United States v. Ahidley

FILED
United States Court of Appeals
Tenth Circuit
March 31, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-2150
v. (D.C. No. 2:12-CR-02657-RB-1)
(D.N.M.)
GARY RAYMOND AHIDLEY, JR.,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MORITZ, Circuit Judges. **
Defendant-Appellant Gary Ahidley, Jr. appeals from his 11-month sentence
imposed by the district court upon revocation of supervised release. His counsel
filed a brief and motion to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), and we dismiss the appeal and grant counsel’s motion.
*
This order and judgment is not binding precedent, except under the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.
In April 2013, Mr. Ahidley was convicted of being a felon in possession of
a firearm. He was sentenced to 37 months’ imprisonment, followed by two years
of supervised release. He was released from prison in March 2015. Later that
November, the probation office petitioned to revoke his supervised release
because he had missed several scheduled substance abuse and mental health
counseling appointments. A federal warrant was issued for Mr. Ahidley’s arrest
shortly thereafter. Mr. Ahidley was arrested and charged with battery in tribal
court that December. He pled guilty, and finished his tribal court sentence in
April 2016. However, he was not released because of a federal detainer based on
his outstanding federal arrest warrant.
The district court held a supervised release revocation hearing on June 7.
Mr. Ahidley admitted he violated the terms of his supervised release, after which
the court heard argument regarding the appropriate sentence. The court found
that his guideline range was five to 11 months’ imprisonment. Mr. Ahidley asked
the court to run his sentence concurrently with his tribal sentence, which would
make him eligible for a time-served sentence. The court sentenced Mr. Ahidley
to 11 months’ imprisonment after noting that “[e]very time [he] drink[s], someone
gets hurt. And . . . it’s been that way for a long time. . . . [O]bviously,
supervision doesn’t work.” 3 Rawle 14. After providing Mr. Ahidley with an
opportunity to allocute, the court remarked that Mr. Ahidley failed to appreciate
the prior opportunities he had been given to avoid prison and reminded him that
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the court could statutorily impose a two-year sentence. See id. at 16. Mr.
Ahidley then sought to appeal.
Mr. Ahidley’s counsel filed an Anders brief and an errata sheet indicating
that Mr. Ahidley was served with the brief. He was given the requisite notice by
this court, pursuant to 10th Cir. R. 46.4(B)(2). Neither Mr. Ahidley nor the
government has filed a response. Under Anders, “if counsel finds his 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. If we agree with
counsel after examining the record, we may grant the motion to withdraw and
dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.
2005).
After reviewing the record, we find no error. Mr. Ahidley argues that the
district court judge was biased and was required to disqualify himself pursuant to
28 U.S.C. § 455(b)(1). We disagree. While a judge’s bias could arise from
personal or extrajudicial sources, the tenor of the judge’s comments do not
suggest a wrongful or inappropriate position that might indicate bias. See Liteky
v. United States, 510 U.S. 540, 550 (1994). In light of the Sentencing Guidelines
and Mr. Ahidley’s conduct, imposing an 11-month sentence was an entirely
permissible exercise of discretion.
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Accordingly, we DISMISS the appeal and GRANT counsel’s motion to
withdraw.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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