United States v. Urbanek ( 2022 )

Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-3079
(D.C. No. 6:16-CR-10038-EFM-1)
KURT A. URBANEK, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
After pleading guilty for possessing a firearm while a felon, a violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2), Kurt Urbanek was sentenced in February 2017 to
36 months’ imprisonment followed by three years supervised release. In February
2021, the United States filed the instant petition to revoke Defendant’s supervised
release. After Defendant pled guilty to four of five alleged violations, the district
*
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. This order and judgment is not binding precedent,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.
Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 2
court revoked Defendant’s supervision and sentenced him to eighteen months’
incarceration with no term of supervision to follow. Defendant timely appealed.
Defendant’s counsel submitted an Anders brief stating that this appeal presents
no non-frivolous grounds for reversal. After careful review of the record, we agree.
Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to
withdraw and dismiss this appeal.
I. BACKGROUND
This appeal follows Defendant’s second revocation hearing on his 2017 guilty
plea. In 2017, Defendant was charged in a six-count indictment: five counts of
unlawful possession of a firearm, ROA, Vol. I at 13–15 (all violations of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2)); and one count of unlawful possession of body armor,
ROA, Vol. I at 15 (violation of 18 U.S.C. §§ 931(a) and 16). Defendant pled guilty
to one count of being a felon in possession of a firearm, and the district court
sentenced him to thirty-six months’ imprisonment followed by three years of
supervised release. While on supervised release, Defendant had his supervised
release first revoked in December 2019, and after a hearing, the district court
sentenced him to twelve months, followed by twenty-four months’ supervised
release.
On April 14, 2021, the district court held a second revocation hearing after the
government filed another supervised release violation report. The government
alleged four violations: possession of a controlled substance, namely
methamphetamine; use of a controlled substance, namely methamphetamine; contact
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with a person known to have engaged in criminal activity; and attempting to
adulterate a urine sample. The government did not proceed with a fifth violation
after a magistrate judge found the allegation lacked probable cause. Defendant
admitted to the four violations, and the court accepted his admission. No other
evidence was entered by either party.
The district court determined that Defendant’s highest violation was in the
category “B” and that he had a criminal history category of “IV.” ROA, Vol. III at
45–46. During the revocation hearing, Defendant argued that he should remain
incarcerated until he could enter a treatment program with the VA, where he had a
bed secured for April 22, 2021. He also argued that the court could require
Defendant to attend an inpatient program or delay proceedings on the revocation until
after he completed a treatment program. The government argued that Defendant’s
prior revocation and use of a urine adulteration device showed his dishonesty. The
district court ultimately concluded that Defendant was “not really working in good
faith” with the probation office nor was he “amenable to supervision.” ROA, Vol. III
at 57–60.
Defendant notified his attorney that he wished to appeal both the revocation of
his supervised release and the eighteen-month sentence, and his counsel timely filed
a notice of appeal. Counsel then submitted an opening brief pursuant to Anders v.
California, 386 U.S. 738 (1967), authorizing counsel “to request permission to
withdraw where counsel conscientiously examines a case and determines that any
appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930
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(10th Cir. 2005). Anders entitles a defendant to file a response to counsel, raising
additional points for appeal. Anders, 386 U.S. at 744. Neither Defendant nor the
government filed a response.
II. DISCUSSION
Anders provides that:
[I]f counsel finds [the defendant’s] case to be wholly
frivolous, after a conscientious examination of it, he
should so advise the court and request permission to
withdraw. That request must, however, be accompanied
by a brief referring to anything in the record that might
arguably support the appeal. . . . [T]he court—not
counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal . . . .
386 U.S. at 744. When counsel submits an Anders brief, we review the record de
novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (per curiam).
Based on our de novo review of the record, we conclude that none of the issues
addressed in the Anders brief have merit, nor have we detected any other non-
frivolous issue.
A. Defendant has no non-frivolous argument challenging the district
court’s revocation of his supervised release.
We review a district court’s revocation of supervised release for abuse of
discretion. United States v. Metzener, 584 F.3d 928, 932 (10th Cir. 2009) (citation
omitted). If a district court finds “by a preponderance of the evidence that [a]
defendant violated a condition of supervised release,” it may revoke the defendant’s
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supervised release. 18 U.S.C. § 3583(e)(3). The requirements for a revocation
hearing are set forth in Federal Rule of Criminal Procedure 32.1.
Rule 32.1(b)(2) sets out five requirements for a revocation hearing. First, the
defendant must have written notice of the alleged violation. Fed. R. Crim. P.
32.1(b)(2)(A). Here, the district court informed Defendant that “a report of
violations of your conditions of supervised release” had been filed and ensured that
Defendant had seen the report. ROA, Vol. III at 43. Next, Defendant was entitled to
the “disclosure of evidence” against him and an opportunity to present his own
evidence and question any adverse witnesses. Fed. R. Crim. P. 32.1(b)(2)(B)–(C).
Here, Defendant admitted to the violations, and no evidence was submitted to the
district court. Third, Defendant had a right to be represented by counsel, which he
was. Fed. R. Crim. P. 32.1(b)(2)(D). Finally, Defendant was given ample
“opportunity to make a statement and present any information in mitigation.” Fed. R.
Crim. P. 32.1(b)(2)(E); see ROA, Vol. III at 55–59, 62–73.
Both the defendant’s admission to the violations and the district court’s
following of proper procedure in the revocation hearing lead this court to conclude
that the district court did not abuse its discretion in revoking Defendant’s supervised
release.
B. Defendant has no non-frivolous argument challenging the district
court’s eighteen-month sentence.
This court reviews a revocation sentence for clear error regarding its factual
findings and de novo on its legal conclusions. United States v. Handley, 678 F.3d
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1185, 1188 (10th Cir. 2012). If a sentence is both “reasoned and reasonable,” this
court will not disturb it. Id. (citations omitted). A “reasoned sentenced” is one that
is procedurally reasonable, while a “reasonable sentence” is one that is substantively
reasonable. United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011).
Defendant’s sentence is both procedurally and substantively reasonable.
First, a procedurally unreasonable sentence is one where the district court fails
to correctly calculate the Guidelines sentence, treats the Guidelines sentence as if it is
mandatory, relies on clearly erroneous facts, or fails to adequately explain the
sentence. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). The district
court properly classified Defendant’s Guidelines range, highest violation grade, and
criminal history. ROA, Vol. III at 45–46. While the government did not pursue one
of the five initial violations, that decision had no impact on the district court’s
calculations. The district court recognized that there was a sentencing range he could
consider. Id. When the district court imposed its sentence, it explained its reasons
for doing so. ROA, Vol. III at 71–72. Thus, the imposition of the eighteen-month
sentence was procedurally reasonable.
Next, a sentence is substantively unreasonable when it “exceeds the bounds of
permissible choice, given the facts and the applicable law.” United States v. Chavez,
723 F.3d 1226, 1233 (10th Cir. 2013) (quotation omitted). Here, the eighteen-month
sentence was within the Guidelines range. ROA, Vol. III at 46 (“the law would
authorize me to revoke [Defendant]’s term of supervision and sentence him to a term
of incarceration of up to two years”). The district court gave adequate explanation
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for the imposed sentence, relying on the applicable facts. Id. at 71–73 (explaining
that he doubted Defendant was “committed enough to comply over a long haul;”
recognizing that the Defendant has “been back here several times;” and that “based
on the factors that I’m required to consider and certainly have considered at length,
. . . this is an appropriate sentence”). The district court’s imposition of an
eighteen-month sentence did not exceed the bounds of permissible choice, and thus is
substantively reasonable.
III. CONCLUSION
Our independent review of the record reveals that Defendant has no
non-frivolous grounds for reversal based on either issue raised in counsel’s Anders
brief or any other potential issues this record would support. We therefore grant
counsel’s motion to withdraw and dismiss this appeal.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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