United States v. Marks ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 17 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3212
(D.C. No. 93-CR-10025-01)
ROBERT EARLE MARKS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). Therefore, the
case is ordered submitted without oral argument.
Defendant Robert Marks appeals revocation of his supervised release and
the term of imprisonment imposed by the district court. Defendant’s counsel has
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
determined the appeal to be frivolous and has filed an Anders brief (Anders v.
California, 386 U.S. 738, 744 (1967)), raising the following issue on behalf of
defendant: In addressing defendant during the revocation hearing and sentencing,
the district court “used a tone, manner or language that exhibited a bias against
[defendant] that denied him due process.” Appellant’s br. at 4.
We have examined the record on appeal and agree with counsel that the
appeal is frivolous. Defendant admitted the violations of the terms of his
supervised release. During the revocation hearing, defendant’s counsel asked the
district court to sentence defendant at the low end of the guideline range. The
court rejected the request, concluding defendant had failed to take advantage of
previous “breaks” by the court and the probation office and that defendant
represented a danger to his children and to the community. The court sentenced
defendant at the high end of the guideline range. We find nothing improper in the
court’s remarks or any bias on the part of the court. See Liteky v. United States ,
510 U.S. 540, 555 (1994) (“opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality motion”);
United States v. Lowe , 106 F.3d 1498, 1504 (10th Cir. 1997) (no bias where
judge based sentence on reliable, undisputed information in presentence report);
United States v. Gigax , 605 F.2d 507, 514 (10th Cir. 1979) (judge’s expression of
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opinions at sentencing did not demonstrate bias).
The judgment of the district court is AFFIRMED. Counsel’s motion to
withdraw is GRANTED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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