                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 October 31, 2014
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 14-2038
                                              (D.C. No. 1:99-CR-00505-JCH-1)
 BRYAN KEITH SMITH,                                       (D. N.M.)

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.

      The district court found Appellant Bryan Keith Smith violated the

conditions of his five-year term of supervised release and sentenced him to nine


      *
         This order and judgment is not binding precedent except under the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.
months’ imprisonment with no supervised release to follow. Mr. Smith appeals

revocation of his supervised release and imposition of imprisonment; however,

his attorney has filed an Anders brief and a request to withdraw as counsel, which

we treat as a motion to withdraw. See Anders v. California, 386 U.S. 738, 744

(1967). For the reasons set forth hereafter, we grant counsel’s motion to

withdraw and dismiss this appeal. Id.

                                   I. Background

      On May 1, 2000, Mr. Smith pled guilty to one count of a crime on an

Indian Reservation involving aggravated sexual abuse of a child, in violation of

18 U.S.C. §§ 1153, 2241(c), 2246(2)(A), and one count of a crime on an Indian

Reservation involving aggravated sexual abuse by force, in violation of 18 U.S.C.

§§ 1153, 2241(a), and 2246(2)(A). 1 He received a sentence of 120 months’

imprisonment and five years’ supervised release. In May 2009, Mr. Smith began

serving his supervised release. Thereafter, four petitions for revocation of his


      1
         While Mr. Smith’s counsel references documents to support the certain
facts in his brief on Mr. Smith’s prior conviction, initial sentence, and hearings
for revocation, he failed to provide those documents in the record designated for
appeal. Generally, “[w]hen the party asserting an issue fails to provide a record
sufficient for considering that issue, [this] court may decline to consider it.” 10th
Cir. R. 10.3(B). However, in this case, the absence of the record does not affect
our disposition of Mr. Smith’s appeal. This is because we assume his appellate
counsel’s representations with respect to the contents of those documents are
accurate, especially in the absence of any objections by either the government or
Mr. Smith as to those representations. Nevertheless, counsel is reminded that in
any future filing, any relied on and referenced portion of the record should be
designated and provided as part of the appeal record for our review.

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supervised release were filed and disposed of before the petition which is the

subject of this appeal. 2 On January 14, 2014, the government filed the instant

petition for revocation of supervised release, alleging Mr. Smith violated the

terms of his supervised release based on his termination from the Diersen

Charities Halfway House (halfway house) for his acts in falsely signing out for

medical appointments on November 21, 2013; November 25, 2013; December 18,

2013; and January 10, 2014.

      On February 25, 2014, the district court held a hearing on the government’s

petition to revoke Mr. Smith’s supervised release based on these violations. Mr.

Smith’s probation officer testified that, with respect to the four separate occasions

alleged in the petition, Mr. Smith signed out of the halfway house for medical

appointments but failed to provide its staff with the required documentation

establishing such appointments occurred, and, after the halfway house staff issued

a medical release, the two medical providers Mr. Smith claimed to have visited on

these dates told such staff Mr. Smith had not been at their medical offices on the

      2
         According to Mr. Smith’s counsel, these petitions were dated, alleged,
and disposed of as follows: 1) August 9, 2010 petition for revocation for using
illegal substances and failing to attend outpatient treatment, resulting in a
sentence of time served and a four-year term of supervised release; 2) October 19,
2010 petition for revocation for failing to remain at a reintegration reentry center,
resulting in a nine-month sentence and four-year term of supervised release; 3)
October 12, 2011 petition for revocation for failing to attend sex offender
treatment, resulting in a nine-month sentence and three-year term of supervised
release; and 4) March 26, 2013 petition for revocation for absconding from the
Diersen Charities Halfway House, resulting in a six-month sentence followed by a
one-year term of supervised release.

                                         -3-
dates indicated. She further testified that the halfway house terminated Mr.

Smith’s residency based on these violations. She also testified this was Mr.

Smith’s fifth revocation hearing. Mr. Smith testified on his own behalf, claiming

he did in fact attend medical appointments on the dates provided, gave the facility

the necessary documentation, and even called his probation officer on two

occasions to indicate he would be late returning to the halfway house after his

medical appointments. However, the probation officer, on questioning by the

district court, provided testimony the halfway house had a process to contest

incident reports or disciplinary actions and that Mr. Smith failed to avail himself

of such process.

      The district court found Mr. Smith violated the terms of his supervised

release by failing to reside at and complete the program at a residential reentry

center, as shown by his termination from the halfway house. It noted that in

terminating his residency, the halfway house staff contacted the named medical

providers and confirmed he did not have appointments on the dates in question. It

also pointed out Mr. Smith failed to contest such findings through the procedures

available to him. In imposing a nine-month sentence and no supervised release,

the district court noted the advisory United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) range was three to nine months and it was

sentencing him at the high end of that range, given Mr. Smith not only violated

the terms of his supervised release but had multiple prior violations and continued

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“to fail to take advantage of reintegration efforts and resources of the United

States Probation Office.”

                                       II. Discussion

      After Mr. Smith filed a timely notice of appeal, his appointed counsel, who

also represented him at the revocation hearing, filed an Anders appeal brief

explaining that, after a diligent examination of the record on appeal, no issues or

arguable or viable claims exist relating to Mr. Smith’s conviction or sentence

which would warrant an appeal. See Anders, 386 U.S. at 744. In support, counsel

points out the district court considered both parties’ evidence and, based on such

evidence, determined Mr. Smith violated his supervised release by falsely signing

out for medical appointments and imposed a sentence within the applicable

Guidelines range.

      Pursuant to Anders, this court gave Mr. Smith an opportunity to respond to

his counsel’s Anders brief. See id. On July 28, 2014, Mr. Smith filed a response,

in the form of a one-page letter, which fails to address the issues related to his

appeal but, instead, claims ineffective assistance of counsel and requests a thirty-

day extension and appointment of new counsel, without adequate reasoning in

support thereof. Thereafter, the government filed a notice of its intention not to

file an answer brief in this appeal.

      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. In reviewing a sentence imposed after revocation

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of supervised release, we review the district court’s factual findings for clear

error and its legal conclusions de novo. See United States v. Tsosie, 376 F.3d

1210, 1217-18 (10th Cir. 2004). Our appellate review for reasonableness is under

a deferential abuse of discretion standard. See United States v. Ruby, 706 F.3d

1221, 1225 (10th Cir. 2013). We will not reverse a sentence following revocation

of supervised release if the record establishes the sentence is “reasoned and

reasonable.” United States v. Contreras-Martinez, 409 F.3d. 1236, 1241 (10th

Cir. 2005). A “reasoned” sentence is one that is “procedurally reasonable,” while

a “reasonable” sentence is one that is “substantively reasonable.” United States v.

McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). “[A]lthough a district court must

provide reasoning sufficient to support the chosen variance [of an above-

Guidelines sentence], it need not necessarily provide ‘extraordinary’ facts to

justify any statutorily permissible sentencing variance.” United States v. Smart,

518 F.3d 800, 807 (10th Cir. 2008).

      Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583, when

a person violates the conditions of supervised release, the district court may

modify the conditions of release or revoke the term of supervised release and

impose prison time. See United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.

2004); 18 U.S.C. § 3583(e)(2) and (3); Fed. R. Crim. P. 32.1(b); U.S.S.G.

§ 7B1.3(a). “The court may, after considering the factors set forth in”

§ 3553(a)(1)-(7), “revoke a term of supervised release and require the defendant

                                         -6-
to serve in prison all or part of the term of supervised release authorized by

statute for the offense ....” 18 U.S.C. § 3583(e)(3).

      In this case, it is undisputed the advisory Guidelines range for Mr. Smith,

after revocation of his supervised release, was three to nine months’

imprisonment, and the district court considered this when imposing his sentence.

See U.S.S.G. §§ 7B1.3(a)-(b) and 7B1.4(a). It is clear the district court credited

the government’s evidence Mr. Smith violated the conditions of his supervised

release when he was terminated from the halfway house. It further found this

termination resulted from his falsely claiming on four different occasions that he

left the facility for medical appointments, as verified by the very medical

providers he claimed to have visited. The district court also pointed out this was

the fifth revocation of Mr. Smith’s supervised release and that he continued to fail

to take advantage of reintegration efforts and resources afforded him. Such

evidence is sufficient to support the alleged violation of the conditions of his

supervised release, revocation of his supervised release based on such a violation,

and imposition of a sentence. We further note his sentence is within the advisory

Guidelines range and therefore presumptively reasonable. See McBride, 633 F.3d

at 1232-33. In sentencing Mr. Smith, it is also evident the district court

discredited Mr. Smith’s unsupported, self-serving testimony he attended the

medical appointments at issue. We leave such credibility determinations to the

district court’s discretion.

                                         -7-
      Under the circumstances presented, we conclude the district court’s

revocation of Mr. Smiths’s one-year term of supervised release and imposition of

a nine-month term of imprisonment without further supervised release are both

“reasoned and reasonable,” especially in light of the fact Mr. Smith has not

offered any nonfrivolous reason warranting a lower sentence. Finally, we decline

to review his ineffective assistance of counsel claim, as we have held such claims

should be brought in collateral proceedings, and not on direct appeal, and

therefore are “presumptively dismissible.” United States v. Calderon, 428 F.3d

928, 931 (10th Cir. 2005). Not only should such claims be brought in a collateral

proceeding, but Mr. Smith’s ineffective assistance claim, as presented on appeal,

is inadequately developed for review by this court. See United States v.

Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005). We further note a request

for a new attorney based on counsel’s filing of an Anders brief is insufficient to

support appointment of new counsel. Id. at n.6.

                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

GRANT counsel’s motion to withdraw and DISMISS Mr. Smith’s appeal. We




                                         -8-
further DENY Mr. Smith’s pro se request for a thirty-day extension and

appointment of new counsel.

                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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