FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 27, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-3266
v. (D. Kansas)
CALVIN WILLIAMS, (D.C. No. 98-CR-10072-WEB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and McCONNELL, 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.
Defendant and appellant Calvin L. Williams pled guilty on November 23,
1998, to possession with intent to distribute cocaine, and was sentenced to
seventy months’ imprisonment, followed by three years of supervised release. On
*
This order and judgment is not binding precedent except under the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.
February 28, 2005, the district court determined that Williams had violated the
terms of his supervised release and it revoked his supervision and sentenced him
to thirty months’ imprisonment, followed by eighteen months’ of supervised
release.
On May 23, 2007, a summons was issued to Williams, seeking his presence
at a hearing to modify the conditions of his supervised release. Williams,
however, failed to appear at the scheduled June 12, 2007, hearing. He claimed he
never received the summons and was therefore unaware that he needed to appear
in court, although, as explained below, the record does not support that claim.
See n.1, infra. A warrant was then issued for his arrest. 1
1
The district court described this sequence of events as follows:
On May 23, 2007, the court ordered that a summons be issued to the
defendant to appear and show cause why the conditions of his
supervised release should not be modified. The defendant was
served with the summons, . . . and he appeared before the Magistrate
Judge for an initial appearance on June 4, 2007. The defendant was
represented by appointed attorney Jon Womack. Defendant was told
to appear “as directed” before this court for a final hearing. On
June 7, 2007, the court issued notice electronically of a final hearing
on the petition, which was set for June 12, 2007. The electronic
notice was served on defendant’s counsel. The case was called on
June 12, 2007, for hearing, but the defendant failed to appear. Mr.
Womack informed the court that he had been unable to get a hold of
the defendant. Based on the defendant’s failure to appear, the court
issued a bench warrant for the defendant’s arrest. Defendant was
subsequently arrested on August 18, 2007, and the court scheduled a
revocation hearing for August 28, 2007.
Order at 1-2, R. Vol. I, doc. 74. The record supports those findings.
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A revocation hearing was ultimately held on August 28, 2007, at which
Williams was present. Prior to that hearing, the United States Probation Office
reported to the court that Williams had again violated the terms of his supervised
release, in that he failed to report to the probation office, he failed to submit to
drug tests on five occasions, and he failed to attend counseling sessions on four
occasions. The court asked if Williams wished to challenge those allegations.
After consulting with his attorney at the hearing, Williams admitted that he had
failed to report to the probation office, thereby violating that term of his
supervised release. Based on that concession, the court found that Williams had
violated his supervised release and revoked the term of imprisonment. The court
then made the following findings:
The highest grade of violation was C, Criminal History Category is
4. The tentative sentence is six months. There will be no further
terms of supervised release after he gets out of his six months.
The justification: The Court has considered the nature and
circumstances of the violations, the characteristics of the defendant,
and the sentencing objectives required by statute. The Court has also
considered the advisory, nonbinding, Chapter 7 policy statement
issued by the Sentencing Commission pursuant to 28 U.S.C. 99-
4(a)2.
The Court intends to revoke the defendant’s supervised
release, sentence him to six months confinement. The imposition of
supervised release previous is not authorized if the maximum term of
imprisonment is imposed.
R. Supp. Vol. I at 7-8.
Williams appointed counsel, Jon Womack, has filed an Anders brief and
moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).
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Williams has not filed a response, and the government has declined to file a brief.
We therefore base our conclusion on counsel’s brief and on our own review of the
record. Williams’ counsel represents that Williams believes his counsel
(Womack) was ineffective, and that his supervised release should be reinstated
because his due process rights under the Fifth Amendment were violated during
the revocation process and his Fourteenth Amendment rights were violated as a
result of that due process violation.
For the reasons set forth below, we agree with Womack that the record in
this case provides no nonfrivolous basis for an appeal, and we therefore grant his
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
appeals 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:
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). We agree with counsel that there is no
nonfrivolous issue related to the district court’s revocation of Williams’
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supervised release and imposition of a sentence in this case. We see no indication
of ineffective assistance of counsel, nor do we perceive any constitutional
violation in the revocation proceedings.
When a defendant violates a condition of supervised release, a district court
may revoke the term of supervised release and impose imprisonment. 18 U.S.C.
§ 3583(e)(3); United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). In
reviewing a sentence imposed after revocation of supervised release, we normally
review the district court’s findings of fact for clear error and its legal conclusions
de novo. Kelly, 359 F.3d at 1304; see also United States v. Telford, 405 F.3d
1159, 1161 (10th Cir. 2005) (“Although the Supreme Court’s decision in United
States v. Booker altered our standard of review for most sentencing cases, the
standard of review for cases where the defendant challenges revocation of [his]
supervised release remains the same.”). “[W]hen imposing a sentence for
violating the conditions of supervised release, the district court must consider the
policy statements in Chapter 7 of the Sentencing Guidelines.” Kelly, 359 F.3d at
1304-05. Additionally, the court is required to consider the factors provided in
§ 3553(a). The court in this case considered both of those. We will overturn a
sentence imposed as a result of a violation of supervised release only if it is
“plainly unreasonable.” Id. at 1304. There is no serious nonfrivolous argument
that the sentence in this case was plainly unreasonable, or that Williams’
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constitutional rights were violated in any way in the revocation of his supervised
release and the imposition of that sentence. 2
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
2
Williams received due process in the revocation proceeding. He was given
notice at the hearing of the charges against him, he was represented by his
attorney, he asked for and received time to consult with his attorney, and he
admitted he had violated the terms of his supervised release. Assuming,
arguendo, that any fragment of due process was left unattended in this case,
Williams clearly waived any right to such further due process. And, in any event,
his counsel failed to object to any claimed due process violation, so we would
review any claimed violation for plain error. There is no plain error here. See
United States v. Olano, 507 U.S. 725 (1993). The same conclusions and analysis
would apply equally to Williams’ entitlements under Fed. R. CIM. P. 32.1(b) —
i.e., he either received that to which he was entitled under the Rule, or waived
application of the Rule in certain parts; and, in any event, there was no objection
by counsel. Rather, Williams confessed to the violation in open court after
consulting with counsel, and, in a situation where, it is clear from the record that
the district court would have granted time if more time had been requested.
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