United States v. Alter

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS February 27, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-3202
v. (D.C. No. 6:11-CR-10225-MLB-1)
(D. Kan.)
MATTHEW ALTER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
After his conviction for possession of child pornography, Matthew Alter
was sentenced to 72 months imprisonment. With the case now before us, Mr.
Alter’s attorney has filed an Anders brief, advising that he discerns no colorable
basis for an appeal and seeking leave to withdraw. Anders v. California, 386 U.S.
738 (1967), authorizes a defendant’s lawyer to seek permission to withdraw from
an appeal if, “after a conscientious examination,” the lawyer finds the appeal
*
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order and judgment is not binding precedent except under the doctrines of law of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.
“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. Id. After all that, we must “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. Alter’s counsel identifies one potential point of
appeal in this case but represents that it lacks merit. He addresses the possibility
that the sentencing court focused, either as a procedural or substantive matter, too
much on avoiding unwarranted sentencing disparity between Mr. Alter and others
charged with similar crimes at the expense of other § 3553(a) factors. While
counsel ultimately concludes that this argument lacks merit, Mr. Alter has
submitted his own filing contending it does bear merit.
After our own independent review of the record, we agree with Mr. Alter’s
counsel that any appeal in this case would be fruitless. To be sure, the district
court focused on avoiding unwarranted sentencing disparities, but it also
expressly stated that it took into consideration the other applicable § 3553(a)
factors and it discussed at least one of the other factors specifically (the
seriousness of the offense). The court then offered to discuss all of the other
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remaining factors but counsel for both sides agreed that was unnecessary. Only
then did the court proceed to issue its judgment. This is more than enough to
persuade us that the district court did not abuse its discretion in the process it
followed. See, e.g., United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th
Cir. 2007). Neither, as a matter of substance, do we see any abuse of discretion
here. The district court issued a sentence below the advisory range and we are
given no reason to think that a lower sentence still was compulsory. See, e.g.,
United States v. Munoz-Nava, 524 F.3d 1137, 1148-49 (10th Cir. 2008).
Counsel’s motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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