United States v. Whitlow , 525 F. App'x 753 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 17, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-3203
v.
(D.C. No. 2:95-CR-20039-KHV-JPO-1)
(D. Kan.)
THOMAS WAYNE WHITLOW,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Defendant-Appellant Thomas Wayne Whitlow stipulated to violating the
conditions of his supervised release. He appeals his sentence of twelve months
and one day’s imprisonment followed by one year of supervised release. We are
addressing Mr. Whitlow’s appeal under the analytical framework established by
*
This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore
ordered submitted without oral argument.
Anders v. California, 386 U.S. 738 (1967). 1 For the reasons that follow, we
affirm the judgment and sentence of the district court. We also grant the request
of Mr. Whitlow’s counsel to withdraw from further representation of Mr. Whitlow
in this matter.
I
The parties are familiar with the facts and procedural history of this case,
and we need not restate either at length. Mr. Whitlow stipulated to three
violations of the conditions of his supervised release: he had used marijuana and
thus failed to refrain from unlawful use of a controlled substance; he had not
obtained gainful employment; and he had not answered truthfully all inquiries by
his probation officer. Because each of these violations was a Class C violation,
and because Mr. Whitlow’s criminal history category was IV, the resulting
Guidelines range was eight to fourteen months’ imprisonment. The district court
imposed a sentence of twelve months and one day’s imprisonment followed by
one year of supervised release.
Mr. Whitlow, through his counsel, filed a timely notice of appeal. Pursuant
to the framework established in Anders, Mr. Whitlow’s counsel then filed a brief
setting forth the potential issues for appeal and requesting permission to withdraw
1
The Supreme Court held in Anders that if defense counsel determines
that his client’s appeal is “wholly frivolous,” counsel must inform the court,
request permission to withdraw, and also submit “a brief referring to anything in
the record that might arguably support the appeal.” 386 U.S. at 744.
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from further representation of Mr. Whitlow in this matter. The Anders brief
identifies two potential issues: the procedural and substantive reasonableness of
Mr. Whitlow’s sentence.
II
“[S]entences are reviewed under an abuse of discretion standard for
procedural and substantive reasonableness.” United States v. Gordon, 710 F.3d
1124, 1160 (10th Cir. 2013) (alteration in original) (quoting United States v.
Snow, 663 F.3d 1156, 1160 (10th Cir. 2011)) (internal quotation marks omitted).
“[W]e review the district court’s legal conclusions de novo and its factual
conclusions for clear error.” United States v. Gallant, 537 F.3d 1202, 1234 (10th
Cir. 2008). “A district court abuses its discretion when it renders a judgment that
is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.
Damato, 672 F.3d 832, 838 (10th Cir. 2012) (quoting United States v. Lewis, 594
F.3d 1270, 1277 (10th Cir. 2010)) (internal quotation marks omitted).
“Procedural reasonableness focuses on whether the district court erred in
‘calculating or explaining the sentence.’” United States v. Halliday, 665 F.3d
1219, 1222 (10th Cir. 2011) (quoting United States v. Friedman, 554 F.3d 1301,
1307 (10th Cir. 2009)). More specifically, procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
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chosen sentence—including an explanation for any deviation from the Guidelines
range.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)) (internal quotation marks omitted).
“[S]ubstantive reasonableness review broadly looks to whether the district court
abused its discretion in weighing permissible § 3553(a) factors in light of the
‘totality of the circumstances.’” Id. at 1118 (quoting Gall, 552 U.S. at 51).
III
With respect to the procedural reasonableness of Mr. Whitlow’s sentence,
the district court “must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.”
Gall, 552 U.S. at 48. Here, at the request of Mr. Whitlow’s counsel for additional
findings regarding the district court’s decision to impose a term of supervised
release, the district court explicitly gave its reasons for doing so. There is no
evidence in the record that the district court improperly calculated the Guidelines
range, failed to consider the § 3553(a) factors, or relied on clearly erroneous facts
in selecting a sentence. See Sayad, 589 F.3d at 1116. Thus, we conclude that
there is no basis for a non-frivolous challenge to the procedural reasonableness of
Mr. Whitlow’s sentence.
Turning to the substantive reasonableness of Mr. Whitlow’s sentence, the
district court sentenced Mr. Whitlow to twelve months and one day’s
imprisonment, a sentence within the relevant advisory Guidelines range of eight
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to fourteen months’ imprisonment. Because the sentence is within the Guidelines
range, it is presumptively reasonable. See United States v. McBride, 633 F.3d
1229, 1232–33 (10th Cir. 2011) (“We have applied a presumption of
reasonableness in reviewing within-guidelines sentences imposed upon
conviction. . . . [T]hat presumption is also appropriate in reviewing a revocation-
of-supervised-release sentence within the range suggested by the Commission’s
policy statements.” (citations omitted)); see also United States v. Kristl, 437 F.3d
1050, 1055 (10th Cir. 2006) (“If . . . the district court properly considers the
relevant Guidelines range and sentences the defendant within that range, the
sentence is presumptively reasonable.”). As the Anders brief notes, Mr. Whitlow
may disagree with the district court’s decision to impose an additional term of
supervised release, but that disagreement does not amount to a showing of abuse
of discretion. Thus, we cannot discern any basis here for a non-frivolous
contention that Mr. Whitlow’s sentence is substantively unreasonable.
In sum, the record does not support a finding that Mr. Whitlow’s sentence
was procedurally or substantively unreasonable.
IV
Having conducted a thorough, independent examination of the record, we
conclude that there are no non-frivolous issues to present on appeal. Therefore,
we affirm the district court’s judgment and sentence, and we grant the request of
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Mr. Whitlow’s counsel to withdraw from further representation of Mr. Whitlow in
this matter.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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