                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 23, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 13-2195
                                              (D.C. No. 1:98-CR-00338-JAP-2)
 MARCUS DALLAS,                                         (D. of N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      Marcus Dallas appeals the twelve month and one day sentence imposed by

the district court for violating the terms of his supervised release. Mr. Dallas’s

counsel moved to withdraw, pursuant to Anders v. California, 386 U.S. 738

(1967), on the ground that the only potential appealable issue, the reasonableness




      *
         This order and judgment is not binding precedent except under the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.
      **
         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 cause is therefore ordered submitted without oral argument.
of Dallas’s sentence, is wholly frivolous. We have jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291.

      Because we agree there are no meritorious issues to be raised on appeal, we

grant the motion to withdraw and dismiss the appeal.

                                 I. Background

      In 1998, Dallas pleaded guilty to possession with intent to distribute more

than 500 grams of a mixture and substance containing cocaine in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The district court sentenced Dallas to 30

months’ imprisonment followed by four years of supervised release.

      In 2001, Dallas violated the conditions of his supervised release, and he

was sentenced to an additional four months’ imprisonment followed by two years

supervised release. Soon after Dallas finished serving his additional time, the

government again petitioned to revoke Dallas’s supervised release, alleging that

he had violated several conditions of his release. In 2002, while still on

supervised release, Dallas was indicted on a state murder charge. He was later

convicted of second-degree murder and sentenced by the state court to 12 years’

imprisonment followed by four years’ probation. After his state conviction, the

government amended its earlier revocation petition to include Dallas’s violation

of the mandatory condition of his release that he not commit another crime.

      In 2013, after his state incarceration was complete, Dallas came before the

district court on his supervised release violations. The district court sentenced

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Dallas to twelve months and one day in prison with no further period of

supervised release. The United States Sentencing Guidelines recommended a

range of 12 to 18 months’ imprisonment based on Dallas’s commission of a Grade

A release violation and his criminal history category of I. See U.S. Sentencing

Guidelines Manual § 7B1.4 (2013) (revocation table). At sentencing, the district

court stated that it had reviewed the violation report and the factors under 18

U.S.C. § 3553. The court determined that a low-end sentence with no additional

supervised release was appropriate given the time that had lapsed since the

violations occurred and Dallas’s pending state parole and probation obligations

stemming from his murder conviction.

      After timely filing a notice of appeal, Dallas’s counsel moved to withdraw

and filed an Anders brief. The government did not file a brief in response. Dallas

was notified of his right to respond to the Anders brief, but did not do so.

                                  II. Discussion

      Under Anders, if a defendant’s counsel decides “after a conscientious

examination” of the case that the defendant’s appeal is “wholly frivolous,” he

may request permission to withdraw after submitting a brief identifying “anything

in the record that might arguably support the appeal.” Anders, 386 U.S. at 744.

We then conduct “a full examination of all the proceedings,” and, if we agree

with counsel that there are no “legal points arguable on their merits,” we may

grant the motion to withdraw and dismiss the appeal. Id. The only potentially

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appealable issue identified by Dallas’s counsel is the procedural and substantive

reasonableness of Dallas’s sentence.

      We review sentencing decisions for reasonableness under a deferential

abuse-of-discretion standard. United States v. Huckins, 529 F.3d 1312, 1317

(10th Cir. 2008). A sentence must be both procedurally and substantively

reasonable. United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). Our

review of procedural reasonableness “focuses on whether the district court erred

in calculating or explaining the sentence. Substantive reasonableness focuses on

whether the length of the sentence is reasonable in light of the factors contained

in 18 U.S.C. § 3553(a).” United States v. Halliday, 665 F.3d 1219, 1222 (10th

Cir. 2011) (citation and internal quotation marks omitted). A sentence that falls

within the properly calculated guidelines range is presumed to be substantively

reasonable. United States v. McBride, 633 F.3d 1229, 1233 (10th Cir. 2011)

(noting that the presumption applies “in reviewing a revocation-of-supervised-

release sentence within the range suggested by the Commission’s policy

statements”).

      We agree with defense counsel that nothing in the record suggests Dallas’s

sentence was either procedurally or substantively unreasonable. Procedurally, the

district court stated that it considered the factors listed in § 3553(a) and the court

imposed a sentence at the bottom end of the range recommended by the Chapter 7




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policy statement. See United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010).

Accordingly, there was no procedural error.

      Substantively, the within-guidelines sentence is entitled to a presumption of

reasonableness. See McBride, 633 F.3d at 1232–33. We see no non-frivolous

basis in the record to rebut that presumption. See United States v. Dunbar, 718

F.3d 1268, 1282 (10th Cir. 2013) (noting that we reverse a sentence for

substantive unreasonableness “only if the sentence, in light of the sentencing

factors referenced in 18 U.S.C. § 3553(e), was an abuse of discretion because it

was ‘arbitrary, capricious, whimsical, or manifestly unreasonable’” (quoting

United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012))).

      In sum, the district court’s sentence of twelve months and one day was both

procedurally and substantively reasonable. Therefore, the district court did not

abuse its discretion.

                                III. Conclusion

      After conducting a full review of the record, we conclude there is no non-

frivolous ground for Dallas’s appeal. Therefore, the motion to withdraw is

GRANTED and the appeal is DISMISSED.

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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