FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 22, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-3070
          v.                                            (D. Kansas)
 LAURA S. KEMBLE,                            (D.C. No. 6:11-CR-10014-JTM-5)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.

      Defendant and appellant, Laura Kemble, seeks to appeal the twenty-one

month sentence imposed on her following the revocation of her probation. Her



      *
       This order and judgment is not binding precedent, except under the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. 32.1.
appointed counsel, Cori A. Harbour-Valdez, has filed an Anders brief and has

moved to withdraw as counsel. See Anders v. California, 

(1967).

Kemble has filed a pro se response to that brief, and the government has declined

to file a brief. We therefore base our conclusion on counsel’s brief and Kemble’s

response, as well as our own careful review of the record. For the reasons set

forth below, we agree with Ms. Harbour-Valdez that the record in this case

provides no nonfrivolous basis for an appeal, and we therefore grant her motion to

withdraw and dismiss this appeal.



                                 BACKGROUND

      In August 2011, Kemble pled guilty to one count of making a false

statement to the government, in violation of 18 U.S.C. § 1001(a), and one count

of food stamp fraud, in violation of 7 U.S.C. § 2024(b). 1 She was sentenced to

three years of probation on each count, to run concurrently. On December 6,

2011, an officer with the United States Probation Office filed a petition alleging

that Kemble had violated the terms of her probation by providing a urine

specimen which tested positive for cocaine, and by failing to report for drug

testing and treatment, failing to report for mental health treatment, failing to

report to the Probation Office, and absconding from supervision.


      1
     Food stamps are now called Supplemental Nutrition Assistance Program
(“SNAP”) benefits.

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      On March 1, 2012, Kemble waived her right to a hearing and stipulated that

the allegations in the petition were true. Based on that stipulation, as well as the

information in the violation report, the court determined that Kemble had violated

her probation and it revoked her term of probation. After noting that the highest

grade of violation was a Grade B and that Kemble’s criminal history category was

a 6, resulting in an advisory sentencing range of 21-27 months under the United

States Sentencing Commission, Guidelines Manual, the court sentenced Kemble

to 21 months, followed by two years of supervised release.

      Kemble filed a pro se notice of appeal. As indicated, her appointed counsel

has moved to withdraw as counsel pursuant to Anders.



                                   DISCUSSION

      In Anders, the Supreme Court held that if a defendant’s counsel “finds [the

defendant’s] case to be wholly frivolous, after a conscientious examination of it,

[s]he should so advise the court and request permission to withdraw.” 

. Counsel must submit to both the court and her client a “brief

referring to anything in the record that might arguably support the appeal.” 

then “raise any points that [s]he chooses.” 

must examine all the proceedings to determine whether

the appeal is frivolous. 

so finds, it may grant defense counsel’s

request to withdraw and dismiss the appeal. 

hand, if it finds

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any of the legal points arguable on their merits (and therefore not frivolous) [the

reviewing court] must, prior to decision, afford the indigent [defendant] the

assistance of counsel to argue the appeal.” 

her pleadings that she was dissatisfied with the attorney

who represented her in her original criminal proceeding as well as in her

probation revocation proceedings. She is vague, however, as to the nature of her

dissatisfaction. She alleges that the attorney, Terry Beall, failed to appear at her

sentencing for the food stamp and false statement violations, although he sent

another attorney to represent her whom she says “didn’t know anything about

what was going on with [her] or [her] case.” Pro Se document filed 8/9/12 at 1.

Kemble does not specify what harm, if any, she suffered because a different

attorney was present.

      She also claims that Mr. Beall may have told her that she would likely

receive a 6-12 month sentence for her probation violation, and she was

accordingly dismayed when she received a 21-month sentence. Kemble implies

she may have attempted to withdraw her guilty plea had she known her sentence

would be longer than 6-12 months. Other than those specific complaints, Kemble

generally alleges that Mr. Beall “failed to do his job on [her] case” and that “this

is not the first time Terry has let [her] down.” Pro se document filed 3/19/12 at

1. Kemble’s attorney in her Anders brief points out that Kemble’s 21-month




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sentence is both procedurally and substantively reasonable, and there is no basis

for her to challenge that sentence.

       With respect to her suggestion that her counsel was ineffective, we have

stated:

       [i]neffective assistance of counsel claims should be brought in
       collateral proceedings, not on direct appeal. Such claims brought on
       direct appeal are presumptively dismissible, and virtually all will be
       dismissed.

United States v. Galloway, 

, 1240 (10th Cir. 1995) (en banc).

“[E]ven if the record appears to need no further development, the claim should

still be presented first to the district court in collateral proceedings . . . so the

reviewing court can have the benefit of the district court’s views.” 

only a slight chance that we will forego the development of

a factual record or at least an opinion by the district court on the subject in the

first instance.” 

a review of the Anders brief, Kemble’s

submissions, and the record in this case, we see no reason to depart from this

general rule. See United States v. Delacruz-Soto, 

, 1168 (10th Cir.

2005). This direct appeal is therefore not the proper vehicle for Kemble to

challenge her attorney’s effectiveness.

       As for Kemble’s sentence, we agree with her counsel that there is no

nonfrivolous basis for attacking it. Before determining the sentence to be

imposed after revocation of supervised release, a district court must consider both


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the policy statements contained in Chapter 7 of the Guidelines and the factors

provided in 18 U.S.C. § 3553(a). United States v. Steele, 

, 808 (10th

Cir. 2010). In explaining the sentence imposed, the court “is not required to

consider individually each factor listed in § 3553(a), nor is it required to recited

any magic words to show us that it fulfilled its responsibility to be mindful of the

factors that Congress has instructed it to consider.” 

omitted). Additionally, although the court must consider the Chapter 7 policy

statements, which “recommend a range of imprisonment upon revocation of

supervised release,” the recommendation is “advisory rather than mandatory in

nature.” United States v. Kelley, 

, 1305 (10th Cir. 2004)

(quotations omitted).

      “Our review of the court’s application of these factors is deferential. ‘[W]e

will not reverse a revocation sentence imposed by the district court if it can be

determined from the record to have been reasoned and reasonable.’” United

States v. McBride, 

, 1232 (10th Cir. 2011) (quoting United States v.

Contreras-Martinez, 

, 1241 (10th Cir. 2005)). A “reasoned”

sentence is procedurally reasonable and a “reasonable” sentence is substantively

reasonable. 

by the district court was within the advisory

Guidelines range and was selected by the court after consideration of the

§ 3553(a) factors. Consequently, we conclude that the sentence imposed was both

                                          -6-
procedurally and substantively reasonable. See Gall v. United States, 

, 51 (2007).



                                CONCLUSION

      We agree with Kemble’s counsel that no meritorious basis exists for

Kemble to appeal either her conviction or sentence. We therefore GRANT her

counsel’s motion to withdraw and DISMISS this appeal.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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