FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-8092
(D.C. No. 1:18-CR-00037-NDF-2)
DIANE MARIE SINK, (D. Wyo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, PHILLIPS, and EID, Circuit Judges.
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Diane Sink appeals after pleading guilty to making false statements in relation
to health care. Her counsel moves for leave to withdraw in a brief filed pursuant to
Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C.
§ 1291, we dismiss the appeal and grant counsel’s motion to withdraw.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I
Sink pled guilty to making false statements in relation to health care, pursuant
to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C) capping her prison sentence at
37 months. A Presentence Investigation Report recommended a Guidelines range of
46-57 months’ imprisonment based on a total offense level of 23 and a criminal
history category of I. Consistent with the plea agreement, Sink received a sentence
of 37 months’ incarceration, three years of supervised release, and $6,247,914.43 in
restitution.
II
If an attorney concludes after conscientiously examining a case that any appeal
would be frivolous, he may so advise the court and request permission to withdraw.
See Anders, 386 U.S. at 744. In conjunction with such a request, counsel must
submit a brief highlighting any potentially appealable issues and provide a copy to
the defendant. Id. The defendant may then submit a pro se brief. Id. If the court
determines that the appeal is frivolous upon careful examination of the record, it may
grant the request to withdraw and dismiss the appeal. Id. In this case, defense
counsel provided a copy of his Anders brief to Sink, but she did not file a pro se
brief.
Counsel’s Anders brief addresses the reasonableness of Sink’s sentence.
Because counsel does not distinguish between procedural or substantive
reasonableness, we analyze both. “We review sentences under an abuse of discretion
standard for procedural and substantive reasonableness.” United States v.
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Washington, 634 F.3d 1180, 1184 (10th Cir. 2011). “Procedural review asks whether
the sentencing court committed any error in calculating or explaining the sentence.”
United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008).
“Substantive review involves whether the length of the sentence is reasonable given
all the circumstances of the case in light of the factors set forth in 18 U.S.C. §
3553(a).” Id. at 1215 (quotation omitted). We extend a “rebuttable presumption of
reasonableness to a below-guideline sentence.” United States v. Balbin-Mesa, 643
F.3d 783, 788 (10th Cir. 2011).
We agree with counsel that there is nothing in the record rebutting the
presumption that Sink’s sentence was reasonable. In imposing the 37-month term of
imprisonment, the district court considered the § 3553(a) factors and discussed at
length the two grounds for a variance presented by Sink: the nature and
circumstances of the offense, and her history and characteristics. Moreover, Sink’s
sentence is nine months shorter than the lowest sentence provided in the applicable
Guidelines range, and it is within the range to which she agreed in her plea
agreement. We conclude the district court did not abuse its discretion in sentencing
Sink.
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III
For the foregoing reasons, we GRANT counsel’s request to withdraw and
DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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