                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 9 2004
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                         Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 04-1129
                                                       (D.C. No. 03-CR-122-MK)
 CHRISTINE SMALL,                                             (Colorado)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ANDERSON, Senior Circuit Judge.**


       On March 25, 2003, Christine Small (Small) was charged in a nine-count

indictment filed in the United States District Court for the District of Colorado with

misuse of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B) and, in a

subsequently filed information, with one count of concealment of assets and false

statements in a bankruptcy proceeding, in violation of 18 U.S.C. § 152. She was

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.G. The case is
therefore ordered submitted without oral argument.
represented at all times in the district court by the Public Defender’s office. Pursuant to a

plea agreement with the government, Small pled guilty to one count of the nine-count

indictment and the one count contained in the information. The government, inter alia,

ultimately dismissed the other eight counts in the indictment. A presentence report

indicated that Small had a guideline range of 0 to 6 months imprisonment, and

recommended that she be placed on probation subject to certain conditions. Small,

through her counsel, objected to one of the recommended conditions, namely that she be

subjected to further drug testing and treatment. In this connection, the presentence report

contained the following assessment of Small’s mental condition:

              “Another important factor that I believe significantly affected
              Ms. Small’s ability to think, use good judgment, and lowered
              her ability to control her impulses was the combination of
              using psychotropic medication and drinking heavily. First,
              the defendant was using Klonapin. This medication works
              synergistically with alcohol and potentiates the effects of
              alcohol, lowering her ability to resist impulses and to think
              about the meaning and consequences of her actions.
              Moreover, she was taking two other psychotropic
              medications, Effoxor and Risperdal. When used with alcohol,
              these medications, as do other psychotropic medications,
              cause idiosyncratic responses and can greatly affect judgment
              and behavior. Thus, while there is not a clearly defined
              interaction that occurs when using alcohol with either
              medication, both medications used with alcohol can cause
              abnormal behavior and judgment.”

       Specifically, Small complained about the presentence report as follows:

              Ms. Small has been given regular urine tests during the time
              that she has been on pretrial release. None of these have been
              positive. She does not believe that treatment for substance

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              abuse (she has never used any illicit drugs) in addition to her
              continued mental health counseling, is a necessary component
              of her probation.

       On March 15, 2004, Small was sentenced to five years probation on each of the

two counts she had pled guilty to, to be served concurrently, subject to certain conditions.

The conditions, which Small objected to, read as follows:

              1) The defendant shall participate in a program of testing and
              treatment for drug and alcohol abuse, as directed by the
              probation officer. The defendant shall abstain from the use
              of alcohol or other intoxicants during the course of
              treatment and shall pay the cost of treatment as directed by
              the probation officer.

              2) The defendant shall participate in a program of mental
              health treatment, as directed by the probation officer, until
              she is released from the program by the probation officer.
              The defendant shall pay the cost of treatment as directed
              by the probation officer. The court authorizes the probation
              officer to release to the treatment agency all psychological
              reports and/or the presentence report, for continuity of
              treatment.

                                 *   *    *    *    *

              4) If necessary, the defendant shall remain medication
              compliant and shall take all psychiatric medications that are
              prescribed by her treating psychiatrist.

       At the sentencing hearing, Small’s counsel stated, inter alia, that he “strongly

endorsed the recommendation of the department for continued mental health treatment [of

Small] for obvious reasons.” However, counsel went on to state that he didn’t know

“whether given Ms. Small’s track record over the last several years with no . . . ‘dirty


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urine’ whether urinalysis testing needs to be a component of that.” The government in

response thereto “strongly urged the court to require the individual to continue with

random urinalysis . . . whatever is asked for in terms of maintaining her behavior” and

specifically noting “the synergistic effect of alcohol and the psychotropic medication that

has been taken,” referred to in the presentence report. In response thereto, at sentencing,

the court stated that Small “will refrain from the unlawful use of a controlled substance

and submit to one drug test within – to submit to drug – one drug test during the period

of probation and – well, I guess it’s three tests during the period of probation.”

       On April 1, 2004, Small, through the Public Defender’s office, filed a notice of

appeal in which she indicated she “wishes to appeal from certain conditions of probation

that were imposed over her objections, including a condition requiring that she submit to

urine testing for unauthorized drug use.”

       On July 28, 2004, this court appointed the Public Defender’s office to represent

Small in this court on her appeal. On September 24, 2004, the Public Defender’s office

filed an “Opening Brief Pursuant to Anders v. California.” In its so-called “Anders”

brief, by way of an “introduction,” counsel spoke as follows:

              On July 28, 2004, this Court appointed the Office of the
              Federal Public Defender to represent Christine Small in her
              direct appeal to the Tenth Circuit. After reviewing the files
              and records in this case, counsel has determined that it is
              necessary to file a brief pursuant to Anders v. State of
              California, 386 U.S. 738 (1967). Counsel is aware of his duty
              as an advocate to support a client’s appeal to the best of his
              ability. However, Anders teaches that “if counsel finds his

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               case to be wholly frivolous, after a conscientious examination
               of it, he should so advise the court and request permission to
               withdraw.” Id. at 743. Counsel has concluded that this appeal
               is frivolous in that there is no challenge to the validity of the
               defendant’s guilty plea, and the defendant’s sentence of
               probation was at the low end of the applicable guideline
               range. Further, the special conditions the district court
               imposed, only one of which was the subject of an objection,
               were within the court’s discretion and were reasonably related
               to the nature and circumstances of the offense. Finally,
               because Ms. Small received a sentence of probation, there are
               no claims pursuant to Blakely v. Washington, 124 S.Ct. 2531
               (2004). Accordingly, pursuant to Anders, counsel is filing
               this brief, a copy of which will be furnished to Ms. Small.

       In the “Conclusion” to his Anders brief, the Public Defender asked permission to

withdraw from further representing Small on appeal. On October 15, 2004, the United

States Attorney filed on behalf of the United States a letter wherein he stated that, in view

of the brief filed by the Public Defender’s office on behalf of Small, it “will not file a

brief in this matter.”

       As required, a copy of the Public Defender’s Anders brief was sent Small. In

response thereto, on November 4, 2004, she filed “Appellant’s Response to Anders

Brief.” In that response, Small did not really discuss the merits of her appeal. Rather, she

complained, repeatedly, that since her sentencing, she had been unable to contact her

counsel, that he had not returned her telephone calls, and the like. As previously noted,

this court had already appointed the Public Defender’s office to represent Small in this

court on her appeal. However, in her pro se brief, Small stated that subsequent to our

appointment of the Public Defender’s office to represent her on appeal, she had filed a

                                             -5-
motion to “reassign new counsel.”1 According to Small, we had “acknowledged” our

receipt of her motion, “but no decision had been made on my request.” In any event, in

her pro se response to the Public Defender’s Anders brief, Small again asked that she be

given another attorney to represent her in this appeal.

       As indicated, pursuant to a plea agreement, in which Small received many

concessions from the government, one of which was that the government would not ask

for a “prison sentence,” Small entered a plea of guilty to Count 8 of the indictment and to

the one count set forth in the information. There is absolutely nothing in the record

before us to indicate that Small has any desire to withdraw her plea of guilty. Under the

United States Sentencing Guidelines, Small’s guideline range was 0 to 6 months

imprisonment. However, the district court, following a recommendation in the

presentence report, elected not to impose any imprisonment, and placed her on probation

for five years on each count, to be served concurrently. There is nothing in the present

record to indicate that Small has any complaint about being placed on probation, in lieu of

some incarceration. There is, as above indicated, a complaint by Small, in the district

court and in this court, as to certain of the “conditions” imposed by the district court in

connection with her sentence that she be placed on probation for five years. Specifically,

she complains about the order of the district court that she receive periodic urine testing




       A motion to excuse the Public Defender from representing Small in this appeal
       1

was received by this court on September 28, 2004, but has not been acted on so far.

                                             -6-
and that she continue to obtain treatment for her physical and emotional problems. In this

regard, the presentence report indicates that Small had, at least in the recent past, mental

and emotional problems, had used alcohol, on occasion, to excess, and had apparently

mixed alcohol with medications. We are not impressed with Small’s suggestion that,

because she had not tested “positive” in urine tests conducted during the time she was on

pretrial release, there was no further need for urine testing. With her history of emotional

and mental problems, the district court’s order for periodic urine testing and treatment for

her physical and emotional problems was most reasonable.

       In United States v. Walser, 275 F.3d 981, 987 (10th Cir. 2001), we spoke as

follows: “Courts are given broad discretion in the imposition of conditions of supervised

release.” Without belaboring the point, we hold that, based on the record before her, the

conditions imposed by the district judge in the present case come well within that “broad

discretion” mentioned in Walser. And the present case does not come with any of the

“exceptions,” which are mentioned in Walser.

       Accordingly, as we did in United States v. Moore, 2003 W.L. 1963205 (10th Cir.

Apr. 29, 2003), an Anders case, we Dismiss appellant’s appeal as frivolous under Anders

and Grant counsel’s motion to withdraw. Small’s request for the appointment of new




                                             -7-
counsel is Denied as moot.2




                                                 ENTERED FOR THE COURT,

                                                 Robert H. McWilliams
                                                 Senior Circuit Judge




      2
       For other 10th Circuit cases involving the application of Anders to frivolous
appeals, see United States v. Keifer, 2001 W.L. 391711 (Apr. 18, 2001) , United States v.
Brown, 2000 W. L. 1616100 (Oct. 30, 2000), and United States v. Shipley, 1991 W.L.
164278 (Aug. 21, 1991).

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