                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                        UNITED STATES COURT OF APPEALS                  September 22, 2015

                                                                        Elisabeth A. Shumaker
                                     TENTH CIRCUIT                          Clerk of Court



    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                       No. 14-5149
                                                          (N.D. Oklahoma)
    JAMES ANTHONY CLARK,                           (D.C. No. 4:14-CR-00032-JHP-1)

          Defendant - Appellant.




                                  ORDER AND JUDGMENT*


Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.


         Defendant James Clark appeals from a judgment of the United States District

Court for the Northern District of Oklahoma, which revoked his supervised release and


*
  After examining the brief and appellate record, this panel has determined unanimously
to honor the party’s 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 ordered submitted without
oral argument. This order and judgment is not binding precedent, except under the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.
imposed a 10-month term of imprisonment followed by a 26-month term of supervised

release. After reviewing the record and finding no issues that could support an appeal,

Defendant’s appellate counsel filed an Anders brief and moved to withdraw as counsel.

See Anders v. California, 386 U.S. 738, 744 (1967) (defense attorney who concludes after

conscientious examination that an appeal would be “wholly frivolous” may “so advise the

court and request permission to withdraw”); United States v. Calderon, 428 F.3d 928,

930 (10th Cir. 2005); 10th Cir. R. 46.4(B)(1). Defendant and the government had the

opportunity to respond to counsel’s filings but did not do so. Our jurisdiction arises

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Based on our own “full examination of

all the proceedings,” Anders, 386 U.S. at 744, we agree with counsel that there are no

nonfrivolous issues for appeal. We therefore dismiss this appeal and grant counsel’s

motion to withdraw.

       Defendant had been convicted of possession with intent to distribute 100

kilograms or more of marijuana and sentenced to 18 months in prison and four years of

supervised release. In April 2014, Defendant’s probation officer filed an Order on

Supervised Release alleging that Defendant had violated several release conditions,

including by failing to provide urine specimens for drug testing on numerous occasions

and by testing positive for amphetamines in December 2013. On April 29 Defendant was

released to enter into inpatient drug treatment.

       Defendant was unsuccessfully discharged from the drug-treatment program on

August 28, 2014, for violating program rules and testing positive for amphetamines. In
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September 2014 the probation officer filed a Superseding Order on Supervised Release

alleging violations of supervised-release conditions occurring before and after Defendant

entered the program. The Superseding Order attached a document that notified

Defendant of the test result and advised that use of prohibited substances constituted a

violation of his release conditions and that he had a right to a hearing to determine

whether he had violated his release conditions. Defendant signed this document, attesting

that he had read and understood the notice and was aware of his rights, and checked a box

next to the statement, “I admit to illegal use of a prohibited controlled substance as

indicated by the above-reported urine test result.” R., Vol. I at 32.

       When Defendant appeared before the district court on November 21, 2014, his

counsel stated that Defendant had been advised of his right to a hearing on the

Superseding Order and that it was “his desire to waive his right to that hearing and to

stipulate to the allegations that are made therein.” Id., Vol. II at 8. The court confirmed

with Defendant that he wished to waive the hearing, and that he understood the rights he

would be giving up if he did. When asked again if he wanted to waive the hearing,

Defendant replied, “Yes, sir. I think this is probably wasting enough of your time.” Id. at

10. He also indicated his understanding that the court could revoke his supervised release

and could impose a sentence in accordance with the imprisonment range of 8 to 14

months recommended in USSG §	7B1.4 or a sentence of up to 36 months’ imprisonment

on Defendant’s original offense under 18 U.S.C. § 3583(e)(3).


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       After reconfirming that Defendant wished to waive an evidentiary hearing, the

court stated that it found by a preponderance of the evidence that Defendant had violated

his supervised-release conditions and recited the numerous violations alleged by the

probation officer. The court did not ask Defendant to affirm that he stipulated to the

probation officer’s allegations. But Defendant addressed the court without contesting his

counsel’s representation at the outset of the hearing that he wished to stipulate to the

allegations, and without advising the court that he disputed any allegation. The court

revoked Defendant’s supervised release and imposed a sentence of 10 months’

imprisonment with a 26-month term of supervised release. Defendant timely appealed.

       The Anders brief notes the following as rendering Defendant’s appeal wholly

frivolous: (1) Defendant stipulated through counsel to the Superseding Order’s

allegations that he violated numerous supervised-release conditions, and personally

waived his right to an evidentiary hearing with an understanding of what the hearing

entailed. (2) There was no arguable error in the district court’s acceptance of the

stipulation and waiver or its revocation decision. (3) The sentence is within the correctly

calculated range recommended by the applicable guidelines policy provisions and so is

presumed to be reasonable, and no claim overcomes that presumption. After conducting

a full review of the record, we agree with counsel that there are no nonfrivolous grounds

for appeal.




                                              4
We DISMISS the appeal and GRANT counsel’s motion to withdraw.

                              ENTERED FOR THE COURT


                              Harris L Hartz
                              Circuit Judge




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