F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 2, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-3230
v. (D. Kansas)
TROY L. TILLER, (D.C. No. 00-CR-40030-RDR)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TACH A, Chief Circuit Judge, PO RFILIO and A ND ER SO N, Circuit
Judges.
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.
W hile on supervised release following his conviction for possession of
cocaine base with intent to distribute, defendant-appellant Troy L. Tiller was
*
This order and judgment is not binding precedent except under the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.
arrested and charged in state court with numerous crimes, including aggravated
robbery, auto theft and kidnaping. He was convicted in state court of aggravated
robbery and sentenced to 120 months’ imprisonment. Tiller stipulated to
violating the terms of his federal supervised release by committing the state
crimes. He was sentenced to twenty-four months’ imprisonment for violating his
supervised release, to be served consecutively to his 120-month state sentence.
He appeals the district court’s order determining that the sentences were to be
served consecutively. W e affirm.
Tiller’s appointed counsel, Assistant Federal Public Defender M arilyn
Trubey, has filed an Anders brief and moved to w ithdraw as counsel. See Anders
v. California, 386 U.S. 738 (1967). Tiller has not filed a response, and the
government has declined to file a brief. W e therefore base our conclusion on
counsel’s brief and on our own review of the record. For the reasons set forth
below, we agree with M s. Trubey that the record in this case provides no non-
frivolous basis for an appeal, and we therefore grant her motion to withdraw and
dismiss this appeal.
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] where counsel conscientiously examines a case and determines that any
appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930
(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel
to:
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submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The [c]ourt must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744).
W e agree with counsel that there is no nonfrivolous issue related to the
district court’s imposition of the sentence in this case. Tiller requested that his
sentence for violating his supervised release be served concurrently with his
sentence on the state crimes. He also requested that he be sentenced to time
already served in federal custody, a term of seventeen days. The district court
denied both requests. Counsel suggests that the only possible issue on appeal is
whether the district court’s imposition of a consecutive sentence is unreasonable.
“[W]e recently noted an ‘apparent incongruence in our precedent’ as to the
applicable standard of review when reviewing the imposition of consecutive
sentences. Specifically, it is unclear post-[United States v. ]Booker[, 543 U.S.
220 (2005] whether such decisions should be reviewed for reasonableness or for
an abuse of discretion.” U nited States v. Cordova, 461 F.3d 1184, 1188 (10th Cir.
2006) (quoting United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258 (10th
Cir. 2006)). However, it is clear in this case, as it was in Cordova, that, whatever
standard is employed, the district court did not abuse its discretion and the
sentence imposed “was both procedurally and substantively reasonable.” Id.
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“In imposing a sentence following revocation of supervised release, a
district court is required to consider both Chapter 7’s policy statements, as well as
a number of the factors provided in 18 U.S.C. § 3553(a).” Id. (citing United
States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); 18 U.S.C. §§ 3583(e),
3584(b)). 1 The § 3553(a) factors include:
[T]he nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence, protect the public, and provide the
defendant with needed educational or vocational training, medical
care or other correctional treatment in the m ost effective manner;
pertinent guidelines; pertinent policy statements; the need to avoid
unwanted sentence disparities; and the need to provide restitution.
United States v. Contreras-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).
The court, however, “is not required to consider individually each factor listed in
§ 3553(a),” nor must it “recite any magic w ords to show us that it fulfilled its
responsibility to be mindful of the factors that Congress has instructed it to
consider” before imposing a sentence. Rodriguez-Quintanilla, 442 F.3d at 1258-
59 (internal quotations omitted). The record in this case clearly reveals that the
district court adequately and fully addressed the relevant sentencing factors and
the sentence is reasonable.
1
Chapter 7 of the United States Sentencing Commission, Guidelines M anual
(“USSG”), includes policy statement §7B1.3(f) w hich states that:
Any term of supervised release imposed upon the revocation of . . .
supervised release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving, whether or
not the sentence of imprisonment being served resulted from the
conduct that is the basis of the revocation of . . . supervised release.
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For the foregoing reasons, we GRANT counsel’s motion to withdraw and
we DISM ISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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