United States v. Fitzpatrick ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
November 2, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5026
(D.C. No. 4:13-CR-00142-JED-1)
JAMES CARL FITZPATRICK, JR., (N. D. Oklahoma)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
_________________________________
Mr. James Fitzpatrick, Jr. pleaded guilty to possession of a firearm and
ammunition after a felony conviction. The sentence included a three-year term of
supervised release.
The government sought revocation of supervised release, and Mr.
Fitzpatrick stipulated that he had violated the conditions by (1) committing a
*
The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed.
R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal
based on the briefs.
Our order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
crime, (2) drinking to excess, (3) driving under the influence of alcohol, (4) using
PCP, cocaine, and marijuana, and (5) leaving his residence without permission
from the probation department. The district court revoked the term of supervised
release and imposed a new sentence of 11 months in custody and 25 months of
supervised release. Mr. Fitzpatrick appeals.
His counsel filed a brief invoking Anders v. California, 386 U.S. 738(1967), and moved to withdraw based on the absence of any arguably meritorious
appeal points. We conclude that the only grounds for appeal would be frivolous.
Thus, we grant defense counsel’s motion to withdraw and dismiss the appeal.
I. The Nature of Our Inquiry
Under Anders, attorneys can seek leave to withdraw from an appeal when
they conscientiously examine a case and determine that an appeal would be
frivolous. Anders, 386 U.S. at 744. To obtain leave to withdraw, an attorney 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 [c]ourt 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.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (internal citations
omitted).
2
Defense counsel filed a brief, and Mr. Fitzpatrick bypassed the opportunity
to file his own brief. In these circumstances, we base our decision on (1) the brief
filed by defense counsel, and (2) the record on appeal.
II. Consideration of Possible Appeal Points
Nothing in defense counsel’s brief or the record suggests an error in the
guideline calculation, and the sentence fell within the guideline range. As a result,
the sentence is presumptively reasonable in length. See United States v. Trent,
767 F.3d 1046, 1051 (10th Cir. 2014), cert. denied, __ U.S. __, 135 S. Ct. 1447(2015). This presumption is rebuttable, but Mr. Fitzpatrick bears the burden of
showing that the sentence is unreasonable under the sentencing factors in 18
U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.
2006) (per curiam). He has not filed anything to satisfy that burden.
III. Conclusion
In the absence of any arguably meritorious appeal points, we grant defense
counsel’s motion to withdraw and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3