United States v. Billy

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 1, 2020
• Docket: 20-7001
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 1, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-7001 (D.C. No. 6:15-CR-00042-RAW-1) LOWELL ANDREW BILLY, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________

Lowell Billy appeals the district court’s order revoking his supervised release

and sentencing him to 23 months in prison. Defense counsel filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967)

(stating that if after “conscientious examination” of record, counsel finds appeal

“wholly frivolous,” then counsel may move to withdraw and contemporaneously file

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

* After examining the brief, pro se filings, 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Billy filed a pro se response to the Anders brief,1 and the government declined to file

a brief. We have reviewed the Anders brief and Billy’s pro se filings and have

conducted a full examination of the record to determine whether Billy’s appeal is

wholly frivolous. See United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Because we find that it is, we dismiss the appeal and grant defense counsel’s motion

to withdraw. See Anders, 386 U.S. at 744.

We begin with the district court’s decision to revoke Billy’s supervised

release. A court “may . . . revoke a term of supervised release . . . if the court . . .

finds by a preponderance of the evidence that the defendant violated a condition of

supervised release.” 18 U.S.C. § 3583(e); see also United States v. Jones, 818 F.3d

1091, 1097 (10th Cir. 2016) (explaining that appellate courts review supervised-

release revocations for abuse of discretion). And here, Billy admitted that he violated

a condition of supervised release when he failed to “follow the instructions of” his

probation officer and then absconded from supervision. R. vol. 1, 34. In particular, as

the government alleged in the warrant for Billy’s arrest, he failed to contact his

probation officer for 40 days and his whereabouts were unknown. Accordingly, we

agree with defense counsel that any challenge to the revocation of Billy’s supervised

release would be wholly frivolous.

That leaves Billy’s sentence. When reviewing a sentence, we “first ensure that

the district court committed no significant procedural error.” Gall v. United States,

1 Though Billy’s response was untimely, we accepted his late filing. We further accepted his letter filed on September 22, 2020. 2 552 U.S. 38, 51 (2007). And “[i]f the district court’s decision is ‘procedurally sound,’

we ‘then consider the substantive reasonableness of the sentence imposed.’” United

States v. Lucero, 747 F.3d 1242, 1246 (10th Cir. 2014) (quoting Gall, 552 U.S. at

51).

As defense counsel explains in his Anders brief, because Billy did not raise

any procedural challenge below, he would be required to satisfy our plain-error

standard on appeal. See United States v. Romero, 491 F.3d 1173, 1177–78 (10th Cir.

2007). And here, there’s nothing in the record to indicate any procedural error

whatsoever, let alone one that meets our stringent plain-error test. The district court

could have sentenced Billy to six to 12 months under the United States Sentencing

Guidelines. See U.S.S.G. § 7B1.4(a). But the district court was also free to impose a

sentence of up to two years under § 3583(e)(3). And we discern no arguable legal or

factual error in the district court’s decision. It considered the nature and

circumstances of Billy’s violation along with Billy’s history and characteristics and

chose to impose a higher, 23-month sentence for this, Billy’s fourth supervised-

release revocation. See 18 U.S.C. § 3553(a)(1). Thus, any procedural challenge to

Billy’s sentence would be wholly frivolous.

We also agree with defense counsel’s Anders brief that any challenge to the

substantive reasonableness of Billy’s sentence would be frivolous. Substantive

reasonableness depends on “whether the length of the sentence is reasonable given all

the circumstances of the case in light of the factors set forth in [§ 3553(a)].” United

States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008) (quoting United

3 States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007)). We apply an abuse-of-

discretion standard when reviewing a sentence for substantive reasonableness, “a

standard requiring ‘substantial deference to district courts.’” United States v.

Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quoting United States v. Sells, 541

F.3d 1227, 1237 (10th Cir. 2008)). And because Billy’s 23-month sentence falls

within the statutorily permitted range, we presume his sentence is substantively

reasonable. See Alapizco-Valenzuela, 546 F.3d at 1215.

Billy “may rebut this presumption by showing that his sentence is

unreasonable in light of” the § 3553(a) factors. Id. And he attempts to do so in his pro

se response, recounting the facts underlying his third and fourth violations of

supervised release and then complaining that his sentence is too long. But we see

nothing in the record that could elevate Billy’s assertion of a too-long sentence from

mere complaint to valid substantive-unreasonableness argument. Instead, the record

supports the district court’s decision to impose the higher sentence based on Billy’s

history of violating his supervised release. Accordingly, we conclude that any

challenge to the substantive reasonableness of Billy’s sentence would be wholly

frivolous.

Finally, we agree with the Anders brief that any challenge to the special

condition of supervised release requiring Billy to obtain permission from his

probation officer before accessing the internet would be frivolous. We previously

rejected such a challenge when Billy appealed from the second revocation of his

4 supervised release. See United States v. Billy, 711 F. App’x 467, 474 (10th Cir. 2017)

(unpublished).

Because our examination of the record reveals no other nonfrivolous basis for

appeal, we dismiss the appeal and grant defense counsel’s motion to withdraw. See

Calderon, 428 F.3d at 930.

Entered for the Court

Nancy L. Moritz Circuit Judge