Filed: Jan. 23, 2013
Latest Update: Feb. 12, 2020
Summary: FILED United States Court of Appeals Tenth Circuit January 23, 2013 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 12-5063 RONALD PAUL MCALLISTER, (D.C. No. 4:CR-04-00013-CVE-1) (N. D. Okla.) Defendant-Appellant. ORDER AND JUDGMENT* Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not
Summary: FILED United States Court of Appeals Tenth Circuit January 23, 2013 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 12-5063 RONALD PAUL MCALLISTER, (D.C. No. 4:CR-04-00013-CVE-1) (N. D. Okla.) Defendant-Appellant. ORDER AND JUDGMENT* Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not m..
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FILED
United States Court of Appeals
Tenth Circuit
January 23, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-5063
RONALD PAUL MCALLISTER, (D.C. No. 4:CR-04-00013-CVE-1)
(N. D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
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,
submitted without oral argument.
Defendant Ronald McAllister appeals from the district court’s decision to revoke
his supervised release and impose a twenty-four-month revocation sentence. McAllister’s
*
This order and judgment is not binding precedent, except under the doctrines of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 counsel has filed an Anders brief and a motion to withdraw as counsel. See
Anders v. California, 386 U.S. 738, 744 (1967). McAllister was provided with a copy of
the Anders brief, but has filed no response thereto. The government has declined to file a
brief. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we grant counsel’s motion to
withdraw and dismiss the appeal.
I
In March 2004, McAllister pleaded guilty to a single count of bank robbery, in
violation of 18 U.S.C. § 2113(a). McAllister was sentenced to a term of imprisonment of
eighty-four months, to be followed by a three-year term of supervised release.
McAllister completed his term of imprisonment and began his term of supervised
release on February 26, 2010. ROA, Vol. 1, at 22. On August 4, 2011, McAllister’s
probation officer filed an order on supervised release alleging that McAllister had
violated the terms of his supervised release on July 3, 2011, by operating a vehicle while
under the combined influence of alcohol and drugs, driving with a revoked driver’s
license, and leaving the scene of an accident involving damage. Id. at 23. On September
30, 2011, the district court modified the conditions of McAllister’s supervised release to
require him to enter and successfully complete up to thirty days of inpatient substance
abuse treatment, followed by ninety days of halfway house substance abuse treatment.
Id.
at 47.
On November 23, 2011, McAllister’s probation officer filed a second order on
supervised release alleging that McAllister had violated the modified conditions of his
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supervised release by being administratively discharged, due to misconduct, from the
halfway house substance abuse treatment. Supp. ROA, Vol. 1, at 15. McAllister
stipulated to that violation in open court. Id., Vol. 2, at 12.
On April 2, 2012, McAllister’s probation officer filed a third order on supervised
release alleging that “[o]n November 18, 2011, McAllister robbed the . . . same bank he
robbed in 2004 in his original offense.” Id., Vol. 1, at 23. According to the probation
officer, “McAllister was named in a one-count Indictment filed in the Northern District of
Oklahoma on December 6, 2011,” and “[h]e entered a guilty plea [in that case] on
January 11, 2012.”
Id. McAllister stipulated to the violation in open court on April 11,
2012.
Id., Vol. 2, at 17.
At the conclusion of the April 11, 2012 hearing, the district court revoked
McAllister’s supervised release and sentenced him to a term of imprisonment of twenty-
four months, to run consecutively to the sentence imposed in connection with his new
bank robbery conviction, and to be followed by a twelve-month term of supervised
release. Id. at 23. In doing so, the district court followed the advisory guideline
provisions without objection from either party, and it expressly considered the factors
outlined in 18 U.S.C. § 3553(a).
Id. at 19-23. Although McAllister’s counsel requested
that the revocation sentence be ordered to run concurrently with the sentence imposed in
connection with the new bank robbery, the district court rejected that request.
Id. at 20.
Judgment was entered in the case on April 13, 2012. McAllister filed a notice of
appeal that same day. His counsel has since filed with this court an Anders brief and a
3
motion to withdraw. Although McAllister was provided with a copy of the Anders brief,
he has filed no response to it.
II
Under Anders, defense counsel may “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 (10th Cir. 2005). In such a
case, “counsel must submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record.”
Id. The client is then permitted to
submit arguments to the court in response. We are then obligated to conduct
independently “a full examination of all the proceeding[s] to decide whether the case is
wholly frivolous.” United States v. Snitz,
342 F.3d 1154, 1158 (10th Cir. 2003) (internal
quotations omitted).
Having conducted such an examination in this case, we agree with McAllister’s
counsel that the appeal is wholly frivolous. To begin with, it is undisputed that
McAllister knowingly and voluntarily stipulated to each of the alleged violations of
supervised release, including, most notably, the allegation that he committed a bank
robbery. Consequently, it was not only within the district court’s discretion to revoke
McAllister’s term of supervised release and impose a revocation term of imprisonment
pursuant to 18 U.S.C. § 3583(e)(3), such action was mandated by § 7B1.3(a)(1) of the
United States Sentencing Guidelines.
In fashioning the specifics of McAllister’s revocation sentence, the district court
4
correctly, and without objection from either party, classified McAllister’s most serious
violation of supervised release (his bank robbery) as a Grade A violation under U.S.S.G.
§ 7B1.1(a)(1), and in turn determined that, under U.S.S.G. § 7B1.4(b)(1) and 18 U.S.C. §
3583(e)(3), twenty-four months was the maximum statutory prison sentence that could be
imposed upon revocation of McAllister’s supervised release (even though the
recommended range of imprisonment for McAllister under U.S.S.G. § 7B1.4(a), based on
a Grade A violation and a criminal history category of VI, was thirty-three to forty-one
months). The district court also expressly considered on the record, and again without
objection from either party, the factors outlined in 18 U.S.C. § 3553(a). After doing so,
the district court imposed the statutory maximum sentence of twenty-four months, to be
followed by a twelve-month term of supervised release. And, although McAllister’s
counsel requested that the revocation sentence be ordered to run concurrently with the
sentence imposed for McAllister’s bank robbery conviction, the district court properly
complied with the mandate of U.S.S.G. § 7B1.3(f) and ordered the revocation sentence to
run consecutively. Thus, in sum, there is no question that the sentence imposed by the
district court was both procedurally and substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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