FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-7082
(D.C. No. 6:09-CR-00049-RAW-1)
RICHARD LENO BONAT, (E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. **
_________________________________
Defendant Richard Bonat challenges his 24-month prison sentence for
violating a condition of his supervised release. Before the Court are defense
counsel’s motion to withdraw and Anders brief alleging the frivolity of the appeal, as
well as Bonat’s pro se response to the Anders brief. See Anders v. California, 386
U.S. 738 (1967). Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, we grant defense counsel’s motion and dismiss the appeal.
*
This order and judgment is not binding precedent, except under the doctrines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 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.
In 1995, Bonat pleaded guilty to being a felon in possession of a firearm under
18 U.S.C. § 922(g). Because he had three prior burglary convictions, the district
court enhanced his sentence under the Armed Criminal Career Act (“ACCA”), 18
U.S.C. § 924(e), and sentenced him to fifteen years’ imprisonment and five years of
supervised release. Bonat had recently completed his prison term and was serving
his term of supervised release when police officers discovered marijuana in his
possession in 2011. Because Bonat’s possession of the drug violated a condition of
his supervised release, the district court sentenced him to an additional 24 months of
supervised release.
Over a year later, in late 2012, Bonat pleaded guilty in Oklahoma state court to
possession with intent to distribute a controlled substance. In May 2013, the state
court sentenced him to 10 years’ imprisonment in the Oklahoma Department of
Corrections. Accordingly, Bonat’s federal probation officer filed a petition in the
district court to revoke Bonat’s supervised release, and he advised Bonat that
revocation proceedings would take place upon his release from state custody.
Oklahoma granted Bonat early release in August 2016, and he was remanded into
federal custody. He stipulated to the facts in the revocation petition, and the district
court sentenced him to 24 months’ imprisonment—a significant downward variance
from the Guidelines range of 46 to 57 months. U.S.S.G. § 7B1.4; see also 18 U.S.C.
§ 3583(e)(3) (allowing a term of up to 60 months). Bonat timely appealed the
sentence.
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When court-appointed counsel wishes to withdraw because the defendant’s
appeal is wholly frivolous, counsel must provide the court with a brief addressing
anything in the record that may support the appeal. Anders, 386 U.S. at 744.
Counsel should provide this brief to the defendant, and the defendant may raise any
points or grounds for appeal he chooses. Id. We must then make a full examination
of the record and proceedings. United States v. Kurtz, 819 F.3d 1230, 1233 (10th
Cir. 2016). If we determine that the appeal is, indeed, wholly frivolous, we may
dismiss the appeal. Id.
Pursuant to his Anders burden, defense counsel raises two points, both of
which he rebuts, while Bonat argues two additional points. Defense counsel suggests
that Bonat may contest the procedural and substantive reasonableness of the sentence
and that Bonat may bring a Fifth Amendment “due-process” claim. Bonat, on the
other hand, argues that Johnson v. United States, 135 S. Ct. 2551 (2015), and its
progeny invalidate the enhancement of his original 1995 sentence under the ACCA
and, alternatively, that the enhancement was contrary to the legislative intent of that
statute.
We first turn to defense counsel’s reasonableness argument. In reviewing
sentencing decisions accompanying a revocation of supervised release, we apply an
abuse of discretion standard to evaluate the procedural and substantive
reasonableness of the sentence. United States v. Ruby, 706 F.3d 1221, 1225–26 (10th
Cir. 2013); see also United States v. McBride, 633 F.3d 1229, 1231–32 (10th Cir.
2011). Bonat, however, raised only his Johnson argument in the district court and
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made no other objections. We thus review any unpreserved challenges to the
reasonableness of the sentence for plain error. Ruby, 706 F.3d at 1225.
We have thoroughly reviewed the record, and we agree with defense counsel
that the district court did not abuse its discretion, let alone plainly err, in sentencing
Bonat. The sentence is procedurally reasonable because the district court adequately
applied the 18 U.S.C. § 3553 sentencing factors as required by § 3583(e). The
district court stated that it had considered, among other things, the policy statements
in U.S.S.G. Ch.7, the nature and circumstances of the violation, and Bonat’s history
and characteristics. We do not require the district court to state how each factor
informed its decision, nor do we require any “magic words” to show that the court
fulfilled its statutory responsibilities. United States v. Rodriguez-Quintanilla, 442
F.3d 1254, 1258–59 (10th Cir. 2006). Furthermore, the sentence is undoubtedly
substantively reasonable for two reasons. First, sentences below the properly-
calculated Guidelines range are entitled to a rebuttable presumption of
reasonableness on appeal, and the district court imposed a sentence half of the
recommended term. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir.
2011). Second, the district court appropriately imposed the revocation sentence
consecutive to the discharged state prison sentence for the conduct that violated the
condition. United States v. Fay, 547 F.3d 1231, 1235–37 (10th Cir. 2008). We see
no other potential challenges to the reasonableness of this sentence.
Defense counsel next suggests that Bonat might bring a “due-process” claim
under the Fifth Amendment pursuant to United States v. Santana, 526 F.3d 1257 (9th
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Cir. 2008), because his revocation hearing did not occur until four years after his
violation. “Parolees, however, have no legal right to receive an immediate hearing
on their supervised release revocation.” United States v. Romero, 511 F.3d 1281,
1284 (10th Cir. 2008). Specifically, “there is no constitutional duty to provide
prisoners an adversary parole hearing until they are taken into custody as parole
violators.” Id. Bonat was held in state custody between his 2012 arrest and August
22, 2016, when he was remanded into federal custody. His revocation proceedings
occurred on September 28, 2016. In light of Romero, we find no due process
violation.
Finally, Bonat makes two attacks on his underlying sentence. He argues that
his 1995 sentence is unconstitutional because Johnson held that the residual clause of
the ACCA was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. He also
argues that the three robbery convictions used to enhance his 1995 sentence occurred
as part of a “crime spree,” rather than as a pattern of career criminality, and thus fall
outside the congressionally-intended scope of the ACCA. From what we can
interpret from his letter, Bonat claims that, but for the improper sentencing in 1995,
he would not have been serving a term of supervised release at the time of his 2012
arrest. But this appeal is not the appropriate forum for Bonat to launch such
collateral attacks on his original sentence. United States v. Cordova, 461 F.3d 1184,
1186 n.2 (10th Cir. 2006) (“To the extent [Defendant] also seeks to contest the
original imposition of supervised release, we reject that contention as well. Such a
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collateral attack cannot be made in an appeal of the revocation of supervised
release.”).
Because we find this appeal frivolous and without merit, defense counsel’s
motion to withdraw is GRANTED and this appeal is DISMISSED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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