FILED
United States Court of Appeals
Tenth Circuit
December 5, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-1141
v. (D.C. No. 1:13-CR-00503-RBJ-1)
(D.Colo.)
CRYSTAL RODRIGUEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. **
Defendant-Appellant Crystal Rodriguez appeals from the sentence imposed
upon violation of her supervised release. Ms. Rodriguez’s attorney filed a brief
and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We
dismiss the appeal and grant counsel’s motion to withdraw.
*
This order and judgment is not binding precedent, except under the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.
Background
Ms. Rodriguez pled guilty to conspiracy to possess methamphetamine with
intent to distribute and was sentenced to 70 months’ imprisonment followed by
four years’ supervised release. On July 1, 2013, her term of supervised release
began.
On January 22, 2014, Rodriguez was arrested and charged with violating
her supervised release. The government alleged four violations including failing
to participate in drug testing and failing to notify her probation officer of a
change of residence. 1 R. 7–8. The probation office calculated the applicable
sentencing range to be six to twelve months’ imprisonment and up to five years of
supervised release and recommended a sentence of six months’ imprisonment
followed by two years of supervised release. 2 R. 32. As special conditions of
supervised release, the probation office recommended Ms. Rodriguez complete a
substance abuse program, complete a mental health treatment program, and reside
in a residential reentry center for a period of up to 180 days. Id. at 33.
In a sentencing recommendation, the probation officer explained that
during Ms. Rodriguez’s brief time on supervised release, she “stopped providing
random urinalyses, failed to advise me of her residence, and eventually ceased
communication.” Id. The officer explained “it became challenging to build a
rapport and assist [Ms. Rodriguez] with re-entering the community” and that she
“often presents as guarded, which makes is [sic] difficult to determine her needs.”
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Id. The probation officer believed the residential reentry center would “provide
structure, treatment, and a place to stay until [Ms. Rodriguez] is able to become
self sufficient.” Id. Ms. Rodriguez did not object to any of the report.
At the April 8, 2014 sentencing hearing, Ms. Rodriguez admitted to the
violations and was sentenced in accordance with the probation office’s
recommendations. 1 R. 29. Ms. Rodriguez did not object to the sentence. The
district court entered judgment and Ms. Rodriguez filed a timely notice of appeal.
Discussion
In Anders, the Supreme Court explained that if appointed counsel “finds his
case to be wholly frivolous, after a conscientious examination of it, he should so
advise the court and request permission to withdraw.” 386 U.S. at 744. Ms.
Rodriguez’s counsel has done so. Aplt. Br. 4–5. Ms. Rodriguez was served with
a copy of the Anders brief, id. at 8, but did not contest or respond to it. Pursuant
to Anders, we conduct an independent review to determine whether Ms.
Rodriguez’s claims are frivolous, 386 U.S. at 744, and we conclude they are.
Ms. Rodriguez has been released from prison and is under the supervision
of the Denver Residential Reentry Management field office. See
http://www.bop.gov/inmateloc/ (last visited Dec. 1, 2014). Thus, any question of
the reasonableness of Ms. Rodriguez’s prison term is now moot, see United States
v. Meyers, 200 F.3d 715, 721–22 & n.3 (10th Cir. 2000), and she can only
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challenge the imposition of supervised release and special conditions of release.
We will not reverse a sentence following a revocation of supervised release
if the record shows the sentence is “reasoned and reasonable.” United States v.
Handley, 678 F.3d 1185, 1188 (10th Cir. 2012) (citation omitted). “A ‘reasoned’
sentence is one that is ‘procedurally reasonable’; and a ‘reasonable’ sentence is
one that is ‘substantively reasonable.’” United States v. Vigil, 696 F.3d 997,
1001 (10th Cir. 2012) (citation omitted).
A sentence is procedurally unreasonable where a district judge failed to
properly consider the sentencing factors in 18 U.S.C. § 3553(a) or failed to
conduct an individualized assessment of how the factors apply to a defendant.
See United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)). Because Ms. Rodriguez did not object to
the Guidelines calculation at the sentencing hearing, we review for plain error.
Id. Normally, where plain error is not argued to this court on appeal, it is waived.
See McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010). However, given
our duty to independently assess Ms. Rodriguez’s claims to determine if counsel
should be appointed for her appeal, Anders, 386 U.S. at 744, we proceed on the
assumption that appointed counsel would argue the plain error standard.
Nevertheless, we have reviewed Ms. Rodriguez’s original presentence report, the
supervised release violation report and the minutes from her sentencing hearing
and conclude there is no non-frivolous argument that the district court committed
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procedural error.
We review challenges to the substantive reasonableness of a sentence for
abuse of discretion. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.
2009). “[A] district court’s sentence is substantively unreasonable only if it is
‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” Id. (citation
omitted). Further, “[w]e presume the sentence is substantively reasonable when it
falls within the sentencing guideline range.” United States v. Basnett, 735 F.3d
1255, 1263 (10th Cir. 2013).
When supervised release is revoked and an individual is sentenced to prison
time, a court can include a term of supervised release after the imprisonment. See
18 U.S.C. § 3583(h). Such a term of supervised release cannot exceed the
supervised release term authorized by the statute for the original offense less any
term of imprisonment imposed upon revocation. Id. Here, Ms. Rodriguez pled to
a class B felony, 18 U.S.C. § 3559(a)(2), and thus the statutory maximum
supervised release term is five years. Id. § 3583(b)(1). The Guidelines provide
that “at least two but no more than five” years of supervised release is appropriate
for someone who has committed a Class B felony. U.S. Sentencing Guidelines
Manual § 5D1.2(a)(1).
Thus, under § 3583(h) and in light of the six months of jail time given, Ms.
Rodriguez faced up to four-and-a-half years of supervised release. She was
sentenced to two years of supervised release, at the low end of the Guidelines.
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This sentence was substantively reasonable given Ms. Rodriguez’s criminal
history, her violation of the original supervised release after only one month, 2 R.
26, and the presumptive reasonableness of sentences within the Guidelines.
Where a defendant fails to object to a special condition of supervised
release at the time it is announced, this court reviews for plain error. See United
States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011). Courts may order special
conditions of supervised release to the extent those conditions (1) are “reasonably
related” to the offense and the defendant’s history, the need to deter criminal
conduct, the need to protect the public, or the need to provide the defendant with
treatment or care; (2) “involve no greater deprivation of liberty than is reasonably
necessary” to achieve these purposes; and (3) are “consistent with any pertinent
policy statements” of the Sentencing Commission. See 18 U.S.C. 3583(d); id. §
3553(a)(1), (a)(2)(B)–(D).
The special condition requiring Ms. Rodriguez to participate in a substance
abuse program is reasonably related to her supervised release violation of refusal
to participate in drug testing, her history of drug use, and her multiple drug-
related convictions. 2 R. 4, 15, 17. The condition requiring Ms. Rodriguez to
reside in a residential reentry center for 180 days is reasonably related to her
unwillingness to cooperate with the probation officer and the officer’s
observations that it had been “challenging to build a rapport and assist [Ms.
Rodriguez] with re-entering the community.” Id. at 33. Finally, requiring Ms.
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Rodriguez to complete a mental health program was reasonable in light of her
criminal history, refusal to cooperate with the probation officer, and past mental
health issues. Id. at 17. None of these conditions deprive Ms. Rodriguez of her
liberty greater than reasonably necessary.
For the foregoing reasons, we DISMISS the appeal and GRANT counsel’s
motion to withdraw.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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