                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 29, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff–Appellee,
                                                        No. 07-6127
 v.                                               (D.C. No. 98-CR-149-M)
                                                        (W.D. Okla.)
 GERALD ROBEY BROWN,

          Defendant–Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Gerald Robey Brown appeals his sentence of one year and one day of

imprisonment imposed following revocation of his supervised release. Brown’s

counsel moves for leave to withdraw from the case in a brief filed pursuant to

Anders v. California, 386 U.S. 738 (1967). Because we conclude that each of the

arguments raised by Brown and his counsel are frivolous, we AFFIRM his

sentence, DISMISS the appeal, and GRANT counsel’s motion to withdraw.


      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
                                         I

      Brown was convicted of involuntary manslaughter in Indian country in

violation of 18 U.S.C. §§ 1112 and 1153. On May 10, 2001, the district court

sentenced Brown to 21 months’ imprisonment followed by three years of

supervised release. Having already served his entire term of imprisonment prior

to sentencing, Brown commenced service of his supervised release on May 11,

2001. Among other standard terms of his period of release, the court conditioned

Brown’s release on his refraining from committing “another federal, state or local

crime.”

      Within approximately one year of his placement on supervised release,

Brown pleaded guilty in Oklahoma state court to committing indecent or lewd

acts with a child under the age of 16, a violation of Oklahoma law. See Okla.

Stat. tit. 21, § 1123. On August 12, 2002, the state court sentenced him to ten

years’ incarceration, with five years of the sentence suspended.

      Following completion of his state sentence in May 2007, the United States

petitioned the district court to revoke Brown’s federal supervised release because

Brown had committed the state crime. After a hearing on the issue, the district

court found, by a preponderance of the evidence, that Brown’s state court

conviction was valid and that Brown had therefore violated the terms of his

supervised release. It thus revoked his remaining period of release, which had

been suspended pending completion of his state sentence.

                                       -2-
      In determining the appropriate sentence for Brown’s violation, the district

court considered the applicable policy statements contained in Chapter 7 of the

United States Sentencing Guidelines (“Guidelines”), which called for a sentencing

range of 12-18 months’ imprisonment. Agreeing with Brown that a sentence at

the bottom of the range was appropriate, the court imposed a sentence of one year

and one day imprisonment to be followed by an additional period of supervised

release of one year and 364 days. 1 Brown has timely appealed the court’s

imposition of that sentence. We have jurisdiction under 28 U.S.C. § 1291.

                                         II

      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may “so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief

to both the appellate court and the client, pointing to anything in the record that

would potentially present an appealable issue. Id. The client may then choose to

“raise any points that he chooses” in response to counsel’s brief. Id. If, upon

complete examination of the record, the court determines that the appeal is in fact

frivolous, it may grant the request to withdraw and dismiss the appeal. Id.




      1
        According to the district court, it imposed a sentence of one year and one
day of imprisonment so that Brown would be eligible to receive good time credits
from the Bureau of Prisons, which could potentially reduce his sentence by 52
days.

                                         -3-
      Acting pursuant to Anders in the present case, counsel has filed a brief

raising one arguably appealable issue: Did the district court adequately explain

the sentence imposed at the revocation hearing such that this court can consider

whether it is a reasoned and reasonable sentence? Counsel provided Brown with

a copy of the appellate brief, and Brown has declined the opportunity to file a pro

se brief in response. He has, however, filed a letter with the court raising two

additional arguments, which we construe liberally. See Haines v. Kerner, 404

U.S. 519, 520 (1972). In his letter, he states that he did not sign the plea

agreement in the state court case, and claims that he is legally incompetent and

requests that we order a competency evaluation to be performed by independent

physicians.

                                          A

      Brown’s counsel urges that the district court did not adequately explain the

sentence imposed with reference to the factors set forth in 18 U.S.C. § 3553(a)

and Chapter 7 of the Guidelines. As a result, argues counsel, this court cannot

determine whether the sentence imposed is reasoned and reasonable, and the

sentence must be vacated as procedurally unreasonable and the case remanded for

resentencing. We disagree.

      When a defendant violates a condition of supervised release, a district court

may revoke the term of supervised release and impose imprisonment. 18 U.S.C.

§ 3583(e)(3); United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). In

                                         -4-
reviewing a sentence imposed after revocation of supervised release, we normally

review the district court’s findings of fact for clear error and its legal conclusions

de novo. Kelley, 359 F.3d at 1304; see also United States v. Tedford, 405 F.3d

1159, 1161 (10th Cir. 2005) (“Although the Supreme Court’s decision in United

States v. Booker altered our standard of review for most sentencing cases, the

standard of review for cases where the defendant challenges the revocation of her

supervised release remains the same.”). When a defendant fails to raise a

contemporaneous objection to the district court’s allegedly inadequate explanation

of the sentence imposed, however, we review the district court’s determinations

only for plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th

Cir. 2006); see also United States v. Cordova, 461 F.3d 1184, 1186 (10th Cir.

2006) (applying plain error review to a sentencing argument challenging the

revocation of a term of supervised release). “Plain error occurs when there is (i)

error, (ii) that is plain, which (iii) affects the defendant’s substantial rights, and

which (iv) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Ruiz-Terrazas, 477 F.3d at 1199. We resolve this case on the first

step of this analysis, as the district court simply did not err.

      Before imposing a sentence following revocation of supervised release, a

district court is required to consider both the factors provided in § 3553(a) and the

policy considerations in Chapter 7 of the Guidelines. Cordova, 461 F.3d at 1188.

The § 3553(a) factors include:

                                           -5-
      [T]he nature and circumstances of the offense; the history and
      characteristics of the defendant; the need for the sentence imposed to
      afford adequate deterrence, protect the public, and provide the
      defendant with needed educational or vocational training, medical
      care or other correctional treatment in the most effective manner;
      pertinent guidelines; pertinent policy statements; the need to avoid
      unwanted sentence disparities; and the need to provide restitution.

United States v. Contreras-Martinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2006).

In explaining the sentence imposed, the court need not individually list each

factor, nor “recite any magic words to show us that it fulfilled its responsibility to

be mindful of the factors that Congress has instructed it to consider.” United

States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258-59 (10th Cir. 2006)

(quotations omitted).

      Although certainly not exhaustive, the district court’s explanation of the

sentence was sufficient to show that it reached a well-reasoned sentence. Prior to

imposing a term of imprisonment, the district court heard arguments from

Brown’s counsel as to the proper sentence. In those arguments, counsel

specifically addressed several of the relevant sentencing factors that the court

would need to consider and cited to “the goals of sentencing under 3553.” Then,

only after hearing counsel’s contentions and Brown’s request for a sentence at the

bottom of the recommended range, did the court impose a sentence.

      Additionally, throughout the hearing, the court and counsel discussed

several of the relevant § 3553(a) and Chapter 7 factors. For example, the court

remarked that it had heard the testimony and evidence presented by the witnesses

                                         -6-
regarding Brown’s violation of state law—undoubtedly a reference to the nature

and circumstances of the offense conduct. See 18 U.S.C. § 3553(a)(1). The court

also mentioned the defendant’s mental health history. We view this as an implicit

reference to Brown’s history and characteristics, as well as the need to afford him

necessary treatment. See § 3553(a)(1) & (2)(D). Moreover, by recognizing the

applicable Guidelines range under Chapter 7, the court clearly considered the

recommended term of imprisonment. See § 3553(a)(4)(B). Finally, the court

noted the state crime for which Brown had been convicted, and considered the

fact that Brown had already served five years of prison time in relation to that

crime. See § 3553(a)(2)(A) & (B).

      In short, the record amply demonstrates that the district court’s sentence

was adequately explained and that the court was mindful of the relevant

sentencing considerations. We thus find no procedural error in the record.

                                          B

      We construe Brown’s argument that he did not sign the plea agreement

underlying his conviction in the state court case as a claim that the district court

erred in finding that he had violated the terms of his supervised release by

committing a state crime. We review the district court’s factual findings in

connection with its decision to revoke Brown’s period of supervised release for

clear error. See United States v. Hall, 984 F.2d 387, 390 (10th Cir. 1993).




                                         -7-
      Having carefully reviewed the transcript of the revocation hearing, we

discern no clear error in the district court’s conclusion that Brown’s state court

conviction was valid. Brown failed to present any evidence that he did not sign

the plea agreement, and the testimony presented at the hearing was more than

sufficient to show that he had been convicted under Oklahoma law of committing

indecent or lewd acts with a child under the age of 16. Indeed, his own counsel

stated that “he pled guilty to that offense.”

                                           C

      As to the competency issue, we interpret Brown’s claim to be one of

procedural error, i.e., that the district court should have held a competency

hearing. See McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001) (en banc)

(“A procedural competency claim is based upon a trial court’s alleged failure to

hold a competency hearing . . . .”). In order to prevail on such a claim, Brown

must “establish that a reasonable judge should have had a bona fide doubt as to

his competence at the time of trial.” Id. at 954. A criminal defendant is

competent if he possesses “sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding . . . [and] he has a rational as

well as a factual understanding of the proceedings against him.” Dusky v. United

States, 362 U.S. 402, 402 (1960).




                                          -8-
      Nothing in the record indicates that Brown was unable to consult with his

lawyer or understand the revocation proceedings against him. 2 When given an

opportunity to speak at the revocation proceeding, Brown stated that he was

innocent of the underlying state crime and that he had not signed the plea

agreement that served as the basis for his guilty plea in that case. By virtue of

these arguments, it is clear that Brown understood the charges against him and

appreciated the fact that the government had just put two witnesses on the stand

who testified as to his guilt in the state case. Moreover, his counsel noted that he

had met with Brown prior to the revocation hearing and that Brown had asserted

his disagreement with the allegations in the petition filed by the government.

These are not the actions of a defendant who lacks understanding of the

proceedings against him. Considering the entirety of the record, we conclude that

a reasonable judge would not have had a bona fide doubt as to Brown’s

competence at the revocation hearing. We thus reject Brown’s request that we

order a competency evaluation.




      2
         We recognize that Brown has a prior history of mental illness and that a
district court previously found him to be incompetent for a short period of time
prior to his initial trial in his federal case. He was, however, determined to be
competent to stand trial in that case.

                                        -9-
                                    III

     For the foregoing reasons, we AFFIRM Brown’s sentence, DISMISS the

appeal, and GRANT counsel’s motion to withdraw.

                                  ENTERED FOR THE COURT



                                  Carlos F. Lucero
                                  Circuit Judge




                                   - 10 -
