                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    July 8, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 14-7001
                                             (D.Ct. No. 6:13-CR-00038-RAW-1)
 JASON SLAPE,                                            (E.D. Okla.)

          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 Defendant-Appellant Jason Slape violated the

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


      *
         This order and judgment is not binding precedent except under the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.
twenty-four months imprisonment with no supervised release to follow. Mr.

Slape appeals the revocation of his supervised release; however, his attorney has

filed an Anders brief and a motion to withdraw as counsel. 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 16, 2011, Mr. Slape pled guilty to possession with intent to

distribute marijuana and received a sentence of twenty months imprisonment and

three years supervised release. On August 31, 2012, Mr. Slape began serving his

three-year term of supervised release. On December 12, 2013, the district court

held a hearing on the government’s second petition to revoke Mr. Slape’s

supervised release based on violations of several conditions of that release. 1 The

petition alleged, in part, Mr. Slape left the jurisdiction of his release without

permission; committed a new crime of domestic abuse; and failed to pay child

support, maintain employment, or comply with electronic monitoring

requirements.

      At the beginning of the revocation hearing, the district court advised that

Mr. Slape faced a potential penalty of twenty-four months in prison, after which

Mr. Slape stipulated to all the violations except that he committed the new crime

      1
        Final revocation did not occur on the first petition for revocation of Mr.
Slape’s supervised release, filed in July 2013, because the probation officer was
unable to secure a place in a halfway house for him.

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of assaulting his girlfriend while on supervised release. The government then put

on evidence Mr. Slape was involved in a domestic abuse incident, in which his

girlfriend stated he choked her, as well as other evidence supporting his

stipulations. Based on Mr. Slape’s stipulations and the preponderance of the

evidence presented, the district court determined Mr. Slape: 1) failed to report to

the probation officer, find employment, or pay child support; and 2) committed

the crime of assault when he “physically assaulted his girlfriend ... by grabbing

her around her throat and pushing her.” While it acknowledged the advisory

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range was five

to eleven months imprisonment, it imposed the statutory maximum sentence of

twenty-four months imprisonment, without supervised release, stating:

      I have considered the violation policy statements in Chapter 7 of the
      United States Sentencing Guideline manual now in effect, and view
      those policies as advisory in nature for the purpose of these
      proceedings. I’ve considered the nature and circumstances of the
      violations and the history and characteristics of the offender. The
      defendant, on numerous occasions, has shown little regard for the
      rules and conditions of supervised release.

      The sentence imposed is within the authority specified in [18] United
      States Code Section 3583(e)(3). The sentence is reasonable, provides
      just punishment for noncompliance, is an adequate deterrent to
      criminal conduct, and promotes respect for the law.

                                   II. Discussion

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

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


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

arguable or viable claims exist relating to Mr. Slape’s sentence which warrant an

appeal. See Anders, 386 U.S. at 744. In support, counsel points out the district

court considered the Guidelines Chapter Seven policy statements, as well as the

applicable 18 U.S.C. § 3553(a) sentencing factors, and nothing in the record

establishes Mr. Slape’s sentence was incorrectly calculated for the purpose of

being procedurally unreasonable or “arbitrary, capricious, whimsical, or

manifestly unreasonable” for the purpose of being substantively unreasonable, as

required under United States v. Munoz-Nava, 524 F.3d 1137, 1148 (10th Cir.

2008).

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

his counsel’s Anders brief. See 386 U.S. at 744. Mr. Slape failed to file such a

response. 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 id. In reviewing a sentence imposed after revocation of supervised

release, we review the district court’s factual findings for clear error and its legal

conclusions de novo. United States v. Tsosie, 376 F.3d 1210, 1217-18 (10th Cir.

2004). Our appellate review for reasonableness is for abuse of discretion and is

deferential. 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

                                          -4-
record establishes the sentence is “reasoned and reasonable.” See 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), (3); Fed. R. Crim. P. 32.1(b); U.S.S.G. § 7B1.3(a).

In imposing a sentence following revocation of supervised release, the district

court is required to consider both the Chapter Seven policy statements as well as

the factors provided in 18 U.S.C. § 3553(a). 2 See United States v. Cordova, 461

      2
         The Chapter Seven policy statements include advisory Guidelines ranges
for sentences following revocation of supervised release. See generally U.S.S.G.
Ch. 7 and §§ 7B1.3, 7B1.4. With respect to the § 3553(a) sentencing factors, they
include, in part, not only the nature of the offense, but the history and
characteristics of the defendant as well as the need for the sentence to provide
adequate deterrence and protect the public. See United States v. Kristl, 437 F.3d
                                                                        (continued...)

                                         -5-
F.3d 1184, 1188 (10th Cir. 2006). “The court may, after considering the factors

set forth in” § 3553(a)(1)-(7), “revoke a term of supervised release and require

the defendant 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. Slape on revocation is five to

eleven months imprisonment. See U.S.S.G. §§ 7B1.3(a)-(b), 7B1.4(a). However,

§ 3583 authorizes the district court to impose a maximum sentence of two years

in prison, as imposed here. See 18 U.S.C. § 3583(e)(3).

      In this case, the record establishes Mr. Slape admitted to violating all but

one of the conditions of his supervised release, and the government provided

sufficient evidence to support the other alleged violation, resulting in multiple

violations. In addition, the district court provided its reasons for revoking Mr.

Slape’s supervised release and imposing the statutory maximum sentence, and we

are satisfied it considered the parties’ arguments, the applicable advisory

Guidelines, and the § 3553(a) sentencing factors, including Mr. Slape’s history

and characteristics, when it considered his history of non-compliance with the

terms of his supervised release and the seriousness of his violations. Under the

circumstances presented, we conclude the district court’s revocation of Mr.

Slape’s three-year term of supervised release and imposition of a twenty-four-


      2
       (...continued)
1050, 1053 (10th Cir. 2006); 18 U.S.C. § 3553(a).

                                          -6-
month term of imprisonment are both “reasoned and reasonable,” especially in

light of the fact Mr. Slape has not offered any additional nonfrivolous reasons

warranting a lower sentence. The fact his sentence is twice the recommended

advisory Guidelines range does not make his sentence unreasonable. Rather, the

variance is permitted by statute and explicable by the facts presented in the record

on appeal, and the district court’s reasoning is sufficiently compelling to support

the degree of the variance.

                                  III. Conclusion

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

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



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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