United States v. Pasley ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 22, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-6148
v. (D.C. No. 5:08-CR-00289-R-1)
(W.D. Okla.)
SKYLER LEE PASLEY,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.**
_________________________________
On July 21, 2009, Defendant was sentenced to a term of 130 months’
incarceration followed by three years of supervised release for possession with intent
to distribute marijuana in violation of 21 U.S.C. § 841 (b)(1)(D), three counts of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), interference with
commerce by robbery in violation of 18 U.S.C. § 1951(a), and brandishing a firearm
*
This order and judgment is not binding precedent, except under the doctrines of law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 to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Defendant’s
term of supervised release commenced on November 27, 2018.
On September 5, 2019, the United States Probation Office filed a petition for a
revocation of Defendant’s supervised release based on three alleged violations. These
violations included: (1) violation of the mandatory condition that Defendant shall not
commit another crime; (2) violation of the standard condition that Defendant shall not
associate with any persons engaged in criminal activity; and (3) violation of the
standard condition that Defendant shall not associate with any persons convicted of a
felony. Based on these violations, the advisory guideline range for Defendant’s
revocation sentence was 12 to 18 months’ imprisonment and up to 60 months of
supervised release minus any term of incarceration imposed.
On September 16, 2019, the district court held Defendant’s final revocation
hearing. At the hearing, Defendant stipulated to committing the violations listed in the
petition for revocation. Probation recommended a sentence of 18 months’
imprisonment, while Defendant requested a sentence of six months. The district court
ultimately imposed a low-end guideline sentence of 12 months’ incarceration followed
by 48 months of supervised release.
Defendant now appeals and argues his sentence is procedurally and
substantively unreasonable. Counsel for Defendant filed an Anders brief and moved
to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967). Defendant
did not file a response to the Anders brief. The Government declined to submit a brief.
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Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to withdraw
and dismiss this appeal as wholly frivolous.
***
We review a revocation sentence for reasonableness applying a deferential
abuse-of-discretion standard. United States v. McBride, 633 F.3d 1229, 1232 (10th
Cir. 2011). Reasonableness review has both a procedural and substantive component.
United States v. Lewis, 625 F.3d 1224, 1231 (10th Cir. 2010). A sentence may be
procedurally unreasonable if the district court fails to calculate (or improperly
calculates) the Guideline range, treats the Guideline range as mandatory, fails to
consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or
fails to adequately explain the sentence. Id. (citing Gall v. United States, 552 U.S. 38,
51 (2007)). With respect to substantive reasonableness, we consider “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. (quoting United States v. Alapizco-
Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008)). A sentence within the properly
calculated guideline is entitled to a rebuttable presumption of reasonableness. Id.
Upon review of the record and counsel’s Anders brief, we find there is no non-
frivolous basis for Defendant to argue his low-end guideline sentence is procedurally
or substantively unreasonable. In fashioning the appropriate sentence, the district court
stated it “read the presentence report” in Defendant’s case and considered the parties’
arguments, “the sentencing guidelines, which are advisory[,]” and “the sentencing
factors set forth in 18 U.S. Code, 3553.” ROA Vol. 3 at 30. The district court then
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explained Defendant was “associating and affiliating with people [he] shouldn’t be
involved with.” Id. Defendant also “helped and participated in” a drug deal, in “clear
violation” of his supervised release. Id. at 30–31. While the district court
acknowledged it was “pleased that [Defendant] had a job” and had “reported
appropriately to the probation office,” the court explained there had to “be a
consequence” for Defendant’s violations. Id. at 31. Accordingly, the court determined
a sentence of 12 months’ imprisonment followed by 48 months of supervised release
was appropriate. We see no basis to reverse the district court’s reasoned judgment.
***
Accordingly, 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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