                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 6, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-2270
          v.                                            D. New Mexico
 BRIAN JONES,                                  (D.C. No. 2:04-CR-01840-RB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.



      After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Brian Jones appeals from the district court’s revocation of his term of

probation and imposition of a thirty-three month term of imprisonment. Jones’s




      *
        This order and judgment is not binding precedent except under the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.
counsel has filed an Anders brief, 1 asserting he could find no meritorious basis for

appeal and simultaneously moving to withdraw as counsel. For those reasons set

out below, this court grants counsel’s motion to withdraw and dismisses this

appeal.

      In April of 2004, the United States charged Jones with possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Based on an

anticipated offense level of twenty and a criminal history category I, Jones’s

advisory guidelines range was thirty-three to forty-one months’ imprisonment.

The parties, however, negotiated a plea deal with a five-year term of probation.

In June 2006, the district court accepted the plea agreement and sentenced Jones

accordingly. In so doing, the district court imposed several special conditions of

supervision Jones was required to comply with during his term of probation.

      In August 2009, the probation office discovered Jones had violated at least

four of the special conditions of release set forth in the district court’s judgment.

The United States, Jones’s representatives, and Jones worked cooperatively to

have Jones placed in a treatment facility for sexual offenders. Instead of revoking

Jones’s probation, the district court held the matter in abeyance pending Jones’s

completion of two in-patient treatment programs, one in California and one in

Arizona. Jones completed the program in California, but left the Arizona program

prior to completing treatment. The district court afforded Jones the opportunity

      1
          Anders v. California, 386 U.S. 738 (1967).

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to enroll in a treatment program similar to the Arizona program, but Jones failed

to do so in a timely manner.

      In November 2010, after a lengthy hearing on the matter, the district court

granted the government’s petition and revoked Jones’s probation. After engaging

in a lengthy colloquy with the parties, the district court sentenced Jones to thirty-

three months’ imprisonment, followed by a term of supervised release. In

arriving at a sentence of thirty-three months’ imprisonment, the district court

explicitly considered the factors set out in 18 U.S.C. § 3553(a) and the policy

statements set out in Chapter 7 of the United States Sentencing Guidelines:

             After evaluating the [§ 3553(a) factors], I find that Mr. Jones
      has continued to violate the conditions of his supervision by
      possessing a computer containing pornography, after being convicted
      of an offense that included possession of child pornography. In
      addition, he’s admitted to being at Young Park in Las Cruces on
      numerous occasions in violation of his conditions. Moreover, the
      defendant has failed to participate in court-ordered sex offender
      treatment. The Del Amo in-patient sex offender program indicated,
      in their discharge summary, that Mr. Jones was a low risk to the
      community if he continued to follow his recovery plan, to include
      placement and completion of the in-patient sex offender program at
      the Prescott House for a period of six months. Mr. Jones, as I’ve
      indicated, failed to complete the Prescott House program and was
      unsuccessfully discharged therefrom. These combined circumstances
      demonstrate a history of conduct that imposes a risk to the
      community and shows a lack of respect for the law.

            Based on these findings, I’ve determined that a sentence above
      the advisory revocation Guideline imprisonment range is reasonable
      and sufficient, but not greater than necessary, to accomplish the
      sentencing goals. The defendant, Mr. Jones, is committed to the
      custody of the Bureau of Prisons for a term of 33 months. I’ll
      recommend that he be designated to the Bureau of Prisons’

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      residential sex offender treatment program, such as FMC Devens in
      Devens, Massachusetts. It’s also recommended that in the event Mr.
      Jones refuses to participate in sex offender treatment that he be
      evaluated by the BOP for possible certification as a sexually
      dangerous person. I’ll recommend that the Bureau of Prisons notify
      this court as to the location of Mr. Jones’ designation.

Jones appeals from the sentence imposed by the district court.

      Appellate counsel has filed an Anders brief advising the court that this

appeal is wholly frivolous. Accordingly, counsel seeks permission to withdraw.

Pursuant to Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit an appellate brief “indicating any potential

appealable issues.” Id. Once notified of counsel’s brief, the defendant may then

submit additional arguments to this court. Id. We “must then conduct a full

examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id. This court notified Jones of counsel’s Anders brief, but Jones did

not file a response. The government declined to file a brief. Thus, our resolution

of the case is based on counsel’s Anders brief and this court’s independent review

of the record. That independent review confirms counsel’s assertion that this

appeal is meritless.

      Jones directed appellate counsel to contend the thirty-three month sentence

imposed by the district court is unreasonably long. See United States v. Torres-


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Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006) (noting an assertion a sentence is

too long is a challenge to the substantive reasonableness of the sentence). As

recognized by counsel, Jones’s challenge to the substantive reasonableness of his

sentence is undeniably meritless. Pursuant to 18 U.S.C. § 3565(a)(2), the district

court was entitled to revoke Jones’s term of probation and impose any term of

imprisonment that was available at the initial sentencing proceeding. In arriving

at a thirty-three month sentence, the district court specifically recognized that

Chapter Seven of the Sentencing Guidelines recommended a sentence of three to

nine months’ imprisonment, but concluded such a sentence was insufficient to

protect the public and promote respect for the law. In particular, the district court

found that although Jones was given numerous chances to complete the sex-

offender treatment mandated by the special conditions of his probation, he had

failed to complete the required treatment. Furthermore, the evidence indicated

Jones had visited a children’s park with materials (a doll, candy bars, and twine)

suggesting a possibility he intended to kidnap a child. Finally, the record

revealed that without the required treatment, Jones was a risk to the public.

Given these factors, the district court was certainly entitled to conclude a

sentence well above the range set out in Chapter Seven was required to protect the

public and promote respect for the law. Accordingly, the district court’s reasoned

and reasonable analysis is clearly consistent with the sentencing factors set out in

18 U.S.C. § 3553(a). See 18 U.S.C. § 3565 (directing district courts to consider

                                          -5-
§ 3553(a) sentencing factors in sentencing a defendant upon revocation of parole).

This court’s independent review of the record verifies counsel’s determination

that any challenge to the substantive reasonableness of Jones’s sentence is

meritless.

      Jones also directed appellate counsel to raise a claim that his trial counsel

was ineffective. As recognized by appellate counsel, however, it is well-settled

that ineffective assistance of counsel claims should ordinarily be brought in

collateral proceedings and not on direct appeal. United States v. Calderon, 428

F.3d 928, 931 (10th Cir. 2005). “Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” Id. (quotation

omitted). Because Jones’s claim of ineffective assistance of trial counsel cannot

be decided on the basis of the current appellate record, we decline to address the

issue and dismiss it without prejudice to raising it in a properly filed motion for

post-conviction relief pursuant to 28 U.S.C. § 2255.

      Pursuant to the Anders mandate, this court has undertaken an independent

review of the entire record in this case. Calderon, 428 F.3d at 930. Our review

demonstrates that each of the issues Jones directed appellate counsel to advance is




                                          -6-
undeniably frivolous. Likewise, our review reveals no other potentially

meritorious issues. Accordingly, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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