United States v. Martinez , 578 F. App'x 783 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT September 29, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 14-2056
(D.C. No. 1:12-CR-01910-WJ-5)
v. (D. N. Mex.)
MATTHEW MARTINEZ,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Matthew Martinez filed a notice of appeal from the revocation of his supervised
release and the imposition of a six-month prison term followed by three years of
supervised release. His counsel moved to withdraw and filed a brief based on Anders v.
California, 386 U.S. 738 (1967), stating that after a diligent search of the record, he has
*After examining Appellant’s brief and the 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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
found no issues that could support an appeal. Exercising jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), and finding no meritorious grounds for appeal, we grant
counsel’s motion to withdraw and dismiss the appeal.
I. BACKGROUND
In 2013, Mr. Martinez pled guilty to conspiracy to distribute a controlled
substance in violation of 21 U.S.C. § 846. He was sentenced to 18 months in prison
followed by three years of supervised release.
In February 2014, the United States petitioned to revoke Mr. Martinez’s
supervised release, alleging he had violated three release conditions: failing to (1) notify
his probation officer ten days before any change in residence or employment; (2) refrain
from the use and possession of alcohol and other intoxicants; and (3) reside and complete
a program at an approved residential reentry center. Mr. Martinez admitted to violating
all three conditions. The district court revoked his supervised release and sentenced him
to six months in prison followed by three years of supervised release.
Mr. Martinez filed a timely notice of appeal. His appointed counsel, who
represented him in the revocation proceedings, then filed an Anders motion to withdraw.
The Government notified the court it would not oppose the motion. Mr. Martinez was
notified of his counsel’s Anders motion, and he has not filed a response.
II. DISCUSSION
Under Anders, counsel may “request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
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frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders,
386 U.S. at 744). In doing so, “counsel must submit a brief to the client and the appellate
court indicating any potential appealable issues based on the record.” Id. We must then
independently examine the record to determine whether the defendant’s claims are
“wholly frivolous,” and, if so, we may grant counsel’s motion to withdraw and dismiss
the appeal. Id.
In his Anders brief, counsel identifies only one conceivable ground for appeal:
ineffective assistance of counsel. We have stated, however, that “[i]neffective assistance
of counsel claims should be brought in collateral proceedings, not on direct appeal.”
United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Thus, “when
brought on direct appeal, ineffective assistance of counsel claims are presumptively
dismissible, and virtually all will be dismissed.” United States v. Trestyn, 646 F.3d 732,
741 (10th Cir. 2011) (internal quotations omitted). “[E]ven if the record appears to need
no further development, the claim should still be presented first to the district court . . . .”
Galloway, 56 F.3d at 1240. After reviewing the record, we see no reason to depart from
that general rule in this case.
As counsel points out in the Anders brief, Mr. Martinez has no basis to challenge
his revocation because he admitted to violating all three supervised release conditions.
And although not specifically raised in the Anders brief, Mr. Martinez also cannot
challenge his sentence’s procedural or substantive reasonableness, as our independent
review of the record has confirmed and as we address briefly below.
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We review a challenge to a revocation sentence for abuse of discretion, reviewing
the district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Tsosie, 376 F.3d 1210, 1217-18 (10th Cir. 2004). The district court
must “consider both [U.S.S.G.] Chapter 7’s policy statements as well as a number of the
factors provided in 18 U.S.C. § 3553(a).” United States v. Cordova, 461 F.3d 1184, 1188
(10th Cir. 2006) (citation omitted).1 It “is not required to consider individually each
factor listed in § 3553(a),” id. at 1189 (internal quotations omitted), but the sentencing
court must “state in open court the reasons for its imposition of the particular sentence,”
18 U.S.C. § 3553(c). The court must provide enough reasoning “to satisfy the appellate
court that [it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S.
338, 356 (2007).
The district court stated its reasons for revoking Mr. Martinez’s supervised release
and imposing the sentence. After considering the advisory range from Chapter 7’s policy
statements and the § 3553(a) factors, the court imposed a sentence within the
recommended range of 5 to 11 months. See U.S.S.G. § 7B1.4. The record provides no
basis to conclude the sentence is procedurally or substantively unreasonable.
1
The Chapter 7 policy statements address violations of supervised release and
include recommended advisory sentencing ranges. See generally U.S.S.G. Ch. 7. The
§ 3553(a) sentencing factors include, in part, the nature of the offense, the history and
characteristics of the defendant, and the need for the sentence to provide adequate
deterrence and protect the public. See 18 U.S.C. § 3553(a).
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We therefore find nothing in the record that would provide a nonfrivolous ground
for Mr. Martinez to appeal.
III. CONCLUSION
We grant counsel’s motion to withdraw and dismiss Mr. Martinez’s appeal.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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