                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       December 4, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff – Appellee,
                                                          No. 05-2087
 v.
                                                   (D.C. No. CF-02-2162 BB)
                                                           (D . N.M .)
 THO M AS H . M cCO NV ILLE,

          Defendant – Appellant.



                             OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Thomas H . M cConville, a/k/a R obert J. M cConville, appeals his

convictions and sentence for conspiring to bring illegal aliens into the United

States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(1)(A)(i), and

bringing aliens into the United States in violation of 8 U.S.C. § 1324(a)(2)(B)(ii)

and 18 U.S.C. § 2.     M cConville’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), moving for leave to withdraw as counsel. 1        We

      *
        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judgment is not binding precedent, except under the doctrines of law of the case,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. 36.3.
      1
          M cConville’s trial counsel filed an Anders brief asserting that there were
                                                                         (continued...)
G R A N T counsel’s motion to withdraw, AFFIRM M cConville’s sentence, and

DISM ISS his appeal.

      On September 10, 2002, border patrol agents assigned to the area around

Columbus, New M exico stopped a van heading W est on New M exico State Road

9. Inside the van were eleven Polish nationals who had entered the country

illegally. Subsequent investigation showed that the parties responsible for

organizing their entry into the United States w ere Stanley Piotrowski,

M cConville, and Jadwiga M cConville, M cConville’s w ife. All three individuals

were indicted on one count of conspiring to bring illegal aliens into the United

States during September 2002 and two counts of bringing an illegal alien into the

United States for the purpose of commercial advantage and private financial gain.

A jury convicted M cConville on all charges, and he w as sentenced to the statutory

minimum: three years’ imprisonment. In addition, he was also ordered to pay

$300 in special assessments, and subjected to a three-year period of supervisory

release following his imprisonment. As a special condition of his supervisory

release, M cConville was prohibited from having any contact w ith Piotrowski.

M cConville has been released from prison, and is currently serving the three-year

period of supervised release.

      1
       (...continued)
no non-frivolous issues on appeal. W e removed trial counsel, and appointed the
Office of the Federal Public defender for the District of Colorado to represent him
on appeal. That office submitted a revised Anders brief, again asserting that there
are no non-frivolous issues for our consideration.

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      If counsel conscientiously examines a case and determines that any appeal

would be wholly frivolous, Anders authorizes counsel to so advise the court and

request permission to withdraw. Id. 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 offer

any argument to the court. Id. If the court, upon completely examining the

record, determines that the appeal is in fact frivolous, it may grant counsel's

request to withdraw and dismiss the appeal. Id. In the present case, counsel

provided M cConville with a copy of the Anders brief, and M cConville has chosen

not to exercise his right to submit a pro se brief in response.

      Counsel’s A nders brief identifies tw o potentially appealable issues. First,

the district court admitted evidence that during a previous stop at the United

States-M exico border agents discovered M cConville was attempting to illegally

transport a Polish citizen into the United States, and was also carrying the

luggage of two other Polish nationals who were attempting to illegally enter the

United States on foot. The government filed a pretrial motion in limine seeking

to admit this evidence under Federal Rule of Evidence 404(b) for the purpose of

showing M cConville’s knowledge and intent, common scheme or plan, or absence

of mistake or accident. M cConville filed no response, and the district court

granted the motion. Because M cConville also failed to object to admission of this

evidence when presented at trial, we review for plain error. “Plain error occurs

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when there is (1) error (2) that is plain, which (3) affects the plaintiff’s

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (quotation omitted).

      Based on our review of the record, the district court did not plainly err in

admitting this evidence. It reasonably concluded that M cConville’s prior

involvement with assisting Polish nationals attempting to enter the country

illegally was admissible under Rule 404(b). 2 Further, the evidence was not

unduly prejudicial under Rule 403. 3 M cConville would be unable to satisfy the

first prong of the plain error analysis, that there was error.   Thus, we agree with

counsel that any appeal of this issue would be frivolous.

      M cConville’s counsel identifies a second potentially appealable issue: the

district court’s order that M cConville have no contact with Piotrowski during


      2
          Rule 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of . . . opportunity, intent, . . . plan, knowledge, . . . or
      absence of mistake or accident.
      3
          Rule 403 provides:

      Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue
      delay, waste of time, or needless presentation of cumulative
      evidence.

                                          -4-
M cConville’s three-year period of supervised release. 4 It is undisputed that the

Presentence Report did not recommend imposition of this special condition and

that the district court, without providing notice, imposed the condition sua sponte

during the final minutes of the sentencing hearing. It is also undisputed that

M cConville failed to object to this condition during the sentencing hearing.

      Counsel argues M cConville waived his right to appeal this condition by

failing to object below. Defendants do not necessarily waive their right to appeal

a special condition of supervised release when they are given no pre-trial notice

of the potential imposition of the condition. See United States v. Bartsma, 198

F.3d 1191, 1198-99 (10th Cir. 1999) (citing Fed. R. Crim. P. 32(c)(1)) (holding

that failure to object does not waive a sentencing objection unless defendant

received notice sufficient to provide a meaningful opportunity to comment). The

district court did not provide actual notice, but notice may be either actual or

constructive. See United States v. Barajas, 331 F.3d 1141, 1144 (10th Cir. 2003).

Constructive notice is provided if the condition imposed is a required or

discretionary condition of supervised release identified in 18 U.S.C. §§ 3583(d),

3563(b), or United States Sentencing Guideline § 5D1.3. Id. at 1154-55. Counsel

argues that M cConville had constructive notice based on § 5D1.3(c)(9), which

indicates that a standard condition of supervised release is that the defendant may

      4
        M cConville’s release from prison does not render moot his challenge to
the conditions of his supervised release. See United States v. Tran, 285 F.3d 934,
936 n.1 (10th Cir. 2002).

                                         -5-
not associate with a convicted felon unless granted permission to do so by the

probation office. Arguably, this placed M cConville on notice that he might be

prohibited from contacting Piotrowski during his supervisory release period.

      However, we find it unnecessary to resolve this question; the condition

imposed by the district court is not one that requires presentence notice.

“[N ]otice of a special condition is only required when the condition implicates a

liberty interest, and there is a lack of any obvious nexus between the condition

and the crime of conviction.” United States v. Bruce, 458 F.3d 1157, 1167-68

(10th Cir. 2006). Here, a sufficient nexus exists between the condition imposed

on M cConville – no contact with his co-defendant – and his conviction for

conspiracy to transport illegal immigrants into the United States. Conspiracy

requires some form of agreement between two individuals, which necessitates

some form of communication. United States v. Evans, 970 F.2d 663, 668 (10th

Cir. 1992). The condition imposed ensures that M cConville and Piotrowski will

not agree to transport illegal aliens again during the three-year supervised release

period.

      Further, the district court did not abuse its discretion in imposing this

condition. “Conditions of supervised release, as ordered by the district court, are

reviewed for abuse of discretion.” United States v. Pugliese, 960 F.2d 913, 915

(10th Cir. 1992). District courts’ wide latitude to impose supervised release

conditions is subject to certain statutory constraints:

                                          -6-
      [A] condition of supervised release must be reasonably related to
      “the nature and circumstances of the offense and the history and
      characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). M oreover,
      the condition must involve no greater deprivation of liberty than is
      reasonably necessary given the needs “to afford adequate deterrence
      to criminal conduct,” id. § 3553(a)(2)(B), “to protect the public from
      further crimes of the defendant,” id. § 3553(a)(2)(C), and “to provide
      the defendant with needed educational or vocational training, medical
      care, or other correctional treatment in the most effective manner,”
      id. § 3553(a)(2)(D).

United States v. Edgin, 92 F.3d 1044, 1048 (10th Cir. 1996). Although the

district court did not make factual findings regarding this condition, the record

shows the condition is reasonably related to the nature and circumstances of

M cConville’s crime. It addresses his personal connection and prior experiences

with his co-defendant, and seeks to avoid continuance of conspiratorial activity

with this particular person. Nor are we convinced that any lesser condition would

provide “adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B).

      Accordingly, we GR A N T counsel’s request to withdraw, AFFIRM

M cConville’s conviction, and DISM ISS his appeal.


                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




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