                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          APR 29 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 01-3328
 v.
                                               (D.C. No. 95-CR-20027-KHV)
                                                         (D. Kan.)
 ERNEST MOORE,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      Counsel for Ernest Moore filed this appeal pursuant to Anders v.

California, 386 U.S. 738 (1967), noting that there were no appealable issues of

fact or law so Moore’s prayer for relief was frivolous. Accordingly, counsel has

moved to withdraw. Moore has requested the appointment of new counsel. The

government has waived its response on appeal and has declined to address the

motion to withdraw and Moore’s motion for appointment of new counsel.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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Judgment is not binding precedent, except under the doctrines of law of the case,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.
      The fact that Moore’s counsel filed an Anders brief puts a special duty on

us fully to examine the proceedings below, and we must carefully review the

evidence presented. Anders, 386 U.S. at 744. We find Moore’s claims frivolous

and dismiss the appeal. We grant counsel’s motion to withdraw and we deny

Moore’s request for new counsel as moot.

      On appeal, Moore makes two arguments.

      First, he argues that the district court inappropriately departed from a

policy statement in the Sentencing Guidelines when resentencing him at a

revocation hearing in October 2001. However, Moore does not contest that he

committed the violations of his supervised release, nor does he assert that the

sentence imposed by the district court was greater than the maximum permitted

under the applicable statute. See generally 18 U.S.C.A. 3583(e)(3). Moreover,

ranges in policy statements are merely advisory, rather than mandatory. United

States v. Hurst, 78 F.3d 482, 483 (10th Cir. 1996). We review the record of the

district court’s actions to determine whether they were reasoned and reasonable.

Id.

      Second, Moore argues that he should have had the right at his October 2001

revocation hearing to call witnesses on his own behalf and to cross-examine the

witness who testified against him. This argument has no merit, however, because

the record shows that, when represented by counsel, Moore waived his right to


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call witnesses by never requesting to do so at the hearing, and that he was able to

cross-examine the single witness who testified against him. (ROA Vol. II at 14 -

18); Hawkins v. Hannigan, 185 F.3d 1146, 1154-55 & n. 5 (10th Cir. 1999)

(holding that a defendant waives his right under the Confrontation Clause when

neither counsel nor defendant objects during proceedings). His cross-examination

argument is therefore not a basis for objection and we need not treat it further.



Procedural Background

      Some background is necessary to evaluate the evidence and to provide

context for Moore’s first argument, especially given that we have a special duty to

weigh it under Anders.

      In June 1995, Moore pled guilty to federal gun and drug crimes. He was

sentenced to 60 months of imprisonment and five years of supervised release.

After serving the prison term, Moore was freed in January 2001 to continue on

supervised release. Shortly thereafter, Moore was arrested for twice assaulting

his wife, which constituted a major violation of his supervised release.

      At a first revocation hearing in June 2001, the district court warned Moore

that he could not continue to violate the conditions of his supervised release or he

would be reincarcerated. The district court was persuaded by an appeal for

clemency not to revoke Moore’s supervised release entirely, but added additional


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conditions to its terms. Moore had to undergo anger management counseling, to

submit to six months of electronic monitoring, and to have no contact of any kind

with his wife Alice.

      Nonetheless, Moore violated the terms of the supervised release again

almost immediately by repeatedly harassing Alice. At a second hearing in

October 2001, the district court finally revoked his supervised release. It

sentenced him to 36 months for the drug crimes and 24 months for the gun crime,

to be served concurrently. This was the maximum left under the statute, not the

suggested range for revocation of 6 to 12 months given in the policy statements.



Evidence Presented at the October 2001 Hearing

      The district court revoked Moore’s supervised release at the October 2001

hearing based on the evidence provided by Alice Moore that he had repeatedly

contacted her and threatened her. Alice and Moore’s relationship was violent and

complicated. At times they were on good terms, but Moore had been arrested

twice while on supervised release for assaulting, choking, and hitting Alice.

Before the second of these arrests, he told her “the only way you’ll leave me is if

one of us leaves the earth. I’ll see you in a casket.” (ROA Tr. at 19.)

      There were numerous examples in the record of the October 2001 hearing

during which Moore was documented to have harassed Alice and then lied to his


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probation officer about his actions. Two incidents in particular, though, highlight

the pattern of Moore’s behavior in violating the terms of his supervised release.

       On August 11, 2001, Moore was suddenly out of electronic monitoring

range without permission. He had come looking for Alice that morning and found

her at a friend’s house. Alice’s written statement recorded what happened that

day:

       On August 11, he was at my house at 5am mad because I was not
       there. He called my cell phone in an outrage. At 6:30 in the
       morning[,] he found where I was and he came over to my friend
       Diane’s banging on the door. When she answered, he told her he
       wanted to talk to me, and she informed him that I didn’t want to talk
       to him. He went crazy, calling my cell phone like a madman, leaving
       very intimidating and sometimes messages that would really have me
       afraid.

       He must have went to work because he started calling me around 7 to
       8am from his work phone. He must have left for lunch because at
       12:30 he was beating on the door at my girlfriend’s house . . . Then
       he came into the liquor store where we were, and I told him that I
       had nothing to say to him. He then pulled off after me and chased
       me down the street . . . trying to make me pull over. When I
       wouldn’t he tried to run me off the road.

       (ROA Tr. at 20 - 21.)


       During an investigation of the August 11 incident, Moore disappeared again

from electronic monitoring range. The probation officer immediately called

Alice, and she confirmed that Moore had made contact with her. According to the

probation officer’s testimony,


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      She was in a panic when I talked with her, She was very upset, very
      scared. She was rounding her children up, getting some belongings,
      she was loading things into the car while she was talking to me. She
      did not know at first where she was going to go. We talked about
      that. I suggested that perhaps she go to the nearest police station if
      she had no other place to go.

      (ROA Tr. at 13 - 14.)


      Alice had promised to testify against Moore at the revocation hearing, but

disappeared shortly before it started. Her written statements were entered in

evidence under the hearsay rules applicable to these hearings. (Id. at 4); United

States v. Waters, 158 F.3d 933 (6th Cir. 1998) (holding permissible consideration

of reliable hearsay evidence in final hearings regarding revocation of supervised

release).



Proceedings at the October 2001 Hearing

      At the October 2001 revocation hearing, when confronted with this

evidence, Moore insinuated that Alice had invented the stories to get him into

trouble. Id. at 26. But the judge pressed Moore on details, asking for example

whether Moore had called Alice and whether he had gone over to her house. Id.

at 27. Under oath, Moore had to admit that these facts were true. Id.

      The judge then expressed her disappointment with Moore’s behavior. Id.

Although the prosecution had identified the suggested range in the policy


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statements as 6 to 12 months, the judge explained why she would depart from it.

Id. She noted that this was Moore’s second revocation hearing, and that he had

specifically failed to abide by lesser measures of control such as electronic

monitoring. Id.

      After a summation of the evidence, the district court explained:

      I had hoped that we wouldn’t get to this stage because I thought we
      would be able to work with you, Mr. Moore, and that by stepping up
      the supervision and giving you a second chance, you would be able to
      show us that you were amenable to supervision. . . . [But] at this
      point, I’m absolutely convinced that you are not a suitable candidate
      for supervised release, that you do not respect the court’s authority or
      conditions or the instructions of the probation office, and that you’re
      not going to avoid contact with Alice Moore or comply with the
      conditions of your electronic monitoring.
      Id. at 28.

      The judge finally sentenced Moore to the statutory maximum for his

crimes: 36 months for the drug crimes and 24 months for the gun crime to run

concurrently. Id.



Moore’s Argument on Appeal

      Moore now contests his sentence and maintains that the district court

should have been bound by the 6 to 12 month range in the policy statement at

U.S.S.G. § 7B1.4.

      The ranges in policy statements are advisory rather than mandatory, and we

review cases in which district courts depart from these ranges to determine merely

                                         -7-
whether their actions were reasoned and reasonable. United States v. Hurst, 78

F.3d 482, 483 (10th Cir. 1996). A district court must be aware of a policy

statement, but it may easily depart from the range the statement suggests. United

States v. Lee, 957 F.2d 770, 775 (10th Cir. 1992).

      We decided a similar case to Moore’s in United States v. Lee, 957 F.2d 770

(10th Cir. 1992). Lee had been convicted of unlawful possession of a firearm

and, as a condition of supervised release, was ordered not to use drugs. He

repeatedly, however, tested positive for methamphetamine. We upheld that

district court’s departure from the range in the policy statements when it

recognized what the range was, but departed from it after explaining that the trust

of the court had been violated by Lee’s repeated abuse of drugs. Id. at 772.

      In Moore’s case, the record also demonstrates that the district court’s

departure from the policy statement meets our low standard of review. Hurst, 78

F.3d at 483; Anders, 386 U.S. at 744. The district court confirmed on the record

that it recognized what the policy statement range was for Moore’s violations.

(ROA Tr. at 22 - 23.) The judge then identified what the statutory maximum was

and conferred with both sides about whether she should impose that range. Id. at

23. She specifically gave Moore’s attorney an opportunity to argue for a lesser

sentence, and requested a response from Moore himself in which he was later

forced to admit that he gave inconsistent answers to the court. Id. at 25.


                                         -8-
        Moore expressly disregarded the requirements of his supervised release,

violating those conditions numerous times despite warnings from the court and his

probation officer. He showed no genuine remorse for his actions at the hearing

and admitted under questioning that he had lied to the court. As the district court

explained, it was these elements of Moore’s own behavior that resulted in its

departure from the range in the policy statement.



Conclusion

        Accordingly, we conclude that the district court’s actions in departing from

the range in the policy statements were reasoned and reasonable given its

explanation of its actions and Moore’s continuing disregard for the conditions of

his supervised release. We earlier found that Moore’s argument regarding cross-

examination was without merit. We therefore DISMISS Moore’s appeal as

frivolous under Anders and GRANT counsel’s motion to withdraw. Anders, 386

U.S. at 744. Moore’s request for the appointment of new counsel is DENIED as

moot.
                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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