United States v. Richardson

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 16, 2015

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-6068
(D.C. No. 5:08-CR-00156-HE-1)
GENE DEMETRIUS RICHARDSON, (W.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.

Gene Demetrius Richardson appeals the district court’s revocation of his three

year term of supervised release and imposition of a two-year prison sentence. His

attorney has filed an Anders brief and motion to withdraw, asserting that there are no

non-frivolous issues for appeal. See Anders v. California, 386 U.S. 738 (1967). This

court notified Mr. Richardson of his opportunity to file a pro se brief, but he has not

responded and the time to do so has now passed. We have independently reviewed

*
After examining the briefs and 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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the record and agree with counsel’s assessment that there are no non-frivolous issues

for appeal. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we grant the motion to withdraw and dismiss the appeal.

I

Mr. Richardson was convicted in 2008 of being a felon in possession of a

firearm. He was sentenced to 70 months in prison, followed by three years of

supervised release. Shortly after he commenced his term of supervised release, the

government filed an amended petition to revoke it, alleging that Mr. Richardson had

violated eight conditions of his supervised release.

At an evidentiary hearing, Mr. Richardson elected to represent himself.

Although he put the government to its burden of establishing each violation by a

preponderance of the evidence, he put on no evidence of his own, conducted no

cross-examination, and lodged no objections. Indeed, he made no argument at all and

prevented his attorney, who remained as stand-by counsel, from making a proffer. At

the close of the evidence, the district court sustained the government’s allegations,

revoked Mr. Richardson’s supervised release, and sentenced him to 24 months in

prison, followed by one year of supervised release. Mr. Richardson subsequently

appealed, and his attorney filed an Anders brief and motion to withdraw.

II

Under Anders, defense counsel may move to withdraw if, after conscientiously

examining the case, counsel determines that an appeal would be “wholly frivolous.”

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386 U.S. at 744. “[C]ounsel must 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). The client may also file a pro se

response. Anders, 386 U.S. at 744. We then conduct an independent examination of

the record to determine “whether the case is wholly frivolous.” Id. If we agree with

counsel’s assessment, we grant the motion to withdraw and dismiss the appeal. Id.

Mr. Richardson’s attorney has identified three potential, albeit frivolous,

issues, all of which we review for plain error. See United States v. McComb,

519 F.3d 1049, 1054 (10th Cir. 2007). First, counsel addresses whether there was

insufficient evidence of Mr. Richardson’s supervised release violations. The

government was obligated to establish each violation by a preponderance of the

evidence. See 18 U.S.C. § 3583(e)(3) (prescribing preponderance of the evidence

standard for revocation of supervised release); see also United States v. Disney,

253 F.3d 1211, 1213 (10th Cir. 2001) (applying preponderance of the evidence

standard). To this end, the government called Mr. Richardson’s probation officer,

who testified that since Mr. Richardson began his term of supervised release on

December 13, 2013, he violated the following eight conditions by engaging in the

described conduct:

1. That he reside at a residential reentry facility for 180 days and comply with
all of its rules: by being terminated from his halfway house on January 17,
2014 for repeated rule violations;

2. That he participate in a substance abuse program and abstain from alcohol

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 and other intoxicants: by failing to timely report to two counseling
sessions;

3. That he notify his probation officer at least ten days before changing his
address or employment: by failing to provide an updated address after
moving out of his mother’s residence and a city rescue mission;

4. That he truthfully answer his probation officer’s questions and follow his
probation officer’s instructions: by failing to report to his probation office
or call his probation officer;

5. That he submit to urine testing: by failing to provide a urine sample;

6. That he not commit any federal, state, or local crimes: by being arrested for
obstructing a University of Oklahoma police officer;

7. That he not associate with anyone engaged in criminal activity or any
convicted felons: by riding in a car with a known felon who was under the
supervision of the Oklahoma Department of Corrections; and

8. That he not commit any federal, state, or local crimes: by being charged
with three felonies while held in custody. Specifically, a prison guard
discovered that Mr. Richardson possessed tobacco, matches, and rolling
papers. Mr. Richardson threated to “blow [the guard] away.” R., Vol. 3 at
19. Then, while making a telephone call, Mr. Richardson instructed the
other caller to “put heat on [the detention officer].” Id. As the call was
being disconnected, he stated, “burn him, you hear me.” Id. at 20. Later,
Mr. Richardson was transported to court in a mask and restraints because
“he was spitting so much.” Id. at 21-22. He also pressed a camera
call-button in his jail cell to get the attention of a female guard while he
was masturbating. Id. at 22.

This evidence easily establishes by a preponderance that Mr. Richardson

violated the conditions of his supervised release. Although some of his probation

officer’s testimony was hearsay, Mr. Richardson had ample opportunity to challenge

the testimony. But he elected not to do so. See Fed. R. Crim. P. 32.1(b)(2)(C)

(providing that defendant at revocation hearing is entitled to appear, present

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evidence, and question adverse witnesses unless the court determines that the interest

of justice does not require the witness to appear). Because Mr. Richardson was

informed of the charges against him, he had the opportunity to challenge the evidence

and to put on his own, and yet he declined to object to the hearsay evidence, we

cannot say its admission constitutes plain error.

Second, counsel avers that Mr. Richardson might claim his sentence was

procedurally unreasonable because the district court failed to demonstrate that it had

adequately considered the 18 U.S.C. § 3553(a) factors and to explain its reasons for

the sentence it imposed.1 This argument is frivolous because “[w]here a district court

imposes a sentence falling within the range suggested by the Guidelines, Section

3553(c) requires the court to provide only a general statement of the reasons for its

imposition of the particular sentence.” United States v. Chavez, 723 F.3d 1226, 1232

(10th Cir. 2013). Here, the district court sentenced Mr. Richardson to 24 months in

prison, which, based on his Criminal History Category V and Grade B violation, was

at the top of the applicable 18-to-24 month guideline range. See USSG

§§ 7B1.1(a)(2); 7B1.3(a)(1); 7B1.4(a); R., Vol. 2 at 26 (PSR, para. 36). In imposing

this sentence, the court explained that Mr. Richardson’s violations were both serious

and extensive. The court was particularly concerned by the threats and other

violations involving the prison guards and police officer. Describing the nature of
1
Counsel does not dispute that Mr. Richardson’s sentence, which was within a
correctly calculated guideline range, was presumptively reasonable. See United
States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013).

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these violations as “egregious,” R., Vol. 3 at 27, the court observed that “they reflect

an affirmative and aggressive failure to follow the instructions of the probation

officer and the requirements of probation.” Id. Therefore, noting Mr. Richardson’s

lack of effort at the supervision process, the court sentenced him to 24 months in

prison, followed by one year of supervised release, to include mental health and

substance abuse treatment. This explanation manifests the court’s consideration of

the § 3553(a) factors and was legally adequate.

Third, counsel considered whether the district court erred in imposing special

conditions of supervised release, in particular that Mr. Richardson reside at a halfway

house for “up to 180 days,” submit to reasonable searches, and participate in mental

health and substance abuse treatment, all “at the direction of the probation officer.”

R., Vol. 3 at 28-29. Initially, counsel analyzed whether these conditions impose

greater deprivations on Mr. Richardson’s liberty than is reasonably necessary to deter

his criminal conduct, protect the public, and promote his rehabilitation.

See 18 U.S.C. § 3583(d)(2). Given Mr. Richardson’s proclivity for criminal conduct,

however, as well as the egregious nature of his violations and his mental health and

substance abuse issues, this argument is frivolous. Indeed, as the district court

recognized, the special conditions aim to afford adequate deterrence, protect the

public, and promote Mr. Richardson’s rehabilitation. See 18 U.S.C.

§ 3553(a)(2)(B)-(D). They involve no greater deprivation of liberty than that

reasonably necessary to achieve these objectives.

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 Counsel also posits that Mr. Richardson might argue that the district court

improperly delegated its Article III authority by requiring him to participate in

mental health and substance abuse treatment “at the direction of the probation

officer.” R., Vol. 3 at 28, 29. “Article III prohibits a judge from delegating the duty

of imposing the defendant’s punishment to the probation officer.” United States v.

Mike, 632 F.3d 686, 695 (10th Cir. 2011). We “distinguish between those

delegations that merely task the probation officer with performing ministerial acts or

support services related to the punishment imposed and those that allow the officer to

decide the nature or extent of the defendant’s punishment.” Id. “Delegations that do

the former are permissible, while those that do the latter are not.” Id. In analyzing

this issue, we adhere to our review for plain error but “conduct [our] analysis less

rigidly when reviewing for potential constitutional error.” Id. at 692.

This issue is frivolous because we construe “non-specific, all-encompassing

conditions” so as to comply with constitutional standards. Id. at 696. Indeed, “where

a broad condition of supervised release is ambiguous and could be read as restricting

a significant liberty interest, we construe the condition narrowly so as to avoid

affecting that significant liberty interest.” United States v. Bear, 769 F.3d 1221,

1230 (10th Cir. 2014). Here, the district court ordered Mr. Richardson to “participate

in a program of mental health aftercare at the direction of the probation officer.”

R., Vol. 3 at 28. The court similarly ordered him to “participate in a program of

substance abuse aftercare at the direction of the probation officer to include urine,

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breath, or sweat patch testing and outpatient treatment.” Id. at 29. Even if these

conditions could be construed as permitting probation to select inpatient, residential

treatment programs, which would implicate a significant liberty interest, see Mike,

632 F.3d at 696, there is no such express delegation and we decline to adopt that

construction, see Bear, 769 F.3d at 1231 (interpreting condition so as to not implicate

significant liberty interests); cf. Mike, 632 F.3d at 699 (finding error, although not

plain error, where condition expressly included residential placement). Instead, we

interpret the condition as giving the probation officer authority to direct only

outpatient treatment.

The court also required that Mr. Richardson reside at the halfway house “for a

period of up to 180 days at the direction of the [probation] officer.” R., Vol. 3 at 28.

Even if this could be construed as an impermissible delegation, it was not plain error.

See United States v. Huffman, 146 F. App’x 939, 943-47 (10th Cir. 2005)

(unpublished) (finding no plain error where similar language conferred authority on

probation officer to determine the time defendant must reside at community

corrections facility, up to the specified number of days).2 “Plain error occurs when

there is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)
2
Unpublished opinions are not binding precedent. However, because Huffman
involved similar circumstances, we cite it for its persuasive value. See 10th Cir. R.
32.1(A); United States v. Samuels, 493 F.3d 1187, 1194 n.9 (10th Cir. 2007).

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(en banc) (internal quotation marks omitted). To satisfy the third prong,

Mr. Richardson must show “a reasonable probability that, but for the error claimed,

the result of the proceedings would have been different.” Id. at 733 (internal

quotation marks omitted). This requires that he show his substantial rights were

prejudiced. See United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012).

Mr. Richardson might attempt to establish prejudice three different ways, none

of which are availing. First, he might claim that but for the discretion afforded to the

probation officer, the district court would not have imposed the same 180-day

halfway-house condition. To show prejudice, Mr. Richardson would have to

demonstrate that without the delegation, the district court would have imposed a

shorter maximum period of confinement at the halfway house. But there is nothing

in the record to support such a theory; the court simply ordered that he reside at the

halfway house “for a period of up to 180 days at the direction of the officer.”

R., Vol. 3 at 28. Thus, any claim of prejudice in this regard is purely speculative and

insufficient to satisfy the third prong of plain error review. See Gonzalez-Huerta,

403 F.3d at 740 (Tacha, J., concurring) (“[S]peculation about a possible lighter

sentence cannot satisfy the third prong of plain error.”); see also United States v.

Robinson, 627 F.3d 941, 955 (4th Cir. 2010) (recognizing defendant’s burden to

show actual “prejudice and not merely possible or speculative prejudice”).

A second way Mr. Richardson might claim prejudice is if the delegation

somehow impaired his ability to petition the district court to modify the condition

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and allow his early release from the halfway house. See 18 U.S.C. § 3583(e)(2)

(providing that court “may modify, reduce, or enlarge the conditions of supervised

release”). This claim is meritless because nothing in § 3583(e)(2) constrains the

district court’s ability to grant early release based on the conditions set by the court,

including a provision for early release by a probation officer. Indeed, we expressly

recognized the district court’s continuing authority to modify the conditions of

supervised release, regardless of any discretion afforded to the probation officer, in

Huffman, 146 F. App’x at 946.

Third, Mr. Richardson might attempt to show prejudice by claiming that

without the delegation, the district court would grant a request to modify the

condition and allow his early release. But this claim is unavailing because nothing in

the condition prohibits him from directly petitioning the district court for early

release. In addition, he cannot demonstrate that the court would grant such a request,

and the mere possibility that it might is pure speculation. Again, this is insufficient

to satisfy plain error review. See Gonzalez-Huerta, 403 F.3d at 740. Thus,

Mr. Richardson cannot show the delegation prejudiced his substantial rights. In fact,

it appears that the challenged condition could only benefit Mr. Richardson because it

effectively gave him an alternative, expedited means of seeking early release.

See Huffman, 146 F. App’x at 943 n.7 (questioning “how a condition obviating the

need to file a petition with the court, rewarding good behavior and expediting early

release, could redound other than to [defendant’s] benefit”).

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 Additionally, Mr. Richardson cannot establish the fourth prong of plain error

review—i.e., an error warranting an exercise of our discretion—because ultimately,

the district court ordered him to serve no more than 180 days in the halfway house.

See id. at 947 (concluding that fourth prong of plain error review was not established

because district court—not the probation officer—made the “‘significant penological

decision’” to order defendant to serve no more than the specified time in a

community corrections facility (quoting United States v. York, 357 F.3d 14, 21

(1st Cir. 2004))).

Finally, the district court imposed the following search condition:

[T]he defendant must submit to a search of his person, property, or any
automobile under his control to be conducted in a reasonable manner
and at a reasonable time for the purpose of detecting firearms or other
controlled substances at the direction of the probation officer if there’s a
showing of reasonable suspicion to justify that.

R., Vol. 3 at 29. This condition does not delegate to the probation officer the

judicial authority to determine the nature and extent of Mr. Richardson’s punishment.

See Mike, 632 F.3d at 695. Rather, the district court clearly defined the nature and

extent of any search by requiring that it be conducted at a reasonable time, in a

reasonable manner, and for the purpose of finding firearms or controlled substances.

The court also required that any search be supported by reasonable suspicion.

Although the probation officer must execute the search, this simply reflects the

officer’s role as “an investigative and supervisory arm of the court,” United States v.

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Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (internal quotation marks and brackets

omitted). Thus, there was no impermissible delegation.

III

Mr. Richardson fails to offer any non-frivolous issues for appeal, and our

independent review confirms there are none. Accordingly, we grant defense

counsel’s motion to withdraw and dismiss this appeal.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

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