United States v. Jones

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS August 18, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 08-5183
v. (D.C. No. 06-CR-00143-JHP-1)
(N.D. Okla.)
LARRY DARRELL JONES,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **

Defendant-Appellant Larry Darrell Jones appeals from the revocation of his

supervised release and imposition of an 11-month term of imprisonment followed

by 25 months’ supervised release. Mr. Jones’ appellate counsel has filed a

motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Mr. Jones was served with a copy of the Anders brief and did not file a

*
This order and judgment is not binding precedent, except under the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.
**
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 cause is therefore ordered submitted without oral argument.
response. Aplt. Br. 10; see 10th Cir. R. 46.4(B)(2). Our jurisdiction arises under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we dismiss the appeal finding no

meritorious issues. We also grant counsel’s motion to withdraw.

On June 18, 2007, Mr. Jones was sentenced to 24 months’ imprisonment

followed by three years of supervised release, having pled guilty to one count of

felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). 1 R. Doc. 16. Mr. Jones had completed his term of imprisonment on

May 27, 2007, and was ultimately released on June 27, 2008. 1 R. Doc. 19 at 1

n.1. On July 28, 2008, the Probation Office filed an Order on Supervised

Release, alleging that Mr. Jones failed to report to the probation office within 72

hours of his release from the Bureau of Prisons. 1 R. Doc. 19. Mr. Jones

stipulated to this violation, and the district court continued sentencing for 60 days

and released him back into the community. 1 R. Doc. 32; 2 R. at 9, 15-19. On

October 23, 2008, the Probation Office filed a second Order on Supervised

Release, alleging Mr. Jones was in violation of his conditions of release by testing

positive for use of a controlled substance on three separate occasions, and failing

to appear for urine testing. 1 R. Doc. 33. Mr. Jones admitted to being in

violation of these conditions, and the district court revoked his term of supervised

release and sentenced him based upon a Guideline range of 5-11 months, given a

criminal history category of III and a Grade C violation. See U.S.S.G. §§

7B1.1(a)(3) (Grade C violation), 7B1.3(a)(2) (court may revoke or extend

-2-
supervised release), 7B1.4(a) (range); 1 R. Doc. 41; 2 R. at 22-24, 28-29. Mr.

Jones subsequently appealed. 1 R. Doc. 43.

When counsel submits an Anders brief accompanied by a motion to

withdraw, we “conduct a full examination of the record to determine whether

defendant’s claims are wholly frivolous.” United States v. Calderon, 428 F.3d

928, 930 (10th Cir. 2005). After reviewing the record, we agree with counsel’s

assessment that no potential meritorious issues exist on appeal; nothing suggests

that the district court abused its discretion. See United States v. McAfee, 998

F.2d 835, 837 (10th Cir. 1993).

The record indicates that Mr. Jones’ stipulations to his violations of the

conditions of release were knowing and voluntary. He was informed of his right

to a hearing, and advised of the potential sentence that could result from a

revocation of his supervised release. 2 R. at 22-24. Therefore, the district court

properly accepted Mr. Jones’ stipulations. Nothing suggests that the imposition

of the sentence was procedurally unreasonable, and given a Guidelines sentence,

it is presumptively reasonable. Rita v. United States, 551 U.S. 338, 347 (2007);

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). Furthermore, the

district court adequately considered the applicable factors in 18 U.S.C. § 3553(a)

and the policy statements and, in light of the repeated violations, imposed a

substantively reasonable sentence. 2 R. at 30-31.

-3-
 Accordingly, we DISMISS the appeal and GRANT counsel’s motion to

withdraw.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

-4-