F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 30 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 00-3044 v. (D.C. No. 98-CR-10050) (D. Kan.) MICHAEL L. HILL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
On December 7, 1998, Defendant-Appellant Michael L. Hill (“Hill”) pled
guilty to a charge of making a false statement in violation of 18 U.S.C.
§ 1001(a)(2) in the United States District Court for the District of Kansas. The
district court sentenced Hill to four months incarceration followed by a three year
term of supervised release. In connection with his sentence, Hill was also
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 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 This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. 36.3. required to undergo drug testing, to pay restitution, to provide access to any
financial information requested by the United States Probation Office, and to
report any purchases over $500 in the month that the purchase was made.
Hill appeared before the district court on August 30, 1999 on a motion for
revocation of his supervised release. Hill admitted to the violations of the
supervised release alleged in the motion. The district court informed Hill that he
had the option of either (1) serving a six month sentence if his supervised release
were revoked that day, or (2) reinstatement of the supervised release, subject to
modified conditions, with the promise that any further violations would result in a
nine month sentence. Hill opted for reinstatement. The district court modified
the conditions of Hill’s supervised release to require that he participate in a
mental health program to be determined by the United States Probation Office.
The United States Probation Office again filed a petition to revoke Hill’s
supervised release, and the district court held an evidentiary hearing on February
7, 2000. The court found that Hill had violated two conditions of his supervised
release, in that he had failed to participate successfully in mental health
counseling and had failed to provide information requested by the Probation
Office pertaining to his financial affairs. Based on these findings, the district
court revoked the supervised release and sentenced Hill to nine months
confinement.
-2- Hill’s attorney has determined that Hill’s appeal of the district court’s
decision to revoke his supervised release and impose a nine month confinement is
without merit. Hill’s attorney has therefore filed a motion to withdraw as
attorney of record and a corresponding Anders brief outlining Hill’s apparent
grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Anders
requires that such a brief must refer to “anything in the record that might arguably
support the appeal.” Id. Consistent with this requirement, counsel informs us
that appellant wishes to allege that there was insufficient evidence presented at
the February 7, 2000 hearing to warrant revocation of his supervised release.
(See Aplt. Br. at 5-6.) Hill also wishes to allege that the district court judge was
biased against him when he sentenced Hill to nine months confinement at the
February 7, 2000 hearing, and that the judge therefore improperly failed to recuse
himself pursuant to 28 U.S.C. § 455(a). (See Aplt. Br. at 7-9.) Hill asserts that
the judge’s bias against him is evidenced by the fact that the district court judge
had predetermined the nine month sentence imposed at the February 7, 2000
hearing six months earlier at the August 30, 1999 hearing.
Hill has filed a brief on his own behalf raising additional arguments on
appeal. 1 In addition to the claims set forth in the Anders brief, Hill asserts that
1 We grant Appellee’s motion to file a supplemental brief in reply to Hill’s response to his defense counsel’s Anders brief.
-3- his probation officer was prejudiced against him and that she: (1) conspired with
the judge “behind closed doors” at the August 30, 1999 hearing; (2) improperly
questioned him about various expenditures; (3) conspired with his mental health
doctor to make it difficult for him to comply with the requirement that he
participate in mental health counseling; and (4) made contact with the local police
in connection with a lawsuit that he had filed against that police department.
Finally, Hill contends that his counsel was ineffective and that he therefore
entered into an involuntary guilty plea.
We review the district court’s decision to revoke Hill’s supervised release
under an abuse of discretion standard. See United States v. Rockwell, 984 F.2d
1112, 1114 (10th Cir. 1993), abrogated on other grounds by Johnson v. United
States, No. 99-5153, 2000 WL 574359 (U.S. May 15, 2000). We review the
district court’s factual findings in connection with the decision to revoke a
defendant’s supervised release for clear error. See United States v. Hall, 984 F.2d
387, 390 (10th Cir. 1993). In deciding to revoke Hill’s supervised release, the
district court concluded that Hill had violated two conditions of his parole.
Specifically, the district court found that Hill (1) had failed to participate
successfully in an approved mental health treatment program because he had
failed to appear on two occasions and was late on two other occasions; and (2)
had failed to provide his probation officer with financial information concerning
-4- the sale of his car. (See Aplt. App. Vol. II at 77-78.) Our review of the record in
this case indicates that there is sufficient evidence to support the district court’s
factual findings concerning Hill’s violations of the conditions of his supervised
release. We therefore hold that the district court did not abuse its discretion in
revoking Hill’s supervision.
With respect to Hill’s claim of bias on the part of the judge, we find that it
is also without merit. We review the denial of a motion to recuse pursuant to
§ 455(a) under an abuse of discretion standard. See United States v. Lowe, 106
F.3d 1498, 1504 (10th Cir. 1997). As an initial matter, we must observe that Hill
did not file a motion requesting that the district court judge recuse himself from
the case at the time of the February 7, 2000 hearing. Given that Hill was aware of
the alleged basis for the district court’s bias (i.e., the predetermination of his nine
month sentence at the August 30, 1999 hearing) prior to the February 7, 2000
hearing, we are unsympathetic to the argument that the district court judge should
have recused himself sua sponte. In any event, we cannot conclude the district
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 30 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 00-3044 v. (D.C. No. 98-CR-10050) (D. Kan.) MICHAEL L. HILL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
On December 7, 1998, Defendant-Appellant Michael L. Hill (“Hill”) pled
guilty to a charge of making a false statement in violation of 18 U.S.C.
§ 1001(a)(2) in the United States District Court for the District of Kansas. The
district court sentenced Hill to four months incarceration followed by a three year
term of supervised release. In connection with his sentence, Hill was also
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 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. 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. 36.3. required to undergo drug testing, to pay restitution, to provide access to any
financial information requested by the United States Probation Office, and to
report any purchases over $500 in the month that the purchase was made.
Hill appeared before the district court on August 30, 1999 on a motion for
revocation of his supervised release. Hill admitted to the violations of the
supervised release alleged in the motion. The district court informed Hill that he
had the option of either (1) serving a six month sentence if his supervised release
were revoked that day, or (2) reinstatement of the supervised release, subject to
modified conditions, with the promise that any further violations would result in a
nine month sentence. Hill opted for reinstatement. The district court modified
the conditions of Hill’s supervised release to require that he participate in a
mental health program to be determined by the United States Probation Office.
The United States Probation Office again filed a petition to revoke Hill’s
supervised release, and the district court held an evidentiary hearing on February
7, 2000. The court found that Hill had violated two conditions of his supervised
release, in that he had failed to participate successfully in mental health
counseling and had failed to provide information requested by the Probation
Office pertaining to his financial affairs. Based on these findings, the district
court revoked the supervised release and sentenced Hill to nine months
confinement.
-2- Hill’s attorney has determined that Hill’s appeal of the district court’s
decision to revoke his supervised release and impose a nine month confinement is
without merit. Hill’s attorney has therefore filed a motion to withdraw as
attorney of record and a corresponding Anders brief outlining Hill’s apparent
grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Anders
requires that such a brief must refer to “anything in the record that might arguably
support the appeal.” Id. Consistent with this requirement, counsel informs us
that appellant wishes to allege that there was insufficient evidence presented at
the February 7, 2000 hearing to warrant revocation of his supervised release.
(See Aplt. Br. at 5-6.) Hill also wishes to allege that the district court judge was
biased against him when he sentenced Hill to nine months confinement at the
February 7, 2000 hearing, and that the judge therefore improperly failed to recuse
himself pursuant to 28 U.S.C. § 455(a). (See Aplt. Br. at 7-9.) Hill asserts that
the judge’s bias against him is evidenced by the fact that the district court judge
had predetermined the nine month sentence imposed at the February 7, 2000
hearing six months earlier at the August 30, 1999 hearing.
Hill has filed a brief on his own behalf raising additional arguments on
appeal. 1 In addition to the claims set forth in the Anders brief, Hill asserts that
1 We grant Appellee’s motion to file a supplemental brief in reply to Hill’s response to his defense counsel’s Anders brief.
-3- his probation officer was prejudiced against him and that she: (1) conspired with
the judge “behind closed doors” at the August 30, 1999 hearing; (2) improperly
questioned him about various expenditures; (3) conspired with his mental health
doctor to make it difficult for him to comply with the requirement that he
participate in mental health counseling; and (4) made contact with the local police
in connection with a lawsuit that he had filed against that police department.
Finally, Hill contends that his counsel was ineffective and that he therefore
entered into an involuntary guilty plea.
We review the district court’s decision to revoke Hill’s supervised release
under an abuse of discretion standard. See United States v. Rockwell, 984 F.2d
1112, 1114 (10th Cir. 1993), abrogated on other grounds by Johnson v. United
States, No. 99-5153, 2000 WL 574359 (U.S. May 15, 2000). We review the
district court’s factual findings in connection with the decision to revoke a
defendant’s supervised release for clear error. See United States v. Hall, 984 F.2d
387, 390 (10th Cir. 1993). In deciding to revoke Hill’s supervised release, the
district court concluded that Hill had violated two conditions of his parole.
Specifically, the district court found that Hill (1) had failed to participate
successfully in an approved mental health treatment program because he had
failed to appear on two occasions and was late on two other occasions; and (2)
had failed to provide his probation officer with financial information concerning
-4- the sale of his car. (See Aplt. App. Vol. II at 77-78.) Our review of the record in
this case indicates that there is sufficient evidence to support the district court’s
factual findings concerning Hill’s violations of the conditions of his supervised
release. We therefore hold that the district court did not abuse its discretion in
revoking Hill’s supervision.
With respect to Hill’s claim of bias on the part of the judge, we find that it
is also without merit. We review the denial of a motion to recuse pursuant to
§ 455(a) under an abuse of discretion standard. See United States v. Lowe, 106
F.3d 1498, 1504 (10th Cir. 1997). As an initial matter, we must observe that Hill
did not file a motion requesting that the district court judge recuse himself from
the case at the time of the February 7, 2000 hearing. Given that Hill was aware of
the alleged basis for the district court’s bias (i.e., the predetermination of his nine
month sentence at the August 30, 1999 hearing) prior to the February 7, 2000
hearing, we are unsympathetic to the argument that the district court judge should
have recused himself sua sponte. In any event, we cannot conclude the district
court judge erred in failing to recuse himself because Hill has not shown bias.
“‘[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.’” Id. (quoting Liteky v.
-5- United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994)).
Because we find no evidence of a “deep-seated favoritism or antagonism” on the
part of the trial judge in this case, we conclude that it was entirely permissible for
the judge to refer to the August 30, 1999 sentencing hearing in determining Hill’s
sentence at the February 7, 2000 hearing.
We further conclude that Hill is not entitled to relief based on any of his
allegations against his probation officer. Because the United States Probation
Office is a branch of the federal judiciary, and a probation officer serves as “an
investigatory and supervisory arm” of the sentencing court, see United States v.
Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (citation and quotations omitted), we
are doubtful that a probation officer could conspire with a sentencing judge by
making sentencing recommendations. Regardless, Hill does not indicate the
evidentiary basis for his assertion that his probation officer conspired with the
judge, and, without some indicia of reliability, we cannot conclude that the
allegation has merit. Hill’s remaining claims against the probation officer are
conclusory and all appear to pertain to actions taken by the probation officer
within the normal scope of her duties supervising the defendant. We therefore
find that they do not warrant reversal either.
Finally, we find that we lack jurisdiction over Hill’s claim that his trial
counsel was ineffective. This case is only an appeal of the district court’s
-6- decision to revoke Hill’s supervised release (see Doc. 76), and we are therefore
without jurisdiction to consider the voluntariness of Hill’s guilty plea.
For the reasons stated above, we AFFIRM the judgment and sentence of the
district court and GRANT counsel’s motion to withdraw.
ENTERED FOR THE COURT
David M. Ebel Circuit Judge
-7-