United States v. Nicholson ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 29, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6170
(D.C. No. 5:17-CR-00108-M-1)
RAY KYLE NICHOLSON, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.**
_________________________________
After violating the conditions of supervised release, defendant-appellant Ray
Kyle Nicholson was sentenced to 30 months’ imprisonment and 22 months’
supervised release. Believing the sentence was excessive, Nicholson asked counsel
to file this appeal. After filing the appeal, counsel submitted an Anders brief stating
his belief that Nicholson had no non-frivolous arguments to make. Counsel then
*
This order and judgment is not binding precedent, except under the doctrines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.
filed a motion to withdraw. We agree with counsel’s position in the Anders brief,
grant the motion to withdraw, and dismiss the appeal.
BACKGROUND
On March 6, 2013, Nicholson was sentenced to 45 months’ imprisonment and
3 years’ supervised release for being an unlawful user of a controlled substance in
possession of a firearm, 18 U.S.C. § 922(g)(3) (Count 1), and possession of a firearm
with an obliterated serial number, id. § 922(k) (Count 2). See ROA Vol. I at 7
(Amended Petition for Warrant or Summons for Offender Under Supervision
(“Petition”)).1 Nicholson began his supervised release in 2017. He violated several
of the terms of his release on several different occasions. The court revoked his
release later that year and sentenced him to 8 months’ imprisonment followed by 28
months’ supervised release.
His second term of supervised release started on April 6, 2018. See id. at 7.
The Petition alleged that within months, he assaulted two women (one incident
occurred on August 8 and the other on August 17); he was “fired from his job . . . due
to poor performance”; and he was “evicted from the sober living house he was
residing in.” Id. at 8–9. The Petition further alleged he was evicted from the sober
living house because of the August 17 assault, suspicion that he was using drugs, and
failure to pay rent. See id. Lastly, the Petition alleged Nicholson missed five drug
1
The Petition states 18 U.S.C. § 911(k), but that appears to be a typo. Section
911 concerns falsely representing oneself to be a citizen of the United States. Section
922(k), on the other hand, covers the issue here—possessing a firearm with an
obliterated serial number.
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tests, and the tests he did take came back positive for either methamphetamine,
marijuana, cocaine, or some combination of the three. See id. at 10. The probation
officer recommended revocation of the second term of supervised release, 30 months’
imprisonment, and 22 months’ supervised release. See id. at 8–10.
At the sentencing hearing, Nicholson stipulated to the allegations in the
Petition. See ROA Vol. III at 3. Nicholson and his counsel then asked the court not
to impose a term of supervised release. As counsel put it: “[Nicholson] fully admits
that he’s never been successful on probation, and he’s asking you not to impose any
further supervision, just sentence him to a term of imprisonment as recommended by
the guidelines and then just cut all further supervision.” Id. at 4. Counsel further
stated, “he’s got enough problems without having to try to comply in the future with
[conditions of supervised release].” Id. at 4–5. “He’s best just left alone if he can
succeed on doing things on his own without having the tension and the stress of being
supervised by the probation office.” Id. at 5. And Nicholson himself stated, “I’ve
never been successful on [supervised release]. . . . [If you impose it again], I’m not
going to make it.” Id. at 6. “I can’t do supervision. . . . I can’t jump through five
hoops.” Id. at 12.
Counsel for the government contended that supervised release was necessary,
inter alia, to deter Nicholson from further criminal conduct and to “protect the public
from future crimes,” as Nicholson stipulated to “two separate incidents of [assault].”
Id. at 9. The court agreed with the government and imposed the sentence
recommended by the probation office. Specifically, the judge stated, “the Court has
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considered the factors in Title 18, United States Code, Section 3553, and the policy
statements in Chapter 7 of the sentencing guidelines. It is the order of the Court that”
Nicholson is sentenced to 24 months’ imprisonment on Count 1, six months’
imprisonment on Count 2, four months’ supervised release on Count 1, and 22
months’ supervised release on Count 2. Id. at 14–15. The terms of imprisonment
were to run consecutively, and the terms of supervised release were to run
concurrently. See id. Effectively then, the sentence was 30 months’ imprisonment
and 22 months’ supervised release. See id.Nicholson believed the sentence was excessive and asked counsel to file this
appeal. See Anders Br. at 2. Counsel did as asked, but he then filed an Anders brief
contending there “are no non-frivolous grounds on which to attack Mr. Nicholson’s
conviction or sentence.” Id. Counsel also filed a motion to withdraw.
DISCUSSION
“When counsel for a defendant has conscientiously examined a client’s case
and determined that any appeal would be ‘wholly frivolous,’ counsel is permitted to
move to withdraw as appellate counsel and file a[n Anders] brief explaining to the
court of appeals why the appeal lacks merit.” United States v. Foster, 758 F. App’x
668, 669 (10th Cir. 2019) (unpublished) (citing Anders v. California, 386 U.S. 738,
744 (1967)). Once counsel has done so, “[t]he Court must then conduct a full
examination of the record to determine whether defendant’s claims are wholly
frivolous. If the court concludes after such an examination that the appeal is
frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal.”
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United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (internal citation
omitted). Having fully examined the record, the Anders brief submitted by
Nicholson’s counsel, and the applicable law, we grant the motion to withdraw and
dismiss the appeal.
A.
We begin with Nicholson’s purported reason for having counsel file this
appeal: that his sentence was excessive. See Anders Br. at 2. We review sentence
reasonableness for abuse of discretion. See United States v. Sayad, 589 F.3d 1110,
1116 (10th Cir. 2009). “Reasonableness review is a two-step process comprising a
procedural and a substantive component.” Id. (citation omitted).
“Procedural reasonableness involves using the proper method to calculate the
sentence.” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). The
Supreme Court has provided the following examples of procedural pitfalls: “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007). Substantive review, “on the other hand,
involves ‘whether the length of the sentence is reasonable given all the circumstances
of the case in light of the factors set forth in [§ 3553(a)].’” Sayad, 589 F.3d at 1116(citation omitted) (alteration original). We see no non-frivolous arguments that the
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district court abused its discretion in imposing an effective sentence of 30 months’
imprisonment and 22 months’ supervised release.
Starting with the procedural component, Nicholson did not raise any
procedural issues below. Cf. ROA Vol. III. To the extent he would now do so, his
arguments would be reviewed under the standard of plain error review. See United
States v. Vonn, 535 U.S. 55, 62 (2002) (discussing plain error review). That
circumstance is compounded by the fact that none of the procedural pitfalls identified
in Gall is present here. See 522 U.S. at 51.
First, the district court correctly calculated the guidelines range. See ROA
Vol. III at 14–18. All the documents submitted to us indicate Nicholson’s Criminal
History Category was VI, and we have no reason to suspect otherwise. See, e.g.,
ROA Vol. II at 1, 6. The district court also correctly noted that Nicholson’s most
serious offense triggering a revocation of supervised release was a Grade A violation.
See U.S.S.G. § 7B1.1(a)(1). Section 7B1.1(a)(1) of the Guidelines states that Grade
A violations include crimes of violence punishable by more than a year
imprisonment. See id. Because Nicholson stipulated to two assault offenses, one of
which was punishable by more than a year of imprisonment, see Okla. Stat. tit. 21,
§ 644(j); ROA Vol. I at 8, the district court’s determination that his most serious
offense triggering a revocation of supervised release was a Grade A violation was
correct. Given that U.S.S.G. § 7B1.4 provides a guideline range of 33–41 months for
a Grade A revocation violation committed by a defendant with a Criminal History
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Category of VI, the district court’s effective sentence of 30 months’ imprisonment
was below the correctly calculated Guidelines range.2
Additionally, the district court’s effective sentence of 22 months’ supervised
release was within the correct range. 18 U.S.C. § 3583(h) provides that “[w]hen a
term of supervised release is revoked and the defendant is required to serve a term of
imprisonment, the court may include a requirement that the defendant be placed on a
term of supervised release after imprisonment.” The provision further provides that
“[t]he length of such a term of supervised release shall not exceed the term of
supervised release authorized by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment that was imposed upon
revocation of supervised release.”
Here, Nicholson violated 18 U.S.C. § 922(g)(3) and 18 U.S.C. § 922(k).
Section 922(g)(3) is a Class C felony, and § 922(k) is a Class D felony. See 18
U.S.C. § 924(a)(1) (establishing penalties for § 922 offenses); 18 U.S.C. § 3559(classifying offenses based on maximum penalties). Courts are permitted to impose
up to three years of supervised release for Class C and Class D felonies. 18 U.S.C.
§ 3583(b)(2). Thus, the term of supervised release authorized was three years for
2
We also note that this term did not exceed the maximum range discussed in
18 U.S.C. § 3583(e)(3). That provision states that a term of imprisonment imposed
for violation of supervised release shall not exceed two years if the original offense
was a Class C or D felony. Here, as explained below, Nicholson’s § 922(g)(3)
offense (Count 1) was a Class C felony, and his § 922(k) offense (Count 2) was a
Class D felony. Nicholson was sentenced to 24 months’ imprisonment on Count 1
and six months’ imprisonment on Count 2. Neither of these sentences exceeded the
maximum range offered by § 3583(e)(3).
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each of the two counts. For Count 1, three years “less [the] term of imprisonment . . .
imposed” (i.e., less 24 months’ imprisonment) is 12 months. The district court’s
sentence of four months’ supervised release on Count 1 was within this limit. As for
Count 2, three years less the six months’ imprisonment imposed is 30 months.
Nicholson’s sentence of 22 months’ supervised release on Count 2 was within that
limit.
Second, there is no indication the district court treated the guidelines as
mandatory. Cf. ROA Vol. III. at 14–18. Third, the district court did not select a
sentence based on clearly erroneous facts, as Nicholson stipulated to the
government’s allegations. See id. at 3. Fourth and finally, the district court
adequately explained the chosen sentence. The court explicitly mentioned the § 3553
factors, Nicholson’s Criminal History Category, the grade of violation, and then
discussed the sentence and the terms of supervised release in detail. See id. at 14–18.
Turning to substantive reasonableness, we see no non-frivolous argument here
either. As noted above, this inquiry hinges on whether “the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
[§ 3553(a)].” Sayad, 589 F.3d at 1116 (citation omitted) (alteration original). When
a court revokes supervised release and imposes a new prison term, § 3583(e) directs
it to consider the following factors in § 3553: (a)(1) (the nature and circumstances of
the offense), (a)(2)(B) (the need for deterrence), (a)(2)(C) (protection of the public),
(a)(2)(D) (the need to provide the defendant with correctional treatment in the most
effective manner), (a)(4) (the guidelines range), (a)(5) (any pertinent policy
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statements), (a)(6) (avoidance of sentencing disparities), and (a)(7) (the need for
restitution).
We begin by noting that the district court’s sentence of 30 months’
imprisonment was below the guidelines range. Accordingly, it is presumptively
reasonable. See United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011).
We see nothing in the facts of Nicholson’s case or the relevant § 3553 factors that
would rebut this presumption. Rather, most of the relevant factors strongly support
the district court’s sentence. For example, because Nicholson had a consistent
history of violating supervised release, the need for deterrence was significant ((a)(1)
and (a)(2)(B)); there was a need to protect the public from future crimes committed
by Nicholson because he stipulated he committed two different assaults during his
most recent term of supervised release ((a)(2)(C)); given Nicholson’s drug abuse,
there was a need for correctional treatment and rehabilitation ((a)(2)(D)); and the
district court considered the Chapter 7 guidelines in imposing the sentence
((a)(4)(B)).
As for the reasonableness of the term of supervised release, § 3583(c) directs
courts to consider the same § 3553(a) factors. Those factors support the
reasonableness of the 22 months’ term of supervised release, just as they supported
the reasonableness of the 30 months’ term of imprisonment.
B.
As for any remaining issues, we generally treat stipulations of the kind at issue
here as “tantamount to an unconditional guilty plea.” United States v. Livingston,
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586 F.3d 819, 822 (10th Cir. 2009). “As such” they generally “amount[] to a waiver
of all non-jurisdictional defenses.” Id.; see also United States v. Wright, 43 F.3d 491,
494 (10th Cir. 1994). We perceive of no jurisdictional defenses that would be
available to Nicholson. Additionally, there is no evidence that his stipulation was
either unknowing or involuntary. Cf. Livingston, 586 F.3d at 823 (remanding for an
evidentiary hearing to determine whether the defendant knowingly and voluntarily
entered the stipulation). To the extent Nicholson would now argue it was, that
argument would be reviewed for plain error because he did not raise it below. See
Vonn, 535 U.S. at 63. We therefore conclude there are no other non-frivolous
arguments Nicholson could raise.
CONCLUSION
For the reasons stated above, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.
Entered for the Court
Allison H. Eid
Circuit Judge
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