United States v. Small

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-1129
(D.C. No. 03-CR-122-MK)
CHRISTINE SMALL, (Colorado)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ANDERSON, Senior Circuit Judge.**
On March 25, 2003, Christine Small (Small) was charged in a nine-count
indictment filed in the United States District Court for the District of Colorado with
misuse of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B) and, in a
subsequently filed information, with one count of concealment of assets and false
statements in a bankruptcy proceeding, in violation of 18 U.S.C. § 152. She was
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
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 case is
therefore ordered submitted without oral argument.
represented at all times in the district court by the Public Defender’s office. Pursuant to a
plea agreement with the government, Small pled guilty to one count of the nine-count
indictment and the one count contained in the information. The government, inter alia,
ultimately dismissed the other eight counts in the indictment. A presentence report
indicated that Small had a guideline range of 0 to 6 months imprisonment, and
recommended that she be placed on probation subject to certain conditions. Small,
through her counsel, objected to one of the recommended conditions, namely that she be
subjected to further drug testing and treatment. In this connection, the presentence report
contained the following assessment of Small’s mental condition:
“Another important factor that I believe significantly affected
Ms. Small’s ability to think, use good judgment, and lowered
her ability to control her impulses was the combination of
using psychotropic medication and drinking heavily. First,
the defendant was using Klonapin. This medication works
synergistically with alcohol and potentiates the effects of
alcohol, lowering her ability to resist impulses and to think
about the meaning and consequences of her actions.
Moreover, she was taking two other psychotropic
medications, Effoxor and Risperdal. When used with alcohol,
these medications, as do other psychotropic medications,
cause idiosyncratic responses and can greatly affect judgment
and behavior. Thus, while there is not a clearly defined
interaction that occurs when using alcohol with either
medication, both medications used with alcohol can cause
abnormal behavior and judgment.”
Specifically, Small complained about the presentence report as follows:
Ms. Small has been given regular urine tests during the time
that she has been on pretrial release. None of these have been
positive. She does not believe that treatment for substance
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abuse (she has never used any illicit drugs) in addition to her
continued mental health counseling, is a necessary component
of her probation.
On March 15, 2004, Small was sentenced to five years probation on each of the
two counts she had pled guilty to, to be served concurrently, subject to certain conditions.
The conditions, which Small objected to, read as follows:
1) The defendant shall participate in a program of testing and
treatment for drug and alcohol abuse, as directed by the
probation officer. The defendant shall abstain from the use
of alcohol or other intoxicants during the course of
treatment and shall pay the cost of treatment as directed by
the probation officer.
2) The defendant shall participate in a program of mental
health treatment, as directed by the probation officer, until
she is released from the program by the probation officer.
The defendant shall pay the cost of treatment as directed
by the probation officer. The court authorizes the probation
officer to release to the treatment agency all psychological
reports and/or the presentence report, for continuity of
treatment.
* * * * *
4) If necessary, the defendant shall remain medication
compliant and shall take all psychiatric medications that are
prescribed by her treating psychiatrist.
At the sentencing hearing, Small’s counsel stated, inter alia, that he “strongly
endorsed the recommendation of the department for continued mental health treatment [of
Small] for obvious reasons.” However, counsel went on to state that he didn’t know
“whether given Ms. Small’s track record over the last several years with no . . . ‘dirty
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urine’ whether urinalysis testing needs to be a component of that.” The government in
response thereto “strongly urged the court to require the individual to continue with
random urinalysis . . . whatever is asked for in terms of maintaining her behavior” and
specifically noting “the synergistic effect of alcohol and the psychotropic medication that
has been taken,” referred to in the presentence report. In response thereto, at sentencing,
the court stated that Small “will refrain from the unlawful use of a controlled substance
and submit to one drug test within – to submit to drug – one drug test during the period
of probation and – well, I guess it’s three tests during the period of probation.”
On April 1, 2004, Small, through the Public Defender’s office, filed a notice of
appeal in which she indicated she “wishes to appeal from certain conditions of probation
that were imposed over her objections, including a condition requiring that she submit to
urine testing for unauthorized drug use.”
On July 28, 2004, this court appointed the Public Defender’s office to represent
Small in this court on her appeal. On September 24, 2004, the Public Defender’s office
filed an “Opening Brief Pursuant to Anders v. California.” In its so-called “Anders”
brief, by way of an “introduction,” counsel spoke as follows:
On July 28, 2004, this Court appointed the Office of the
Federal Public Defender to represent Christine Small in her
direct appeal to the Tenth Circuit. After reviewing the files
and records in this case, counsel has determined that it is
necessary to file a brief pursuant to Anders v. State of
California, 386 U.S. 738 (1967). Counsel is aware of his duty
as an advocate to support a client’s appeal to the best of his
ability. However, Anders teaches that “if counsel finds his
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case to be wholly frivolous, after a conscientious examination
of it, he should so advise the court and request permission to
withdraw.” Id. at 743. Counsel has concluded that this appeal
is frivolous in that there is no challenge to the validity of the
defendant’s guilty plea, and the defendant’s sentence of
probation was at the low end of the applicable guideline
range. Further, the special conditions the district court
imposed, only one of which was the subject of an objection,
were within the court’s discretion and were reasonably related
to the nature and circumstances of the offense. Finally,
because Ms. Small received a sentence of probation, there are
no claims pursuant to Blakely v. Washington, 124 S.Ct. 2531(2004). Accordingly, pursuant to Anders, counsel is filing
this brief, a copy of which will be furnished to Ms. Small.
In the “Conclusion” to his Anders brief, the Public Defender asked permission to
withdraw from further representing Small on appeal. On October 15, 2004, the United
States Attorney filed on behalf of the United States a letter wherein he stated that, in view
of the brief filed by the Public Defender’s office on behalf of Small, it “will not file a
brief in this matter.”
As required, a copy of the Public Defender’s Anders brief was sent Small. In
response thereto, on November 4, 2004, she filed “Appellant’s Response to Anders
Brief.” In that response, Small did not really discuss the merits of her appeal. Rather, she
complained, repeatedly, that since her sentencing, she had been unable to contact her
counsel, that he had not returned her telephone calls, and the like. As previously noted,
this court had already appointed the Public Defender’s office to represent Small in this
court on her appeal. However, in her pro se brief, Small stated that subsequent to our
appointment of the Public Defender’s office to represent her on appeal, she had filed a
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motion to “reassign new counsel.”1 According to Small, we had “acknowledged” our
receipt of her motion, “but no decision had been made on my request.” In any event, in
her pro se response to the Public Defender’s Anders brief, Small again asked that she be
given another attorney to represent her in this appeal.
As indicated, pursuant to a plea agreement, in which Small received many
concessions from the government, one of which was that the government would not ask
for a “prison sentence,” Small entered a plea of guilty to Count 8 of the indictment and to
the one count set forth in the information. There is absolutely nothing in the record
before us to indicate that Small has any desire to withdraw her plea of guilty. Under the
United States Sentencing Guidelines, Small’s guideline range was 0 to 6 months
imprisonment. However, the district court, following a recommendation in the
presentence report, elected not to impose any imprisonment, and placed her on probation
for five years on each count, to be served concurrently. There is nothing in the present
record to indicate that Small has any complaint about being placed on probation, in lieu of
some incarceration. There is, as above indicated, a complaint by Small, in the district
court and in this court, as to certain of the “conditions” imposed by the district court in
connection with her sentence that she be placed on probation for five years. Specifically,
she complains about the order of the district court that she receive periodic urine testing
A motion to excuse the Public Defender from representing Small in this appeal
1
was received by this court on September 28, 2004, but has not been acted on so far.
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and that she continue to obtain treatment for her physical and emotional problems. In this
regard, the presentence report indicates that Small had, at least in the recent past, mental
and emotional problems, had used alcohol, on occasion, to excess, and had apparently
mixed alcohol with medications. We are not impressed with Small’s suggestion that,
because she had not tested “positive” in urine tests conducted during the time she was on
pretrial release, there was no further need for urine testing. With her history of emotional
and mental problems, the district court’s order for periodic urine testing and treatment for
her physical and emotional problems was most reasonable.
In United States v. Walser, 275 F.3d 981, 987 (10th Cir. 2001), we spoke as
follows: “Courts are given broad discretion in the imposition of conditions of supervised
release.” Without belaboring the point, we hold that, based on the record before her, the
conditions imposed by the district judge in the present case come well within that “broad
discretion” mentioned in Walser. And the present case does not come with any of the
“exceptions,” which are mentioned in Walser.
Accordingly, as we did in United States v. Moore, 2003 W.L. 1963205 (10th Cir.
Apr. 29, 2003), an Anders case, we Dismiss appellant’s appeal as frivolous under Anders
and Grant counsel’s motion to withdraw. Small’s request for the appointment of new
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counsel is Denied as moot.2
ENTERED FOR THE COURT,
Robert H. McWilliams
Senior Circuit Judge
2
For other 10th Circuit cases involving the application of Anders to frivolous
appeals, see United States v. Keifer, 2001 W.L. 391711 (Apr. 18, 2001) , United States v.
Brown, 2000 W. L. 1616100 (Oct. 30, 2000), and United States v. Shipley, 1991 W.L.
164278 (Aug. 21, 1991).
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