United States v. Wilson

Appellate Case: 21-1099 Document: 010110673884 Date Filed: 04/21/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 21-1099 & 21-1150
(D.C. No. 1:08-CR-00263-KHV-1)
WILLIAM I. WILSON, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges.
_________________________________
In Appeal No. 21-1099, William Wilson appeals the district court’s revocation
of his supervised release, its imposition of new terms of imprisonment and supervised
release, and its rejection of his claims of vindictive prosecution related to those
proceedings. Wilson’s counsel filed a motion to withdraw, together with a brief
under Anders v. California, 386 U.S. 738 (1967), based on counsel’s assessment that
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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any argument on appeal would be frivolous. We agree, grant counsel’s motion to
withdraw, and dismiss the appeal.
In Appeal No. 21-1150, Wilson proceeds pro se and appeals the district court’s
denial of his motion to modify his prison sentence so he could serve it at home.
Wilson’s opening brief in No. 21-1150 does not address the district court’s order,
which we affirm.
I. Background
A federal jury convicted Wilson in 2010 “on multiple counts of bank fraud,
aggravated identify theft, fraudulent use of a Social Security number, and fraud in
connection with an access device.” United States v. Wilson, 503 F. App’x 598, 600
(10th Cir. 2012). The district court sentenced him to ten years’ imprisonment
followed by five years of supervised release. The terms of supervised release
imposed by the district court at the time of Wilson’s conviction stated he “shall not
commit another federal, state or local crime,” prohibited him from “associat[ing]
with any person convicted of a felony,” required him to provide his probation officer
with “truthful and complete” monthly reports along with “access to any requested
financial information,” and directed him to “follow the instructions of the probation
officer,” among other things. No. 21-1150, R., vol. I at 126.
Wilson began violating these terms of supervised release immediately upon his
release by arranging for a known felon, Sonny Pilcher, to pick him up from prison.
Wilson testified that he also arranged for Pilcher to perform post-release banking
services for him by taking possession of Wilson’s money and periodically sending it
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back when Wilson asked for it. And Wilson testified that after his release he
“help[ed] [Pilcher] hire two attorneys,” No. 21-1099, R., vol. IV at 158, “had a lot of
correspondence” with Pilcher’s attorneys, id. at 86, and received mail from Pilcher.
Beyond his association with Pilcher, Wilson also submitted false and
incomplete reports to his probation officer that failed to report various wire transfers
and other receipts, and he refused to provide his probation officer with releases to
access his bank and credit card accounts.
The government sought revocation of Wilson’s supervised release based on
these violations. Wilson responded by filing a pro se motion to dismiss the petition
for revocation as a vindictive prosecution. The district court held a hearing, struck
Wilson’s pro se motion because he was represented by counsel and his attorney did
not sign it, found Wilson had violated the terms of his supervised release, and
sentenced Wilson to 10 months’ incarceration to be followed by 46 months of
supervised release. The district court imposed several special conditions on Wilson’s
supervised release, including that he “participate in a program of testing and/or
treatment for substance abuse,” “submit [his] person[] [and] property . . . to a search
conducted by a . . . probation officer,” and “participate in a program of cognitive
behavioral treatment.” Id., vol. I at 253.
Wilson filed a notice of appeal, a pro se motion to modify his prison sentence
so he could serve it at home, and a pro se motion to set aside the judgment as the fruit
of a vindictive prosecution. The district court denied the two pro se motions because
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Wilson’s counsel did not sign them and because it found the two motions lacked
merit. Wilson appealed those denials, resulting in two appeals in this court.
Appeal No. 21-1099 pertains to the district court’s entry of the revocation
judgment and Wilson’s vindictive-prosecution motions. Appeal No. 21-1150 pertains
to Wilson’s motion to modify his prison sentence. Wilson’s attorney in No. 21-1099
filed a motion to withdraw, together with an Anders brief. Wilson responded by
filing a pro se opening brief, which we construed as a response to the Anders brief.
He also filed pro se briefs in No. 21-1150. The government did not file any response
in No. 21-1099, but it did file a response in No. 21-1150. We consider the two
appeals seriatim.
II. Appeal No. 21-1099
If an attorney concludes after conscientiously examining a case that any appeal
would be frivolous, the attorney may so advise the court and request permission to
withdraw. Anders, 386 U.S. at 744. In conjunction with such a request, counsel must
submit a brief highlighting any potentially appealable issues and provide a copy to
the defendant. Id. The defendant may then submit a pro se brief. Id. If the court
determines that the appeal is frivolous upon careful examination of the record, it may
grant the request to withdraw and dismiss the appeal. Id. “On the other hand, if it
finds any of the legal points arguable on their merits (and therefore not frivolous) it
must, prior to decision, afford the [defendant] the assistance of counsel to argue the
appeal.” Id.4
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For the reasons that follow, we conclude Appeal No. 21-1099 is frivolous. We
therefore grant counsel’s motion to withdraw and dismiss the appeal.
A. Possible Issues on Appeal Discussed in Counsel’s Anders Brief
1. Sufficiency of the Evidence Supporting the District Court’s Finding that
Wilson Violated the Terms of His Supervised Release
Wilson posits the evidence did not support the district court’s finding he had
violated various terms of his supervised release. Under 18 U.S.C. § 3583(e)(3), a
court may “revoke a term of supervised release[] and require the defendant to serve
in prison all or part of the term of supervised release . . . if the court . . . finds by a
preponderance of the evidence that the defendant violated a condition of supervised
release.” This court reviews a “district court’s decision to revoke supervised release
for abuse of discretion.” United States v. Jones, 818 F.3d 1091, 1097 (10th Cir.
2016) (internal quotation marks omitted). “A district court abuses its discretion only
where it (1) commits legal error, (2) relies on clearly erroneous factual findings, or
(3) where no rational basis exists in the evidence to support its ruling.” United States
v. Englehart, 22 F.4th 1197, 1207 (10th Cir. 2022) (internal quotation marks
omitted).
a. Wilson’s Submission of False and Incomplete Reports
The government alleged Wilson violated the condition of his supervised
release requiring him to submit truthful and complete written reports to his probation
officer each month. In support of this allegation, it submitted evidence an individual
named Jesse McMillan sent Wilson $2,215 via wire transfers in January and February
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2020 and that Wilson failed to include these wires in his monthly cash-flow reports to
his probation officer. It also presented evidence Wilson received money from
governmental agencies and non-profits that he failed to include on the reports. And it
presented evidence Wilson failed to report all his employers and his income from
them.
The government further alleged that because Wilson signed his February 2020
report “under penalty [of] perjury” that the cash-flow statement was “true and
correct,” No. 21-1099, R., vol. IV at 23, he violated 18 U.S.C. § 1001, which
criminalizes knowingly making false statements to the government. And it
contended that by violating this law, Wilson violated the condition of his supervised
release that proscribed committing another crime.
Wilson testified that the wires in question were actually from Pilcher and that
they were merely a return of money he had given Pilcher to hold for him. He argues
he did not knowingly make any false representation because he thought the forms
only asked for inflows of new cash, not his own money being given back, and he did
not realize he needed to report assistance from government agencies and non-profits.
Regarding his failure to report all his employers, Wilson testified that he only worked
for the missing employer for two hours and therefore “didn’t think it was a big deal
to report this” employer or the resulting income. No. 21-1099, R., vol. IV at 101.
Wilson’s version of events fails to explain or account for McMillan’s role in
wiring money to Wilson. It also conflicts with emails Wilson sent to his probation
officer indicating that “every other week or so [Pilcher] would send me $20 or $25 to
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help me out with my daily expenses. There was never any significant amount of
money that I received from Mr. Pilcher.” No. 21-1099, R., vol. IV at 105. And
Wilson’s claim the wires were a return of funds does not add up because he testified
he gave Pilcher $125.57 less than the total of the wires. Considering the record as a
whole, the district court did not clearly err by drawing the inference that Wilson
knowingly submitted false and incomplete monthly reports. See United States v.
Fitzgibbon, 576 F.2d 279, 284 (10th Cir. 1978) (noting the court “cannot read [a
defendant’s] mind, so we have to infer his knowledge [for purposes of § 1001] from
his behavior and all of the facts in evidence”).
b. Wilson’s Failure to Provide Access to Financial Information
The district court also found Wilson violated the condition of his supervised
release requiring him to provide access to requested financial information. The
record includes testimony from Wilson’s probation officer that he requested that
Wilson “complete a release of information . . . for all financial accounts you have had
in the last five years.” No. 21-1099, R., vol. IV at 32. And it includes testimony
from the probation officer that Wilson did not provide the requested releases for
known bank accounts. The district court did not clearly err in finding a violation
consistent with this testimony.
c. Wilson’s Association with a Felon
The district court further found that Wilson violated the condition of
supervised release that he refrain from associating with any person convicted of a
felony. And it found that he violated the condition of supervised release that he
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follow the instructions of the probation officer by failing to heed his probation
officer’s instruction to refrain from associating with any felons.
Wilson testified that he arranged for a known felon, Pilcher, to pick him up
from prison. He further testified that he arranged for Pilcher to hold some of his
money and to return it to him via periodic payments. He also acknowledged sending
an email stating that Pilcher gave him spending money “every other week or so.”
No. 21-1099, R., vol. IV at 105. Wilson’s probation officer testified that he
instructed Wilson to avoid associating with Pilcher but later found in Wilson’s
apartment mail from Pilcher to Wilson and documents evincing Wilson’s
involvement in legal matters pertaining to Pilcher. The probation officer further
testified that Pilcher’s former assistant told him Pilcher paid Wilson for his legal
services. And Wilson’s own witness testified that Wilson and Pilcher had spoken by
phone in February 2020. Given this evidence, the district court did not clearly err in
finding Wilson violated these conditions of supervised release.
2. Substantive Reasonableness of the Revocation Sentence
Wilson argues his revocation sentence was substantively unreasonable. We
review unpreserved substantive sentencing challenges for reasonableness where, as
here, the defendant argued for a lower sentence in the district court. See United
States v. Mancera-Perez, 505 F.3d 1054, 1059 (10th Cir. 2007). We apply “a
presumption of reasonableness” to “a revocation-of-supervised-release sentence
within the range suggested by the [United States Sentencing] Commission’s policy
statements.” United States v. McBride, 633 F.3d 1229, 1232–33 (10th Cir. 2011).
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The presumption applies here because the district court’s sentence was within the
range contemplated by U.S. Sentencing Guidelines Manual § 7B1.4 (U.S. Sentencing
Commission 2018).
Wilson does not address the presumption or argue the evidence is sufficient to
rebut it. And our independent review of the record did not uncover any evidence that
would rebut the presumption. Wilson does argue that the district court’s imposition
of an additional term of supervised release was unreasonable because it conflicts with
the congressional policy embodied in the statutes that govern supervised release. We
reject this argument because the additional term of supervised release imposed by the
court falls within the range authorized by the applicable statute, 18 U.S.C. § 3583(h).
3. The District Court’s Imposition of Special Conditions of Supervised
Release
The district court imposed several special conditions on the supervised release
that it ordered to follow the revocation term of incarceration. Wilson argues that the
evidence does not support imposition of three of these conditions.
District courts have broad discretion to impose special conditions of release,
but the conditions must be constitutionally sound and must satisfy the requirements
of 18 U.S.C. § 3583(d). United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).
The special conditions “must be reasonably related to at least one of the following:
the nature and circumstances of the offense, the defendant’s history and
characteristics, the deterrence of criminal conduct, the protection of the public from
further crimes of the defendant, and the defendant’s educational, vocational, medical,
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or other correctional needs.” Id. (citing § 3583(d)(1)). The conditions “must involve
no greater deprivation of liberty than” reasonably necessary to deter crime, protect
the public, and promote the defendant’s rehabilitation. Id. (citing § 3583(d)(2)). And
the conditions “must be consistent with any pertinent policy statements issued by the
Sentencing Commission.” Id. (citing § 3583(d)(3)). In reviewing challenges to
special conditions of supervised release, “we apply the abuse-of-discretion standard.”
United States v. Munoz, 812 F.3d 809, 817 (10th Cir. 2016).
Wilson first challenges the district court’s requirement that he “participate in a
program of testing and/or treatment for substance abuse approved by the probation
officer,” No. 21-1099, R., vol. I at 253. He points out that he has regularly tested for
alcohol and drug use over the past 11 years without a single positive test. And he
therefore contends the district court abused its discretion by imposing this condition.
Wilson’s argument downplays his prior substance abuse, recounted in the
presentence investigation report, that supported the district court’s imposition of a
substance-abuse-treatment condition at his original sentencing. It also ignores
Wilson’s incarceration for more than 9 of the 11 years in question, and a 2019
post-release independent assessment recommending that Wilson attend at least
24 weeks of substance-abuse treatment. And it does not address the district court’s
statement that the treatment requirement can be removed if Wilson continues to test
negative. Considering these facts, the district court did not abuse its discretion by
imposing the special condition related to substance-abuse testing and treatment.
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Wilson next challenges the district court’s requirement that he submit to
searches of his person and property “when reasonable suspicion exists that [Wilson
has] violated a condition of [his] supervision and that the areas to be searched contain
evidence of this violation,” id. Wilson argued to the district court it should not
impose this condition because it was unnecessary given that he always consented to
searches in the past. We agree with Wilson’s counsel that “this is a standard
condition of release and [Wilson’s] argument that it need not be imposed on him
because he always ‘allowed’ [searches in the past] is of little weight.” Anders Br. at
12.
Wilson argues for the first time on appeal in his pro se response that the
district court abused its discretion by imposing this condition because his probation
officer recommended it, it is vague, it delegates authority to the probation officer to
decide whether reasonable suspicion exists to justify a search, and it will force him
into homelessness because no landlord will accept him as a tenant. Because he did
not make any of these arguments to the district court, we review these arguments
only for plain error. See United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir.
2021). And Wilson does not cite any authority that would support reversal under a
plain-error standard of review. Cf. United States v. Flaugher, 805 F.3d 1249, 1252
(10th Cir. 2015) (“The text of § 3583(d) . . . plainly authorizes warrantless-search
conditions . . . .”); United States v. Neal, 810 F.3d 512, 521 (7th Cir. 2016) (“Special
conditions authorizing warrantless searches are imposed frequently . . . .”) (collecting
cases).
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Wilson finally challenges the district court’s requirement that he “participate
in a program of cognitive behavioral treatment,” No. 21-1099, R., vol. I at 253. The
district court based its decision to impose this special condition on evidence that
Wilson lacked remorse for his crimes and expressed an unwillingness to change. It
noted that behavioral therapy can be “extremely effective in behavior modification,”
but recognized the reality that “unfortunately, you only get out of it what you are
willing to invest in it.” Id., vol. IV at 165. So it expressed a lack of optimism that
Wilson would “improve [his] way of thinking by participating,” but declined “to
suspend that program at this point on this record.” Id.Wilson argues this condition should be vacated due to the district court’s
skepticism about its efficacy, because “incapacitation[] and not rehabilitation is the
law in this case,” Resp. at 54, and because he can only successfully complete the
program by admitting his guilt. We disagree.
The district court’s skepticism that the condition might be effective in
Wilson’s case does not support a viable argument that the district court abused its
discretion by ordering Wilson to participate. Wilson’s law-of-the-case reference is
misplaced because the district court had not previously ruled on whether Wilson
should participate in behavioral modification therapy. Cf. United States v. Miller,
891 F.3d 1220, 1241 (10th Cir. 2018) (“The law of the case doctrine posits that when
a court decides upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.” (internal quotation marks omitted)).
And Wilson’s suggestion that he will be forced to admit his guilt in the program is
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speculative and premature. When and if the government attempts to impose
sanctions for Wilson’s failure to participate in the program by failing to admit his
guilt, Wilson can raise the issue as a defense to the government’s enforcement action.
See United States v. Richards, 958 F.3d 961, 968 (10th Cir.) (“If, at a later date, the
Government . . . threatens to revoke Defendant’s supervised release based on his
valid invocation of his privilege against self-incrimination . . . Defendant may raise a
Fifth Amendment challenge at that time.”), cert. denied, 141 S. Ct. 861 (2020).
4. Legality of the New 46-Month Term of Supervised Release
Wilson contends the district court should have given him “credit for the
approximate 16 months that he was on supervised release after he was originally
released from prison, yielding in his view a maximum allowable term of supervised
release of 34 months.” Anders Br. at 14. The statutes for the offense that resulted in
the original term of supervised released authorized the district court to impose the 60-
month term of supervised release that it ordered at Wilson’s original sentencing. See
18 U.S.C. §§ 3583(b)(1) (authorizing a five-year term of supervised release for “a
Class A or Class B felony”), 3559(a)(2) (classifying crimes with maximum sentences
of 25 years or more as Class B felonies), 1344 (providing a maximum sentence of
30 years for bank fraud). Upon revocation of that initial term of supervised release,
§ 3583(h) authorized the district court to impose a new term of supervised release
equal to “the term of supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less any term of imprisonment that
was imposed upon revocation of supervised release.” Because the district court
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ordered Wilson to serve a ten-month revocation sentence, it could impose a new term
of supervised release of up to 50 months. See § 3583(h); see also United States v.
Hill, 831 F. App’x 407, 412 (10th Cir. 2020) (“[W]e hold that § 3583 does not
require district courts to aggregate supervised release terms and that it permits courts
upon revocation to restart the clock on the maximum supervised release term allowed
under § 3583(b). Every other circuit that has addressed this issue has reached the
same conclusion.”).1 Thus, the 46-month term it imposed does not violate § 3583.
5. Wilson’s Motions to Dismiss and to Set Aside the Judgment Due to
Vindictive Prosecution
Although he had counsel at the time, Wilson filed a pro se motion to dismiss
the revocation proceeding as an improper vindictive prosecution and later filed a
pro se motion to set aside the district court’s judgment for the same reason. The
district court struck the first motion at the revocation hearing. It noted Wilson could
not “have it both ways,” to proceed with counsel in the revocation proceeding but at
the same time represent himself on the motion to dismiss. No. 21-1099, R., vol. IV
at 112. And because Wilson elected to proceed with counsel who did not pursue the
vindictive prosecution claim,2 the district court struck the motion. It reasoned Wilson
1
We cite this case only for its persuasive value. See Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
2
The district court ordered the government and Wilson’s counsel to respond to
Wilson’s pro se motion to dismiss. In Wilson’s counsel’s response, she
“incorporate[d] most of the factual allegations set forth on pages 1-3” of Wilson’s
pro se motion and “supplement[ed] [it] with additional information,” but stopped
short of adopting it. No. 21-1099, R., vol. I at 206–09.
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was “not entitled to sort of put a red light and a green light up as [he] wish[ed] to
stop and start self-representation so that [he could] do an end run around the court
rules with regard to the attorney-client representation.” Id. at 113. But it invited
Wilson’s counsel to file a motion to set aside the judgment due to vindictive
prosecution. She did not, and the district court denied Wilson’s pro se motion to set
aside the judgment “because [Wilson was] represented by counsel who did not sign
[it],” id., vol. II at 55. Wilson argues the district court “should have heard the
vindictive prosecution claim regardless as to who filed the motion since there were
serious constitutional violations raised in said motion.” Resp. at 71.
Defendants do not have a constitutional right to a “hybrid form of
representation,” representing themselves in some aspects of their case and employing
counsel for other aspects. United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir.
1995). Represented defendants therefore have “no right to submit motions other than
through [their] attorney.” United States v. Dunbar, 718 F.3d 1268, 1278 (10th Cir.
2013). We see no error in the district court’s rejection of Wilson’s pro se motions.
B. Additional Possible Issues on Appeal Discussed in Wilson’s Pro Se Response
Wilson’s pro se response to his counsel’s Anders brief includes myriad
additional issues Wilson seeks to raise on appeal. Wilson did not raise these issues
before the district court, so this court would apply the plain-error standard of review.
See Perez-Perez, 992 F.3d at 974. “Under plain-error review, the defendant must
establish that (1) the district court committed error; (2) the error was plain—that is, it
was obvious under current well-settled law; (3) the error affected the defendant’s
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substantial rights; and (4) the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Id. (brackets and internal quotation marks
omitted). We address below the possible issues we glean from Wilson’s pro se
response and explain why there is no colorable argument they support reversal under
the plain-error standard of review.
1. Vagueness of the Conditions of Release
Wilson argues that his probation officer’s request that he “complete a release
of information . . . for all financial accounts [Wilson] had in the last five years,”
No. 21-1099, R., vol. IV at 32, was too vague to support a violation of his condition
of release that required him to provide access to requested financial information.
Specifically, he argues that he lacked fair notice that his credit card and bank
accounts would be considered “financial accounts.”
Supervised release conditions “must be written so that ordinary people can
understand” what is required. United States v. Llantada, 815 F.3d 679, 683
(10th Cir. 2016); see also Grayned v. City of Rockford, 408 U.S. 104, 108
(1972) (“[W]e insist that laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.”). Because a
person of ordinary intelligence would understand that “financial accounts” include
bank and credit card accounts, we reject Wilson’s vagueness argument.
Wilson similarly argues that the condition of his release proscribing
association with felons was too vague because the term “associate” is vague. But we
rejected a similar plain error challenge in Munoz, noting that “neither the Supreme
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Court nor our court has ever invalidated this condition (or any similar condition) on
vagueness grounds.” 812 F.3d at 817. We see no reason the result would differ here.
Wilson also argues the district court’s ruling that he failed to submit truthful
and complete monthly reports should be vacated because he “lacked fair warning that
he was requi[r]ed to report senior bus tokens, food bank assistance, food stamps, and
rental assistance as income that should have been reported on his monthly reports.”
Resp. at 34. Even assuming Wilson lacked fair notice that he had to report these
items, we have already explained that his failure to report other items, such as the
wire transfers from McMillan, supports the district court’s conclusion that he failed
to submit truthful and complete monthly reports.
2. Admission of Wilson’s Unwarned Statements
The government submitted, and the district court admitted into evidence,
emails between Wilson and his probation officer. Wilson argues that because his
probation officer did not provide him with a Miranda warning before the email
exchange, its admission into evidence violated his Fifth Amendment right to be free
from self-incrimination.
The Supreme Court has observed that the privilege against compelled
self-incrimination is not available to a probationer in a revocation proceeding,
because a probation-revocation proceeding is not a criminal proceeding. Minnesota
v. Murphy, 465 U.S. 420, 435 n.7 (1984). We have noted that like
probation-revocation proceedings, “[t]he full panoply of rights due a defendant in a
criminal prosecution does not apply to revocation hearings for . . . supervised
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release.” United States v. Cordova, 461 F.3d 1184, 1187 (10th Cir. 2006) (internal
quotation marks omitted). And other circuits have held that a proceeding to revoke
supervised release is “not a criminal case for purposes of the Fifth Amendment right
against self-incrimination.” United States v. Hulen, 879 F.3d 1015, 1020 (9th Cir.
2018); see also United States v. Riley, 920 F.3d 200, 209 (4th Cir. 2019) (holding
“that because supervised release revocation proceedings are not criminal
proceedings, the introduction of unwarned admissions made by [the defendant] to his
probation officer did not violate [the defendant’s] rights under the Self-Incrimination
Clause of the Fifth Amendment”). The district court did not clearly err by admitting
the emails into evidence.
3. Procedural Reasonableness of the Revocation Sentence
Wilson argues the district court’s imposition of the revocation sentence was
procedurally unreasonable because the court did not explain the sentence,
acknowledge his arguments, or consider the 18 U.S.C. § 3553(a) factors.
The revocation sentence imposed by the district court was within the
Sentencing Guidelines range. In such circumstances, only a “minimum level of detail
[is] required to establish the procedural reasonableness” of a sentence. United States
v. Henson, 9 F.4th 1258, 1291 (10th Cir. 2021), petition for cert. filed (U.S. Dec. 28,
2021) (No. 21-6736). “[W]e have made it quite clear that the sentencing court is not
required to consider individually each factor listed in § 3553(a) before issuing a
sentence.” United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004). “Rather, it
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is enough if the district court considers § 3553(a) en masse and states its reasons for
imposing a given sentence.” Id.
Here, the district court explained why it imposed a revocation sentence at the
high end of the Guidelines range:
[W]hat you are really trying to do is that you want to set the rules about
what you are going to do on probation. I think you’ve acted with
defiance and disrespect to the Court and that you’re playing fast and
loose with what rules you will abide by and which rules you won’t abide
by.
And so I don’t really see any point on continuing you on home
detention and allowing you to keep doing what you have been
doing. . . .
....
The Court believes that the sentence which I have just announced
is sufficient, but not greater than necessary, to meet all of the relevant
factors of sentencing, and I have taken into account all of the factors
enumerated in 18 United States Code Section 3553(a) and 18 United
States Code Section 3583(d) based on the nature and circumstances of
the offense, [and] your own personal history and characteristics,
including your medical conditions.
No. 21-1099, R., vol. IV at 163, 172. This explanation addressed most of Wilson’s
arguments for leniency, which were grounded in § 3553(a). And the district court
acknowledged Wilson’s remaining arguments for leniency elsewhere. See id. at 142
(acknowledging Wilson’s argument that he was “not a danger to the community,” “in
terms of violen[ce]”); id. at 163 (acknowledging Wilson’s argument that the
revocation petition stemmed from “a power struggle between” Wilson and his
probation officer). The district court satisfied its obligation to impose a procedurally
reasonable sentence.
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4. Multiplicity of Revocation Charges
Wilson argues his revocation sentence should be vacated due to the
multiplicity of the revocation charges underlying it. “Multiplicity refers to multiple
counts of an indictment which cover the same criminal behavior.” United States v.
Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (internal quotation marks omitted).
“[M]ultiplicity is not fatal to an indictment.” Id. (internal quotation marks omitted).
Indeed, “[t]he government may submit multiplicitous charges to the jury.” United
States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005). But “multiplicitous sentences
violate the Double Jeopardy Clause” “because they allow multiple punishments for a
single criminal offense.” United States v. McCullough, 457 F.3d 1150, 1162
(10th Cir. 2006) (internal quotation marks omitted).
Wilson’s argument misses the mark because post-revocation sanctions are
“part of the penalty for the initial offense”; they are not punishment for the offenses
that trigger the revocation, Johnson v. United States, 529 U.S. 694, 700 (2000).
Thus, regardless of whether the revocation charges were multiplicitous, they did not
give rise to a sentence that violates the Double Jeopardy Clause.
5. Government Misconduct
a. Delay in Bringing Charges
Wilson argues the government unreasonably delayed in bringing charges
against him for submitting inaccurate cash-flow statements in January and February
2020. He cites a Fourth Circuit case for the proposition that “[a]fter an unreasonable
time, violations of which the state is aware become stale or are waived as a basis for
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revoking probation.” Farabee v. Clarke, 967 F.3d 380, 393 (4th Cir. 2020). But
“cases considering due process claims for revocation proceedings have held that
relief is not called for unless there was both unreasonable delay and prejudice.”
United States v. Santana, 526 F.3d 1257, 1260 (9th Cir. 2008). Wilson has not
shown either.
The government sought revocation on October 5, 2020. Wilson cites no
evidence indicating that the government knew his cash-flow statements were
inaccurate before August 24, 2020, or any authority indicating the government’s brief
delay in bringing charges was unreasonable. Cf. Farabee, 967 F.3d at 393 (finding
delay of “over a decade” unreasonable). And while he argues the delay prejudiced
him because it prevented him from calling Pilcher as a witness or obtaining relevant
bank records, he provides no evidence or rationale to support either claim.
b. Sentence Manipulation
Wilson argues the government added count 1, which alleged Wilson violated
18 U.S.C. § 1001, to the revocation petition “to increase and maximize Wilson’s
punishment [in retaliation] for exposing the [probation officer’s] fraud and his
unlawful [directive to participate in therapy].” Resp. at 40. He therefore asserts
count 1 should have been dismissed as an improper sentence manipulation.
This court has stated that “sentencing factor manipulation” claims “should be
analyzed under our established outrageous conduct standard.” United States v.
Lacey, 86 F.3d 956, 963 (10th Cir. 1996) (internal quotation marks omitted). Under
that standard, “the relevant inquiry is whether, considering the totality of the
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circumstances[,] . . . the government’s conduct is so shocking, outrageous and
intolerable that it offends the universal sense of justice.” Id. at 964 (internal
quotation marks omitted).
As noted above, the district court did not clearly err in finding Wilson violated
§ 1001. The government’s election to bring a revocation charge based on this crime
did not offend the universal sense of justice.
c. Failure to Disclose Exculpatory Evidence
Wilson argues the government violated his due process rights by suppressing
exculpatory evidence. “Due process requires the government to disclose ‘evidence
favorable to an accused upon request where the evidence is material either to guilt or
to punishment.’” United States v. Muhtorov, 20 F.4th 558, 623 (10th Cir. 2021)
(ellipsis omitted) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). “To
establish a Brady violation, a defendant must demonstrate that (1) the prosecution
suppressed evidence; (2) the evidence was favorable to the accused; and (3) the
evidence was material to the defense.” Id. (internal quotation marks omitted).
Wilson’s first allegation of evidence suppression relates to the probation
officer’s and prosecutor’s supposed failure to disclose to the court that documents
evincing Wilson’s correspondence with Pilcher’s attorneys did not show Wilson had
directly communicated with Pilcher. But no one represented to the court that the
documents showed a direct communication between Wilson and Pilcher. The
probation officer instead testified the documents included “email correspondence . . .
between Mr. Wilson and people that . . . Mr. Pilcher was in communication with.”
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No. 21-1099, R., vol. IV at 39. And Wilson’s attorney cross-examined the probation
officer regarding these documents. See id. at 68–71. A prosecutor does not suppress
evidence by failing to highlight what proffered evidence does not show.
Wilson also alleges the government suppressed impeachment evidence related
to Pilcher’s former assistant. Wilson specifically alleges the government failed to
disclose the former assistant was a prisoner and a drug dealer. The former assistant
did not testify; instead, the probation officer testified about information she provided
to him during his investigation. And on cross-examination Wilson’s attorney asked
the probation officer if he knew that the former assistant was a convicted felon. The
probation officer affirmed to the court that she was. The record therefore belies
Wilson’s claim of suppression.
d. Presentation of Prejudicial Evidence
Wilson argues the prosecutor engaged in misconduct by presenting prejudicial
evidence that (1) he did not sign the January 2020 cash-flow report he submitted to
his probation officer, and (2) he did not report approximately $1,800 in wire transfers
he received in January 2020 on the report. This evidence is probative of the
allegation that Wilson failed to provide truthful and complete written reports to his
probation officer each month. The prosecutor’s introduction of this evidence does
not support reversal.
e. Use of Perjured Testimony
Wilson asserts that the probation officer provided perjured testimony regarding
the fact that when he reviewed Wilson’s cell phone history, it showed calls to
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MoneyGram, the company that facilitated McMillan’s wire transfers to Wilson. But
Wilson provides no evidence to support this allegation.
6. Judicial Misconduct
a. Delegation of the Judicial Function to the Probation Officer
Wilson argues the district court improperly delegated its judicial function to a
non-judicial officer in violation of Article III by soliciting the probation officer’s
views and by imposing the punishment recommended by the probation officer. But
“the probation officer serves as an investigative and supervisory arm of the court.”
United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (brackets and internal
quotation marks omitted). In that regard, “the probation officer serves as a liaison
between the sentencing court, which has supervisory power over the defendant’s term
of supervised release, and the defendant, who must comply with the conditions of his
supervised release or run the risk of revocation.” Id. at 1306–07. Under this
arrangement, “no improper delegation of judicial power occurs.” Id. at 1307. Thus,
the district court did not err by considering and ultimately adopting the probation
officer’s recommendation regarding punishment.
b. Judicial Bias
Wilson argues he did not receive a fair revocation hearing due to judicial bias.
“To demonstrate a violation of due process because of judicial bias, a claimant must
show either actual bias or an appearance of bias.” United States v. Scott, 529 F.3d
1290, 1297 (10th Cir. 2008) (internal quotation marks omitted). “Judicial rulings
alone are almost always insufficient to establish bias, as are mere speculation,
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beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters.”
Leatherwood v. Allbaugh, 861 F.3d 1034, 1050 (10th Cir. 2017) (citation and internal
quotation marks omitted).
Wilson largely bases his bias arguments on the trial judge’s rulings against
him, which does not suffice. He also points to the judge’s use of the plural pronouns
“we” and “us” in her rulings. Wilson speculates from these pronouns that the judge
“was acting as a co-prosecutor.” Resp. at 73. Such speculation establishes neither
actual judicial bias nor an appearance of bias.
III. Appeal No. 21-1150
None of Wilson’s appellate filings address the district court’s denial of his
motion to modify his prison sentence, which Wilson has already served. He has
therefore waived any challenge to the prison sentence. See Platt v. Winnebago
Indus., Inc., 960 F.3d 1264, 1271 (10th Cir. 2020) (“[F]ailure to raise an issue in
an opening brief waives that issue . . . .” (internal quotation marks omitted)).3
IV. Conclusion
In No. 21-1099, we grant counsel’s motion to withdraw and dismiss the appeal
as frivolous.
3
We also note that because Wilson’s motion sought to serve his prison
sentence at home and he has completed his sentence, any preserved challenge to the
district court’s denial would be moot.
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In No. 21-1150, we affirm the district court’s order denying Wilson’s motion
to modify his sentence.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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