                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         February 8, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-6202
                                                   (D.C. No. 5:07-CR-00294-F-1)
CAMERON TAEVON JONES,                                      (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      This appeal arises from the district court’s order revoking Cameron Jones’

supervised release and imposing a 36-month prison sentence. Jones’ counsel filed an

Anders brief and moved to withdraw, asserting that the record gives rise to no

discernible non-frivolous issues on appeal. See Anders v. California, 386 U.S. 738,

744 (1967) (stating that if after “conscientious examination” of record, counsel finds

appeal “wholly frivolous,” counsel may move to withdraw and contemporaneously

file “a brief referring to anything in the record that might arguably support the

      *
        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. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
appeal”). After conducting our own review of the record, we agree with counsel’s

assessment. Accordingly, we dismiss the appeal and grant counsel’s motion to

withdraw. See id.

                                    BACKGROUND

       In 2007, Jones was convicted of possessing cocaine with intent to distribute.

The district court imposed a 71-month prison sentence and 5 years of supervised

release.

       Jones was released from prison in August 2014. Less than a month later,

Jamaris Miles was shot to death. Two days after that, the United States Probation

Office moved to revoke Jones’ supervised release, alleging that Jones violated the

conditions of his release by murdering Miles and possessing a firearm.

       At the revocation hearing, Inspector Robert Benavides—the detective who

investigated Miles’ murder—testified about a witness statement he obtained from

Lakisha Palmore after Miles’ shooting. The government made no effort to secure

Palmore’s presence at the revocation hearing. But according to Benavides, Palmore

stated that she saw Jones shoot Miles.

       Relying heavily on Benavides’ testimony about Palmore’s statement, the

district court found, by a preponderance of the evidence, that Jones violated the terms

of his supervised release by murdering Miles and possessing a firearm. The district

court then revoked Jones’ supervised release and imposed a 36-month prison

sentence to be followed by 10 years of supervised release.



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      We reversed. Specifically, we held that the district court abused its discretion

in considering Palmore’s statements without balancing (1) Jones’ interest in his

constitutional right to confront Palmore against (2) the government’s good cause for

depriving him of that right. United States v. Jones, 818 F.3d 1091, 1099–1102 (10th

Cir. 2016).

      On remand, Palmore testified that she saw Jones shoot Miles. And while the

district court acknowledged that Palmore’s credibility was hardly “unblemished,” it

ultimately concluded that a preponderance of the evidence established Jones killed

Miles. R. vol. 3, 209. The district court then “reaffirmed and entered” its previous

order: it revoked Jones’ supervised release, sentenced him to 36 months in prison,

and imposed 10 years of supervised release. Id. at 210.

      Finally, as a condition of that supervised release, the district court again

imposed a “search condition.” Id. at 211. Under the terms of that condition, Jones

“must submit to a search of his person, property, electronic device or any automobile

under his control to be conducted in a reasonable manner and at a reasonable time,

for the purpose of detecting firearms and/or ammunition at the direction of the

probation officer upon reasonable suspicion.” R. vol. 1, 33. Jones appeals.

                                     DISCUSSION

      Defense counsel identifies three potential issues in his Anders brief:

(1) whether there was sufficient evidence to prove Jones violated the terms of his

supervised release; (2) whether the sentence the district court imposed upon



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revocation is procedurally and substantively reasonable; and (3) whether the district

court committed plain error in imposing the search condition.

      We agree with defense counsel that Jones couldn’t mount a non-frivolous

challenge to the sufficiency of the evidence. True, Palmore’s credibility was not—as

the district court readily acknowledged—“unblemished.” R. vol. 3, 209. Still, the

district court carefully and thoroughly analyzed Palmore’s testimony and previous

statements to police and found them sufficiently credible to satisfy the

preponderance-of-the-evidence standard. Such credibility determinations are entitled

to great deference. See United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir.

2015), cert. denied, 136 S. Ct. 1700 (2016). Finding nothing in the district court’s

factual findings that we might characterize as clearly erroneous, see id., we conclude

that any sufficiency-of-the-evidence argument would be frivolous.

      We reach the same conclusion regarding the second potential basis for appeal

that defense counsel identifies: whether Jones’ sentence is procedurally and

substantively unreasonable. To the extent that counsel suggests the district court

failed to adequately articulate its reasons for imposing a 36-month prison sentence

and 10 years of supervised release, that argument would trigger plain-error review

because Jones failed to raise it below. See United States v. Lente, 647 F.3d 1021,

1030 (10th Cir. 2011) (characterizing challenge to adequacy of district court’s

explanation for chosen sentence as procedural, as opposed to substantive, challenge);

United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008) (“As a

general rule, when a defendant fails to preserve an objection to the procedural

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reasonableness of his sentence, we review only for plain error.”). The same would be

true of any argument that the district court failed to consider the applicable policy

statements. See United States v. Franklin, 785 F.3d 1365, 1371 n.3 (10th Cir.), cert.

denied, 136 S. Ct. 523 (2015).

       Jones couldn’t satisfy our plain-error test here. In its initial order revoking

Jones’ supervised release, the district court explicitly stated that it had considered the

relevant policy statements. Likewise, at the initial revocation hearing, the district

court explained the basis for its sentencing decision: it noted (1) Jones’ “background

of gang-related activity”; (2) the severity of the violation; and (3) the need for

incapacitation. R. vol. 3, 64. Finally, in revoking Jones’ supervised release on

remand, the district court incorporated this earlier analysis by reference: it stated it

was “dispos[ing] of the matter on the very same basis.” Id. at 211. Accordingly, any

argument that the district court committed procedural error—let alone plain

procedural error—would be frivolous.

       Based on the district court’s finding that Jones committed murder less than one

month after his 2014 release, we reach the same conclusion about any substantive

challenge to the length of Jones’ sentence, despite the fact that it exceeds the

applicable 18-to-24-month recommendation. See U.S.S.G. § 7B1.4; United States v.

Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (“[A] sentence in excess of that

recommended by the Chapter 7 policy statements will be upheld ‘if it can be

determined from the record to have been reasoned and reasonable.’” (quoting United

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

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      Finally, we agree that any challenge to the district court’s decision to impose a

search condition would also be frivolous. Because Jones didn’t object to this

condition below, we would again review such a challenge only for plain error. United

States v. Barela, 797 F.3d 1186, 1192 (10th Cir. 2015). And because we’ve

previously upheld a more restrictive search condition in less egregious circumstances

under a more favorable standard of review, Jones couldn’t make a showing of plain

error here. See United States v. Hanrahan, 508 F.3d 962, 971 (10th Cir. 2007)

(holding that district court didn’t abuse its discretion in imposing suspicionless-

search condition where defendant had been “convicted of unlawfully possessing a

firearm”); see also United States v. Watson, 766 F.3d 1219, 1228 n.5 (10th Cir. 2014)

(describing “abuse-of-discretion standard” as “more generous” than “plain-error

standard”).

                                     CONCLUSION

      Because Jones’ appeal presents no issues that are arguable on their merits, we

dismiss the appeal and grant defense counsel’s motion to withdraw.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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