United States v. Pasley

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 22, 2020
• Docket: 19-6148
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT April 22, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 19-6148 v. (D.C. No. 5:08-CR-00289-R-1) (W.D. Okla.) SKYLER LEE PASLEY,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.** _________________________________

On July 21, 2009, Defendant was sentenced to a term of 130 months’

incarceration followed by three years of supervised release for possession with intent

to distribute marijuana in violation of 21 U.S.C. § 841 (b)(1)(D), three counts of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), interference with

commerce by robbery in violation of 18 U.S.C. § 1951(a), and brandishing a firearm

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Defendant’s

term of supervised release commenced on November 27, 2018.

On September 5, 2019, the United States Probation Office filed a petition for a

revocation of Defendant’s supervised release based on three alleged violations. These

violations included: (1) violation of the mandatory condition that Defendant shall not

commit another crime; (2) violation of the standard condition that Defendant shall not

associate with any persons engaged in criminal activity; and (3) violation of the

standard condition that Defendant shall not associate with any persons convicted of a

felony. Based on these violations, the advisory guideline range for Defendant’s

revocation sentence was 12 to 18 months’ imprisonment and up to 60 months of

supervised release minus any term of incarceration imposed.

On September 16, 2019, the district court held Defendant’s final revocation

hearing. At the hearing, Defendant stipulated to committing the violations listed in the

petition for revocation. Probation recommended a sentence of 18 months’

imprisonment, while Defendant requested a sentence of six months. The district court

ultimately imposed a low-end guideline sentence of 12 months’ incarceration followed

by 48 months of supervised release.

Defendant now appeals and argues his sentence is procedurally and

substantively unreasonable. Counsel for Defendant filed an Anders brief and moved

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

did not file a response to the Anders brief. The Government declined to submit a brief.

2 Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to withdraw

and dismiss this appeal as wholly frivolous.

***

We review a revocation sentence for reasonableness applying a deferential

abuse-of-discretion standard. United States v. McBride, 633 F.3d 1229, 1232 (10th

Cir. 2011). Reasonableness review has both a procedural and substantive component.

United States v. Lewis, 625 F.3d 1224, 1231 (10th Cir. 2010). A sentence may be

procedurally unreasonable if the district court fails to calculate (or improperly

calculates) the Guideline range, treats the Guideline range as mandatory, fails to

consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or

fails to adequately explain the sentence. Id. (citing Gall v. United States, 552 U.S. 38,

51 (2007)). With respect to substantive reasonableness, we consider “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).” Id. (quoting United States v. Alapizco-

Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008)). A sentence within the properly

calculated guideline is entitled to a rebuttable presumption of reasonableness. Id.

Upon review of the record and counsel’s Anders brief, we find there is no non-

frivolous basis for Defendant to argue his low-end guideline sentence is procedurally

or substantively unreasonable. In fashioning the appropriate sentence, the district court

stated it “read the presentence report” in Defendant’s case and considered the parties’

arguments, “the sentencing guidelines, which are advisory[,]” and “the sentencing

factors set forth in 18 U.S. Code, 3553.” ROA Vol. 3 at 30. The district court then

3 explained Defendant was “associating and affiliating with people [he] shouldn’t be

involved with.” Id. Defendant also “helped and participated in” a drug deal, in “clear

violation” of his supervised release. Id. at 30–31. While the district court

acknowledged it was “pleased that [Defendant] had a job” and had “reported

appropriately to the probation office,” the court explained there had to “be a

consequence” for Defendant’s violations. Id. at 31. Accordingly, the court determined

a sentence of 12 months’ imprisonment followed by 48 months of supervised release

was appropriate. We see no basis to reverse the district court’s reasoned judgment.

Accordingly, counsel’s motion to withdraw is GRANTED and this appeal is

DISMISSED.

Entered for the Court

Bobby R. Baldock Circuit Judge