, the only
allegation in dispute at the revocation hearing was whether Mr. Lowe violated the
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mandatory condition, which states: “While on supervised release, you shall not commit
another Federal, state, or local crime and shall not illegally possess a controlled
substance.” ROA, Vol. 1 at 46.
The government presented substantial evidence that Mr. Lowe had been involved
in two burglaries. Summarizing some of that evidence, the district court stated:
The Government has shown that defendant’s car was in the proximity of the first
burglary, the clothing in the back of defendant’s car matched the clothing in both
robbery videos. The defendant admitted that his first story about the woman from
the casino in Tulsa was untrue. The defendant further had first told the story about
the other individual in the car as being related and then later changed that story.
ROA, Vol. 2, Doc. 106 at 39. Mr. Lowe insisted that despite his presence near the two
crime scenes, he did not know his companions were committing burglaries.
The district court found the government had met its burden of showing by a
preponderance of the evidence that Mr. Lowe had violated the conditions of his release
by committing a federal, state, or local crime. The court revoked Mr. Lowe’s supervised
release both for that violation and the stipulated violation regarding his unauthorized
travel. Mr. Lowe was sentenced to 23 months’ imprisonment followed by 13 months’
supervised release. The court stated that it took into consideration the sentencing factors
under 18 U.S.C. § 3553 and noted, among other things, the defendant’s extensive
criminal history. The burglaries were a grade B violation of his supervised release, see
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U.S.S.G. § 7B1.1, and Mr. Lowe had a category VI criminal history. 1 According to
those factors, his sentence was within the Sentencing Guidelines policy statement range,
see U.S.S.G. § 7B1.4, and below the statutory maximum, see 18 U.S.C. § 3583(e)(3).
Mr. Lowe filed a timely notice of appeal. His counsel then filed an Anders brief
and motion to withdraw, arguing that nothing in the record could support a reversal of the
revocation or a change in the sentence. Mr. Lowe did not file a response. The
government agreed there are no non-frivolous issues that could be raised on appeal and
notified the court that it would not file an answer brief.
III. DISCUSSION
A. Standard of Review and Applicable Law
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).
Under Anders, counsel must submit a brief to the client and the appellate court
indicating any potential appealable issues based on the record. The client may
then choose to submit arguments to the court. The Court must then conduct a full
examination of the record to determine whether defendant’s claims are wholly
frivolous. If the court concludes after such an examination that the appeal is
frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal.
1
The sentencing transcript depicts the court stating that the criminal history
category for Mr. Lowe is VI and the supervised release violation was grade D under the
Sentencing Guidelines. See ROA, Vol. 2, Doc. 116 at 2-3. We are convinced the “D” is
a typo, because the appropriate classification is clearly “B” under the Guideline
definitions, see U.S.S.G. § 7B1.1, and the sentence imposed is within the range for a
grade B violation as explained above. Furthermore, there is no grade “D” violation
defined under the Guidelines for supervised release violations. See id.
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Id. (citing Anders, 386 U.S. at 744). Because Mr. Lowe and the government declined to
file briefs, we have considered Mr. Lowe’s counsel’s Anders brief and have made a full
review of the record.
On appeal of a sentence imposed after revocation of supervised release, we review
the district court’s factual findings for clear error and its legal conclusions de novo. See
United States v. Tsosie, 376 F.3d 1210, 1217-18 (10th Cir. 2004), cert. denied, 543 U.S.
1155 (2005). “[W]e will not reverse a revocation sentence imposed by the district court
if it can be determined from the record to have been reasoned and reasonable.” United
States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir. 2005) (quotation omitted).
“In imposing a sentence following revocation of supervised release, a district court is
required to consider both [U.S.S.G.] Chapter 7’s policy statements as well as a number of
factors provided in 18 U.S.C. § 3553(a).” United States v. Cordova, 461 F.3d 1184, 1188
(10th Cir. 2006) (citation omitted). The Chapter 7 policy statements address violations of
supervised release and recommend advisory sentencing ranges.
In considering the 18 U.S.C. § 3553(a) factors, the district court “is not required to
consider individually each factor listed . . . nor is it required to recite any magic words
to show us that it fulfilled its responsibility to be mindful of the factors that Congress has
instructed it to consider before issuing a sentence.” Id. at 1189 (quotations omitted). But
the district court must “state in open court the reasons for its imposition of the particular
sentence,” 18 U.S.C. § 3553(c), and provide enough reasoning “to satisfy the appellate
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court that [the sentencing judge] has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007).
B. There Are No Meritorious Issues to Appeal
After reviewing the record, we agree with Mr. Lowe’s counsel that it indicates no
meritorious issues that may be appealed. Imposition of a prison sentence and supervised
release following revocation of supervised release is authorized under 18 U.S.C.
§ 3583(e)(3). See Johnson v. United States, 529 U.S. 694, 712-13 (2000). The sentence
imposed was within statutory bounds. See 18 U.S.C. § 3583(e)(3).
We need not address whether Mr. Lowe’s stipulation to unauthorized travel
outside the judicial district was knowing and voluntary because the court had independent
grounds for the revocation and sentence. The record contains sufficient evidence for the
court to find Mr. Lowe’s involvement in the alleged burglaries, which violated his
supervised release. Mr. Lowe exercised his opportunity to allocute under Fed. R. Crim.
P. 32.1(b)(2)(E), claiming not to have been knowingly involved with the burglaries. But
this only raises a credibility and weight-of-the-evidence issue “within the province of the
district court.” See United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009), cert.
denied, 129 S. Ct. 2418 (2009). Thus, the court properly found Mr. Lowe had violated
the conditions of his release.
The district court provided its reasons in open court both for revoking supervised
release and imposing the sentence. The court considered the advisory range from
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Chapter 7 policy statements of the Sentencing Guidelines and imposed a sentence within
the recommended range. See U.S.S.G. § 7B1.4. The court also stated that it had
considered the 18 U.S.C. § 3553 factors in imposing the sentence:
Specifically, the sentence reflects the seriousness of defendant’s violations and the
likelihood that the defendant will continue to be involved in criminal activity if
allowed to remain in the community. The Court recognizes extensive criminal
history and notes an ongoing pattern of criminal conduct. This revocation
sentence promotes respect for the law and will afford adequate deterrence to the
offender and to others who may be inclined to commit similar conduct in the
future. Furthermore this sentence will provide just punishment for the violations.
ROA, Vol. 2, Doc. 116 at 7.
Nothing suggests that the imposition of the sentence was procedurally
unreasonable. Given that the sentence was within the range recommended by the
Sentencing Guidelines, it is presumptively substantively reasonable. See Rita, 551 U.S.
at 347; United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). There is also no
ground for finding an abuse of discretion for substantive unreasonableness in light of the
court’s § 3553(a) analysis.
IV. CONCLUSION
We DISMISS the appeal and GRANT counsel’s motion to withdraw.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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