FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 31, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 14-2038
(D.C. No. 1:99-CR-00505-JCH-1)
BRYAN KEITH SMITH, (D. N.M.)
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
The district court found Appellant Bryan Keith Smith violated the
conditions of his five-year term of supervised release and sentenced him to nine
*
This order and judgment is not binding precedent except under the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.
months’ imprisonment with no supervised release to follow. Mr. Smith appeals
revocation of his supervised release and imposition of imprisonment; however,
his attorney has filed an Anders brief and a request to withdraw as counsel, which
we treat as a motion to withdraw. See Anders v. California, 386 U.S. 738, 744
(1967). For the reasons set forth hereafter, we grant counsel’s motion to
withdraw and dismiss this appeal. Id.
I. Background
On May 1, 2000, Mr. Smith pled guilty to one count of a crime on an
Indian Reservation involving aggravated sexual abuse of a child, in violation of
18 U.S.C. §§ 1153, 2241(c), 2246(2)(A), and one count of a crime on an Indian
Reservation involving aggravated sexual abuse by force, in violation of 18 U.S.C.
§§ 1153, 2241(a), and 2246(2)(A). 1 He received a sentence of 120 months’
imprisonment and five years’ supervised release. In May 2009, Mr. Smith began
serving his supervised release. Thereafter, four petitions for revocation of his
1
While Mr. Smith’s counsel references documents to support the certain
facts in his brief on Mr. Smith’s prior conviction, initial sentence, and hearings
for revocation, he failed to provide those documents in the record designated for
appeal. Generally, “[w]hen the party asserting an issue fails to provide a record
sufficient for considering that issue, [this] court may decline to consider it.” 10th
Cir. R. 10.3(B). However, in this case, the absence of the record does not affect
our disposition of Mr. Smith’s appeal. This is because we assume his appellate
counsel’s representations with respect to the contents of those documents are
accurate, especially in the absence of any objections by either the government or
Mr. Smith as to those representations. Nevertheless, counsel is reminded that in
any future filing, any relied on and referenced portion of the record should be
designated and provided as part of the appeal record for our review.
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supervised release were filed and disposed of before the petition which is the
subject of this appeal. 2 On January 14, 2014, the government filed the instant
petition for revocation of supervised release, alleging Mr. Smith violated the
terms of his supervised release based on his termination from the Diersen
Charities Halfway House (halfway house) for his acts in falsely signing out for
medical appointments on November 21, 2013; November 25, 2013; December 18,
2013; and January 10, 2014.
On February 25, 2014, the district court held a hearing on the government’s
petition to revoke Mr. Smith’s supervised release based on these violations. Mr.
Smith’s probation officer testified that, with respect to the four separate occasions
alleged in the petition, Mr. Smith signed out of the halfway house for medical
appointments but failed to provide its staff with the required documentation
establishing such appointments occurred, and, after the halfway house staff issued
a medical release, the two medical providers Mr. Smith claimed to have visited on
these dates told such staff Mr. Smith had not been at their medical offices on the
2
According to Mr. Smith’s counsel, these petitions were dated, alleged,
and disposed of as follows: 1) August 9, 2010 petition for revocation for using
illegal substances and failing to attend outpatient treatment, resulting in a
sentence of time served and a four-year term of supervised release; 2) October 19,
2010 petition for revocation for failing to remain at a reintegration reentry center,
resulting in a nine-month sentence and four-year term of supervised release; 3)
October 12, 2011 petition for revocation for failing to attend sex offender
treatment, resulting in a nine-month sentence and three-year term of supervised
release; and 4) March 26, 2013 petition for revocation for absconding from the
Diersen Charities Halfway House, resulting in a six-month sentence followed by a
one-year term of supervised release.
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dates indicated. She further testified that the halfway house terminated Mr.
Smith’s residency based on these violations. She also testified this was Mr.
Smith’s fifth revocation hearing. Mr. Smith testified on his own behalf, claiming
he did in fact attend medical appointments on the dates provided, gave the facility
the necessary documentation, and even called his probation officer on two
occasions to indicate he would be late returning to the halfway house after his
medical appointments. However, the probation officer, on questioning by the
district court, provided testimony the halfway house had a process to contest
incident reports or disciplinary actions and that Mr. Smith failed to avail himself
of such process.
The district court found Mr. Smith violated the terms of his supervised
release by failing to reside at and complete the program at a residential reentry
center, as shown by his termination from the halfway house. It noted that in
terminating his residency, the halfway house staff contacted the named medical
providers and confirmed he did not have appointments on the dates in question. It
also pointed out Mr. Smith failed to contest such findings through the procedures
available to him. In imposing a nine-month sentence and no supervised release,
the district court noted the advisory United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) range was three to nine months and it was
sentencing him at the high end of that range, given Mr. Smith not only violated
the terms of his supervised release but had multiple prior violations and continued
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“to fail to take advantage of reintegration efforts and resources of the United
States Probation Office.”
II. Discussion
After Mr. Smith filed a timely notice of appeal, his appointed counsel, who
also represented him at the revocation hearing, filed an Anders appeal brief
explaining that, after a diligent examination of the record on appeal, no issues or
arguable or viable claims exist relating to Mr. Smith’s conviction or sentence
which would warrant an appeal. See Anders, 386 U.S. at 744. In support, counsel
points out the district court considered both parties’ evidence and, based on such
evidence, determined Mr. Smith violated his supervised release by falsely signing
out for medical appointments and imposed a sentence within the applicable
Guidelines range.
Pursuant to Anders, this court gave Mr. Smith an opportunity to respond to
his counsel’s Anders brief. See id. On July 28, 2014, Mr. Smith filed a response,
in the form of a one-page letter, which fails to address the issues related to his
appeal but, instead, claims ineffective assistance of counsel and requests a thirty-
day extension and appointment of new counsel, without adequate reasoning in
support thereof. Thereafter, the government filed a notice of its intention not to
file an answer brief in this appeal.
As required by Anders, we have conducted a full examination of the record
before us. See 386 U.S. at 744. In reviewing a sentence imposed after revocation
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of supervised release, we review the district court’s factual findings for clear
error and its legal conclusions de novo. See United States v. Tsosie, 376 F.3d
1210, 1217-18 (10th Cir. 2004). Our appellate review for reasonableness is under
a deferential abuse of discretion standard. See United States v. Ruby, 706 F.3d
1221, 1225 (10th Cir. 2013). We will not reverse a sentence following revocation
of supervised release if the record establishes the sentence is “reasoned and
reasonable.” United States v. Contreras-Martinez, 409 F.3d. 1236, 1241 (10th
Cir. 2005). A “reasoned” sentence is one that is “procedurally reasonable,” while
a “reasonable” sentence is one that is “substantively reasonable.” United States v.
McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). “[A]lthough a district court must
provide reasoning sufficient to support the chosen variance [of an above-
Guidelines sentence], it need not necessarily provide ‘extraordinary’ facts to
justify any statutorily permissible sentencing variance.” United States v. Smart,
518 F.3d 800, 807 (10th Cir. 2008).
Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when
a person violates the conditions of supervised release, the district court may
modify the conditions of release or revoke the term of supervised release and
impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.
2004); 18 U.S.C. § 3583(e)(2) and (3); Fed. R. Crim. P. 32.1(b); U.S.S.G.
§ 7B1.3(a). “The court may, after considering the factors set forth in”
§ 3553(a)(1)-(7), “revoke a term of supervised release and require the defendant
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to serve in prison all or part of the term of supervised release authorized by
statute for the offense ....” 18 U.S.C. § 3583(e)(3).
In this case, it is undisputed the advisory Guidelines range for Mr. Smith,
after revocation of his supervised release, was three to nine months’
imprisonment, and the district court considered this when imposing his sentence.
See U.S.S.G. §§ 7B1.3(a)-(b) and 7B1.4(a). It is clear the district court credited
the government’s evidence Mr. Smith violated the conditions of his supervised
release when he was terminated from the halfway house. It further found this
termination resulted from his falsely claiming on four different occasions that he
left the facility for medical appointments, as verified by the very medical
providers he claimed to have visited. The district court also pointed out this was
the fifth revocation of Mr. Smith’s supervised release and that he continued to fail
to take advantage of reintegration efforts and resources afforded him. Such
evidence is sufficient to support the alleged violation of the conditions of his
supervised release, revocation of his supervised release based on such a violation,
and imposition of a sentence. We further note his sentence is within the advisory
Guidelines range and therefore presumptively reasonable. See McBride, 633 F.3d
at 1232-33. In sentencing Mr. Smith, it is also evident the district court
discredited Mr. Smith’s unsupported, self-serving testimony he attended the
medical appointments at issue. We leave such credibility determinations to the
district court’s discretion.
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Under the circumstances presented, we conclude the district court’s
revocation of Mr. Smiths’s one-year term of supervised release and imposition of
a nine-month term of imprisonment without further supervised release are both
“reasoned and reasonable,” especially in light of the fact Mr. Smith has not
offered any nonfrivolous reason warranting a lower sentence. Finally, we decline
to review his ineffective assistance of counsel claim, as we have held such claims
should be brought in collateral proceedings, and not on direct appeal, and
therefore are “presumptively dismissible.” United States v. Calderon, 428 F.3d
928, 931 (10th Cir. 2005). Not only should such claims be brought in a collateral
proceeding, but Mr. Smith’s ineffective assistance claim, as presented on appeal,
is inadequately developed for review by this court. See United States v.
Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005). We further note a request
for a new attorney based on counsel’s filing of an Anders brief is insufficient to
support appointment of new counsel. Id. at n.6.
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we
GRANT counsel’s motion to withdraw and DISMISS Mr. Smith’s appeal. We
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further DENY Mr. Smith’s pro se request for a thirty-day extension and
appointment of new counsel.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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