United States v. Sink

Opinion

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

FOR THE TENTH CIRCUIT January 29, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-8092 (D.C. No. 1:18-CR-00037-NDF-2) DIANE MARIE SINK, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________

Diane Sink appeals after pleading guilty to making false statements in relation

to health care. Her counsel moves for leave to withdraw in a brief filed pursuant to

Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C.

§ 1291, we dismiss the appeal and grant counsel’s motion to withdraw.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I

Sink pled guilty to making false statements in relation to health care, pursuant

to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C) capping her prison sentence at

37 months. A Presentence Investigation Report recommended a Guidelines range of

46-57 months’ imprisonment based on a total offense level of 23 and a criminal

history category of I. Consistent with the plea agreement, Sink received a sentence

of 37 months’ incarceration, three years of supervised release, and $6,247,914.43 in

restitution.

II

If an attorney concludes after conscientiously examining a case that any appeal

would be frivolous, he may so advise the court and request permission to withdraw.

See Anders, 386 U.S. at 744. In conjunction with such a request, counsel must

submit a brief highlighting any potentially appealable issues and provide a copy to

the defendant. Id. The defendant may then submit a pro se brief. Id. If the court

determines that the appeal is frivolous upon careful examination of the record, it may

grant the request to withdraw and dismiss the appeal. Id. In this case, defense

counsel provided a copy of his Anders brief to Sink, but she did not file a pro se

brief.

Counsel’s Anders brief addresses the reasonableness of Sink’s sentence.

Because counsel does not distinguish between procedural or substantive

reasonableness, we analyze both. “We review sentences under an abuse of discretion

standard for procedural and substantive reasonableness.” United States v.

2 Washington, 634 F.3d 1180, 1184 (10th Cir. 2011). “Procedural review asks whether

the sentencing court committed any error in calculating or explaining the sentence.”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008).

“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).” Id. at 1215 (quotation omitted). We extend a “rebuttable presumption of

reasonableness to a below-guideline sentence.” United States v. Balbin-Mesa, 643

F.3d 783, 788 (10th Cir. 2011).

We agree with counsel that there is nothing in the record rebutting the

presumption that Sink’s sentence was reasonable. In imposing the 37-month term of

imprisonment, the district court considered the § 3553(a) factors and discussed at

length the two grounds for a variance presented by Sink: the nature and

circumstances of the offense, and her history and characteristics. Moreover, Sink’s

sentence is nine months shorter than the lowest sentence provided in the applicable

Guidelines range, and it is within the range to which she agreed in her plea

agreement. We conclude the district court did not abuse its discretion in sentencing

Sink.

3 III

For the foregoing reasons, we GRANT counsel’s request to withdraw and

DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge