Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-4050 (D.C. No. 2:23-CR-00092-TS-1) JAMES WESTON FAWCETT, (D. Utah)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________
James Fawcett appeals his 168-month sentence for distribution of child
pornography. Defense counsel has 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”). Fawcett filed several
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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 2
pro se responses to the Anders brief, 1 and the government declined to file a brief. We
have reviewed the Anders brief, Fawcett’s pro se filings, and the record to determine
whether Fawcett’s appeal is wholly frivolous. See United States v. Calderon, 428
F.3d 928, 930 (10th Cir. 2005). Because we conclude that it is, we dismiss the appeal
and grant defense counsel’s motion to withdraw. See Anders, 386 U.S. at 744. We
also deny Fawcett’s request to appoint new counsel.
Background
In 2023, Fawcett pleaded guilty to distributing child pornography. The
Presentence Investigation Report (PSR) calculated a total offense level of 34 under
§ 2G2.2 of the United States Sentencing Guidelines (U.S.S.G. or the Guidelines), a
criminal history category of II, and a resulting Guidelines sentencing range of 168 to
210 months. The PSR also recommended several special conditions of supervised
release, including an alcohol prohibition, a requirement that Fawcett obtain a
substance-abuse evaluation and treatment, and a requirement that Fawcett take his
mental-health medications.
At sentencing, defense counsel objected to the use of U.S.S.G. § 2G2.2,
arguing that the guideline was the result of a Congressional directive to impose harsh,
1 Fawcett submitted a timely Anders response and two other letters, including a request to be appointed new appellate counsel. We accept and consider all three. As with all pro se filings, we will liberally construe them, but we will not craft arguments on Fawcett’s behalf. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 2 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 3
irrational sentences rather than the result of reasoned empiricism. Defense counsel
also objected to the three special conditions of supervised release mentioned above.
The district court overruled these objections. It acknowledged the issues with
§ 2G2.2 but declined to set aside the whole section or the resulting sentencing range.
And it found a basis for the special conditions in Fawcett’s history and
characteristics, which included marijuana use, diagnoses of depression and ADHD,
and charges for driving under the influence, drinking alcohol in a vehicle, and
impaired driving. The district court then imposed a 168-month sentence, the low end
of the Guidelines range, and a life term of supervised release, including the three
objected-to special conditions.
Fawcett appeals. 2
Analysis
In the Anders brief, defense counsel asserts that there is no nonfrivolous basis
on which to appeal Fawcett’s sentence. The Anders brief addresses whether Fawcett
has any nonfrivolous arguments to challenge (1) the substantive reasonableness of his
sentence; (2) the three special conditions of supervised release; and (3) whether three
treatment conditions of supervised release improperly delegate authority to a
probation officer. In his pro se responses, Fawcett argues that he was harshly
2 Fawcett’s plea agreement included an appellate waiver, but after he became dissatisfied with retained plea counsel and obtained new appointed counsel, the parties renegotiated, and Fawcett withdrew his waiver of his right to appeal. And the government does not seek to invoke any waiver here. See Calderon, 428 F.3d at 930– 31 (explaining that appeal “waiver is waived when the government . . . neglects to invoke the waiver in this [c]ourt”). 3 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 4
sentenced, poorly represented by counsel below, and unfairly attacked by a letter that
impacted the results of his psychosexual evaluation. We see overlap in the Anders
brief’s substantive-reasonableness argument and Fawcett’s complaint of a harsh
sentence and address those issues together. We next address the two remaining
Anders brief issues and then consider Fawcett’s other responses.
I. Substantive Reasonableness of the Sentence
The Anders brief begins with a potential substantive-reasonableness challenge
to Fawcett’s sentence, based on U.S.S.G. § 2G2.2. “Substantive review ‘involves
whether the length of the sentence is reasonable given all the circumstances of the
case in light of the factors set forth in 18 U.S.C. § 3553(a).’” United States v.
Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008) (quoting United States v.
Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007)). We typically review the substantive
reasonableness of sentences for abuse of discretion. Id. at 1214. And “we presume
that a sentence within the properly calculated [G]uidelines range is reasonable.”
United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019).
Section 2G2.2 governs sentences for child-pornography-distribution offenses,
setting the base offense level at either 18 or 22. It then provides various offense-level
increases, such as: prepubescent minors (two levels), knowing distribution (two
levels), material with sadistic or masochistic conduct (four levels), use of a computer
(two levels), and more than 600 images (five levels). Put simply, § 2G2.2 results in
very high offense levels. United States v. Grigsby, 749 F.3d 908, 910 (10th Cir.
2014) (“[Section] 2G2.2’s sentencing enhancements ‘routinely result in Guidelines
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projections near or exceeding the statutory maximum, even in run-of-the-mill
cases.’” (quoting United States v. Dorvee, 616 F.3d 174, 186 (2d Cir. 2010))).
Standing alone, that would not be cause for concern, but “the Commission did not use
[its typical] empirical approach in formulating the Guidelines for child pornography.”
Dorvee, 616 F.3d at 184. Instead, Congress has directed the Sentencing Commission
to amend § 2G2.2 several times, “each time recommending harsher penalties.” Id.
The Anders brief cites many cases in which courts have expressed concern
about § 2G2.2’s lack of empirical foundation, citing the risk of running afoul of the
§ 3553(a) factors. See, e.g., id. at 188 (calling § 2G2.2 “an eccentric Guideline of
highly unusual provenance which, unless carefully applied, can easily generate
unreasonable results”); United States v. Stone, 575 F.3d 83, 97 (1st Cir. 2009)
(affirming sentence based on § 2G2.2 but noting “the sentencing [G]uidelines at issue
are in our judgment harsher than necessary”). But the Anders brief also acknowledges
that this circuit has rejected empirical challenges to § 2G2.2. United States v.
Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015). So “we apply the presumption of
reasonableness to sentences based on [§] 2G2.2, regardless of its alleged lack of
empirical support.” Id.
We agree with the Anders brief that the district court did not abuse its
discretion in relying on § 2G2.2. The PSR used § 2G2.2 to calculate Fawcett’s
offense level of 34—a base offense level of 22 with enhancements for prepubescent
minors, knowing distribution, material with sadistic or masochistic conduct, use of a
computer, and 600 or more images. At sentencing, Fawcett asked the district court to
5 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 6
divert from § 2G2.2 and give it little precedential weight. The district court overruled
the objection but acknowledged the value of the argument and noted that it would
consider the argument with the § 3553 factors when determining the sentence. Based
on a Guidelines range of 168 to 210 months, the district court imposed a sentence of
168 months. This within-Guidelines sentence is entitled to a presumption of
reasonableness and, as in Franklin, an empirical challenge to § 2G2.2 and its
harshness cannot overcome this presumption. 785 F.3d at 1370.
Nor do we see any other basis on which Fawcett could rebut this presumption
of reasonableness, either in the record or in Fawcett’s pro se filings. Thus, any
challenge to the substantive reasonableness of the sentence would be frivolous.
II. Special Conditions of Supervised Release
Next, the Anders brief discusses a potential challenge to the three special
conditions of supervised release that Fawcett challenged below. We would review
objected-to special conditions for abuse of discretion. United States v. Mike, 632 F.3d
686, 691 (10th Cir. 2011).
Conditions of release need to “be ‘reasonably related’ to the nature and
circumstances of the offense, the defendant’s history and characteristics, the
deterrence of criminal conduct, the protection of the public from further crimes of the
defendant, or the defendant’s educational, vocational, medical, or other correctional
needs.” United States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015)
(quoting 18 U.S.C. § 3583(d)). To impose a special condition of supervised release, a
sentencing court must “make an individualized assessment.” Id. at 1237. This
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individualized-assessment requirement is not onerous; “[a] sentencing court need not
provide reasons for each specific special condition that it imposes.” Mike, 632 F.3d at
693. Instead, the court “must ‘only provide a generalized statement of its reasoning.’”
Id. (quoting United States v. Hahn, 551 F.3d 977, 982–83 (10th Cir. 2008)).
The record demonstrates that the district court satisfied this requirement. As to
the special condition prohibiting Fawcett from using alcohol, possessing alcohol, or
“frequent[ing] businesses where alcohol is the chief item of order,” R. vol. 1, 60,
defense counsel argued that Fawcett had no issues with alcohol and could make a
living as a bartender. But the record supports the district court’s statement that
Fawcett’s criminal history—which includes alcohol misuse—justified this condition.
The district court thus satisfied its obligation to provide a generalized statement of its
reasoning for this condition, Mike, 632 F.3d at 693, based on Fawcett’s history,
Martinez-Torres, 795 F.3d at 1236.
As to the special condition that requires Fawcett to complete substance-abuse
treatment, defense counsel argued that Fawcett’s self-reported use of medical
marijuana did not justify this condition. The district court disagreed, explaining that
Fawcett “has numerous convictions related to marijuana use as well as charges
related to driving under the influence.” R. vol. 3, 81. With this explanation, the
district court again met its obligation.
Finally, defense counsel took issue with the mental-health special condition,
which requires Fawcett to “take any mental-health medications as prescribed,”
R. vol. 1, 60, because Fawcett believed he could manage his mental health without
7 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 8
court monitoring. The district court disagreed and, based on Fawcett’s diagnoses of
depression and ADHD, stated that Fawcett could benefit from professional support.
This explanation provides the requisite individualized assessment—no more is
required.
In sum, we agree with the Anders brief. Any appeal challenging the special
conditions would be frivolous because the district court provided sufficient
individualized justification by linking each condition to Fawcett’s history and
characteristics.
III. Improper Delegation
Last, the Anders brief considers whether the district court improperly
delegated its sentencing authority to the probation office in imposing three treatment-
related conditions of supervised release. Fawcett did not raise this argument below,
so we would review for plain error. Mike, 632 F.3d at 691–92. “To establish plain
error, the defendant must show: ‘(1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (quoting United States v. Gonzalez-Huerta,
403 F.3d 727, 732 (10th Cir. 2005) (en banc)).
This impermissible-delegation argument arises from the Constitution: “Article
III of the United States Constitution confers the authority to impose punishment on
the judiciary, and the judiciary may not delegate that authority to a nonjudicial
officer.” United States v. Bear, 769 F.3d 1221, 1230 (10th Cir. 2014). Functionally,
this means that a court may delegate “ministerial acts or support services related to
8 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 9
the punishment imposed” to a probation officer, but it may not “allow the officer to
decide the nature or extent of the defendant’s punishment.” Id. (quoting Mike, 632
F.3d at 695). “This inquiry focuses on the liberty interest affected by the probation
officer’s discretion.” Id. Specifically, “allowing a probation officer to make the
decision to restrict a defendant’s significant liberty interest constitutes an improper
delegation.” Id. (quoting Mike, 632 F.3d at 695).
Here, the Anders brief points us to three treatment conditions that delegate
some authority to a probation officer. First, the district court required Fawcett to
“participate in and successfully complete sex-offender treatment, to include a risk
assessment, at a program approved by the U.S. Probation Office.” R. vol. 1, 60. This
condition gives the probation office authority to approve of Fawcett’s treatment
program, and we have approved treatment conditions that delegate even more
authority than this. See United States v. Englehart, 22 F.4th 1197, 1206–07, 1216–17
(10th Cir. 2022) (finding no impermissible delegation in treatment condition that
authorized probation to communicate with provider and obtain evaluation results and
required probation’s permission to discontinue treatment); Bear, 769 F.3d at 1230–31
(finding no plain error where district court ordered sex-offender mental-health
treatment as directed by probation). So we detect no error here, much less a plain
one.
Second and third, the district court required Fawcett to “participate in and
successfully complete” evaluation and treatment for substance abuse and mental
health “under a copayment plan, as directed by the U.S. Probation Office.” R. vol. 1,
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60. We have previously found no plain error in this “as directed by” language. See
Bear, 769 F.3d at 1230–31. Similarly, the Ninth Circuit found no impermissible
delegation in a drug-treatment requirement that used the “as directed by” language
present here, reasoning that the condition mandated the treatment and merely allowed
probation “to perform the ministerial tasks of choosing the appropriate program and
facilitating [the defendant’s] attendance.” United States v. Stephens, 424 F.3d 876,
882 (9th Cir. 2005). We accordingly see no plain error here because the district court
delegated only “ministerial acts or support services” to the probation officer
overseeing Fawcett’s substance-abuse and mental-health treatment. Id. at 1230
(quoting Mike, 632 F.3d at 695). Thus, we agree with the Anders brief that any appeal
challenging the treatment conditions would be frivolous.
IV. Fawcett’s Responses
Fawcett first claims he was inadequately represented below, asserting that he
“was only represented fairly [three] of the 13 months of [his] case.” Aplt. Supp.
Resp. 1. Fawcett goes on to explain that he fired his previous attorneys and secured
new counsel before sentencing. Because Fawcett asserts that he was fairly
represented by his new counsel at sentencing, we do not see this as a nonfrivolous
ground for appeal. And, in any event, “[i]neffective assistance of counsel claims
should be brought in collateral proceedings, not on direct appeal.” United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). 3
3 Our review of the record convinces us that this is not the unusual case that allows us to resolve an ineffective-assistance-of-counsel claim without the district 10 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 11
Fawcett also argues that a letter from his sister assaulted his character and
influenced the results of his psychosexual evaluation. On this point, the Anders brief
explains that after the magistrate judge ordered a psychosexual exam, the examiner
considered in part a letter from Fawcett’s sister in which the sister claimed Fawcett
had abused her for years. Fawcett’s mother later wrote her own letter to the district
court, refuting these accusations; but for unknown reasons, the letter from Fawcett’s
mother did not go to the psychosexual evaluator. At sentencing, defense counsel
explained that Fawcett disputed his sister’s accusations and noted that she was not a
victim in this case. Defense counsel thus asked the district court to take the sister’s
letter with a grain of salt and to defer to Fawcett’s future treatment providers.
The district court did just that. It mentioned the results of Fawcett’s
psychosexual evaluation when discussing his history and characteristics and recited
the evaluator’s conclusion that Fawcett should be imprisoned and complete sex-
offender, mental-health, and substance-abuse treatment. Fawcett does not take issue
with any of these conclusions. So the sister’s letter is, at most, an improper filing that
affected the evaluation but did not lead to any unreasonable district-court
conclusions. Any appeal based on the letter would therefore be frivolous.
As a final matter, Fawcett asks for a new attorney to review his direct appeal.
To the extent Fawcett seeks a new attorney because his current attorney has filed an
Anders brief, “we note that the mere filing of such a brief does not provide a
court first developing and evaluating the factual record. See Galloway, 56 F.3d at 1240–41. 11 Appellate Case: 24-4050 Document: 40-1 Date Filed: 04/21/2025 Page: 12
defendant with the right to the appointment of a new attorney.” United States v.
Delacruz-Soto, 414 F.3d 1158, 1168 n.6 (10th Cir. 2005). Instead, we appoint
counsel when we find “legal points arguable on their merits.” Anders, 386 U.S. at
744. Because we do not find any arguable legal points here, we reject Fawcett’s
request for new counsel.
Conclusion
Because we see no nonfrivolous grounds for appealing Fawcett’s sentence, we
dismiss the appeal, grant defense counsel’s motion to withdraw, and deny the motion
for new counsel.
Entered for the Court
Nancy L. Moritz Circuit Judge