United States v. Dallas , 588 F. App'x 797 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
October 23, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-2195
(D.C. No. 1:98-CR-00338-JAP-2)
MARCUS DALLAS, (D. of N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **
Marcus Dallas appeals the twelve month and one day sentence imposed by
the district court for violating the terms of his supervised release. Mr. Dallas’s
counsel moved to withdraw, pursuant to Anders v. California, 386 U.S. 738(1967), on the ground that the only potential appealable issue, the reasonableness
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
of Dallas’s sentence, is wholly frivolous. We have jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291.
Because we agree there are no meritorious issues to be raised on appeal, we
grant the motion to withdraw and dismiss the appeal.
I. Background
In 1998, Dallas pleaded guilty to possession with intent to distribute more
than 500 grams of a mixture and substance containing cocaine in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The district court sentenced Dallas to 30
months’ imprisonment followed by four years of supervised release.
In 2001, Dallas violated the conditions of his supervised release, and he
was sentenced to an additional four months’ imprisonment followed by two years
supervised release. Soon after Dallas finished serving his additional time, the
government again petitioned to revoke Dallas’s supervised release, alleging that
he had violated several conditions of his release. In 2002, while still on
supervised release, Dallas was indicted on a state murder charge. He was later
convicted of second-degree murder and sentenced by the state court to 12 years’
imprisonment followed by four years’ probation. After his state conviction, the
government amended its earlier revocation petition to include Dallas’s violation
of the mandatory condition of his release that he not commit another crime.
In 2013, after his state incarceration was complete, Dallas came before the
district court on his supervised release violations. The district court sentenced
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Dallas to twelve months and one day in prison with no further period of
supervised release. The United States Sentencing Guidelines recommended a
range of 12 to 18 months’ imprisonment based on Dallas’s commission of a Grade
A release violation and his criminal history category of I. See U.S. Sentencing
Guidelines Manual § 7B1.4 (2013) (revocation table). At sentencing, the district
court stated that it had reviewed the violation report and the factors under 18
U.S.C. § 3553. The court determined that a low-end sentence with no additional
supervised release was appropriate given the time that had lapsed since the
violations occurred and Dallas’s pending state parole and probation obligations
stemming from his murder conviction.
After timely filing a notice of appeal, Dallas’s counsel moved to withdraw
and filed an Anders brief. The government did not file a brief in response. Dallas
was notified of his right to respond to the Anders brief, but did not do so.
II. Discussion
Under Anders, if a defendant’s counsel decides “after a conscientious
examination” of the case that the defendant’s appeal is “wholly frivolous,” he
may request permission to withdraw after submitting a brief identifying “anything
in the record that might arguably support the appeal.” Anders, 386 U.S. at 744.
We then conduct “a full examination of all the proceedings,” and, if we agree
with counsel that there are no “legal points arguable on their merits,” we may
grant the motion to withdraw and dismiss the appeal. Id. The only potentially
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appealable issue identified by Dallas’s counsel is the procedural and substantive
reasonableness of Dallas’s sentence.
We review sentencing decisions for reasonableness under a deferential
abuse-of-discretion standard. United States v. Huckins, 529 F.3d 1312, 1317
(10th Cir. 2008). A sentence must be both procedurally and substantively
reasonable. United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). Our
review of procedural reasonableness “focuses on whether the district court erred
in calculating or explaining the sentence. Substantive reasonableness focuses on
whether the length of the sentence is reasonable in light of the factors contained
in 18 U.S.C. § 3553(a).” United States v. Halliday, 665 F.3d 1219, 1222 (10th
Cir. 2011) (citation and internal quotation marks omitted). A sentence that falls
within the properly calculated guidelines range is presumed to be substantively
reasonable. United States v. McBride, 633 F.3d 1229, 1233 (10th Cir. 2011)
(noting that the presumption applies “in reviewing a revocation-of-supervised-
release sentence within the range suggested by the Commission’s policy
statements”).
We agree with defense counsel that nothing in the record suggests Dallas’s
sentence was either procedurally or substantively unreasonable. Procedurally, the
district court stated that it considered the factors listed in § 3553(a) and the court
imposed a sentence at the bottom end of the range recommended by the Chapter 7
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policy statement. See United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010).
Accordingly, there was no procedural error.
Substantively, the within-guidelines sentence is entitled to a presumption of
reasonableness. See McBride, 633 F.3d at 1232–33. We see no non-frivolous
basis in the record to rebut that presumption. See United States v. Dunbar, 718
F.3d 1268, 1282 (10th Cir. 2013) (noting that we reverse a sentence for
substantive unreasonableness “only if the sentence, in light of the sentencing
factors referenced in 18 U.S.C. § 3553(e), was an abuse of discretion because it
was ‘arbitrary, capricious, whimsical, or manifestly unreasonable’” (quoting
United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012))).
In sum, the district court’s sentence of twelve months and one day was both
procedurally and substantively reasonable. Therefore, the district court did not
abuse its discretion.
III. Conclusion
After conducting a full review of the record, we conclude there is no non-
frivolous ground for Dallas’s appeal. Therefore, the motion to withdraw is
GRANTED and the appeal is DISMISSED.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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