FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 10, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-1356
v. (D.C. No. 02-CR-105-WYD-2)
(D. Colo.)
JEREMIE JOE PHILLIPS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
Jeremie Joe Phillips appeals the district court’s order revoking his
supervised release and committing him to the custody of the Bureau of Prisons for
a term of eleven months. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), advising us that he discerns no colorable basis
for the appeal, and seeking leave to withdraw. After careful review and for the
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent except under the doctrines of law of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.
reasons we describe below, we grant the attorney’s motion to withdraw and
dismiss this appeal.
***
In 2003, Mr. Phillips pled guilty to distributing fifty grams or more of
methamphetamine and to aiding and abetting such distribution. See 21 U.S.C.
§ 841(a)(1); 18 U.S.C. § 2. The district court sentenced him to eighty-one
months’ imprisonment followed by a five-year term of supervised release. After
Mr. Phillips was released from prison in January 2007, the district court modified
the terms of his supervised release to require him to abstain from the use of
alcohol and other intoxicants and to participate in a program of testing and
treatment for alcohol abuse.
In September 2008, the district court found that Mr. Phillips had committed
eleven separate violations of the terms of his release. Through counsel, Mr.
Phillips admitted to these violations, which included repeated use of alcohol,
failure to comply with his treatment obligations, and the possession of a
controlled substance. The law requires the district court to revoke supervised
release and impose imprisonment when a defendant violates the terms of his
release by possessing a controlled substance. 18 U.S.C. § 3583(g). At the
sentencing hearing, the district court noted that Mr. Phillips’s record was “one of
the most disgusting records I’ve seen of noncompliance with supervised release.”
R., vol. II, at 5. The district court also explained that it believed Mr. Phillips
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“really [does not] have the desire to comply with the Court’s orders.” Id. The
district court therefore revoked Mr. Phillips’s supervised release and sentenced
him to eleven months’ imprisonment—the upper end of the range suggested by
the United States Sentencing Guidelines—to be followed by an additional term of
supervised release lasting forty-eight months. Mr. Phillips appeals.
Mr. Phillips’s lawyer, the Federal Public Defender, filed a brief pursuant to
the rule in Anders. Anders authorizes a defendant’s lawyer to seek permission to
withdraw from an appeal if, “after a conscientious examination,” the lawyer finds
the appeal “wholly frivolous.” 386 U.S. at 744. Invoking Anders requires the
lawyer to “submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record.” United States v. Calderon, 428
F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). The client may
then submit his own arguments for the court’s consideration. Id. We must then
“conduct a full examination of the record to determine whether the defendant’s
claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to
withdraw and dismiss the appeal. Id.
According to the Anders brief before us, the defendant might object that the
district court should have permitted him to enter alcohol treatment instead of
prison, after crediting him with time served, and that the court’s failure to do this
renders its sentence unreasonable. The Anders brief asserts that this argument is
frivolous, however, and we agree. A proper sentence must be both procedurally
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and substantively reasonable. United States v. Algarate-Valencia, 550 F.3d 1238,
1242 (10th Cir. 2008). Procedural reasonableness requires that the district court
properly calculate the advisory guidelines range, and then consider what sentence
to impose in light of both the guidelines’ recommendation and the factors
enumerated in 18 U.S.C. § 3553(a). Id. at 1242-44. The district court need not
explicitly describe each factor or address each argument presented to it, so long
as it “somehow indicate[s] that [it] did not rest on the guidelines alone.” Id. at
1244. Here there is no allegation that the guidelines range was incorrectly
calculated or that the district court failed to consider the statutory factors; indeed,
the district court explicitly noted its consideration of § 3553(a)’s requirements at
the sentencing hearing. R., vol. II, at 10.
Neither could there be any colorable argument that this within-guidelines
sentence is substantively unreasonable. The district court concluded that Mr.
Phillips’s unusually high number of violations within such a short time—in the
first eighteen months of his release—warranted a sentence at the upper end of the
guidelines. This was certainly not an abuse of the district court’s considerable
discretion. See United States v. Todd, 515 F.3d 1128, 1134-35 (10th Cir. 2008). 1
1
We have also reviewed the forty-eight-month term of supervised release
imposed by the district court following Mr. Phillips’s incarceration. This term
was within a properly-calculated guidelines range, see U.S.S.G. §7B1.3(g)(2), and
adequately explained by the district court. It was therefore procedurally
reasonable. Neither can we discern any basis in the record for questioning the
substantive reasonableness of the length of the term the district court imposed.
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For his part, Mr. Phillips submitted a letter raising an additional claim that
his lawyer was constitutionally ineffective. Except in extraordinary
circumstances, claims of ineffective assistance of counsel should be brought on
collateral review rather than direct appeal. United States v. Brooks, 438 F.3d
1231, 1242 (10th Cir. 2006); see also United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995) (en banc) (“[Ineffective assistance] claims brought on
direct appeal are presumptively dismissible, and virtually all will be dismissed.”).
We have no indication on the record before us that this case presents a reason to
depart from the general rule.
After review of the record, we agree with Mr. Phillips’s lawyer that there is
no colorable basis for appealing the district court’s sentence. Accordingly, we
grant counsel’s motion to withdraw and dismiss this appeal.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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