                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  November 2, 2015
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                     Clerk of Court
                       _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                       No. 15-5026
                                               (D.C. No. 4:13-CR-00142-JED-1)
JAMES CARL FITZPATRICK, JR.,                          (N. D. Oklahoma)

       Defendant - Appellant.
                    _________________________________

                           ORDER AND JUDGMENT *
                       _________________________________

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. James Fitzpatrick, Jr. pleaded guilty to possession of a firearm and

ammunition after a felony conviction. The sentence included a three-year term of

supervised release.

      The government sought revocation of supervised release, and Mr.

Fitzpatrick stipulated that he had violated the conditions by (1) committing a



*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed.
R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal
based on the briefs.

      Our order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
crime, (2) drinking to excess, (3) driving under the influence of alcohol, (4) using

PCP, cocaine, and marijuana, and (5) leaving his residence without permission

from the probation department. The district court revoked the term of supervised

release and imposed a new sentence of 11 months in custody and 25 months of

supervised release. Mr. Fitzpatrick appeals.

      His counsel filed a brief invoking Anders v. California, 386 U.S. 738

(1967), and moved to withdraw based on the absence of any arguably meritorious

appeal points. We conclude that the only grounds for appeal would be frivolous.

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

I.    The Nature of Our Inquiry

      Under Anders, attorneys can seek leave to withdraw from an appeal when

they conscientiously examine a case and determine that an appeal would be

frivolous. Anders, 386 U.S. at 744. To obtain leave to withdraw, an attorney must

      submit a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client may then
      choose to submit arguments to the court. The [c]ourt must then conduct
      a full examination of the record to determine whether defendant’s
      claims are wholly frivolous. If the court concludes after such an
      examination that the appeal is frivolous, it may grant counsel’s motion
      to withdraw and may dismiss the appeal.

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

omitted).




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       Defense counsel filed a brief, and Mr. Fitzpatrick bypassed the opportunity

to file his own brief. In these circumstances, we base our decision on (1) the brief

filed by defense counsel, and (2) the record on appeal.

II.    Consideration of Possible Appeal Points

       Nothing in defense counsel’s brief or the record suggests an error in the

guideline calculation, and the sentence fell within the guideline range. As a result,

the sentence is presumptively reasonable in length. See United States v. Trent,

767 F.3d 1046, 1051 (10th Cir. 2014), cert. denied, __ U.S. __, 135 S. Ct. 1447

(2015). This presumption is rebuttable, but Mr. Fitzpatrick bears the burden of

showing that the sentence is unreasonable under the sentencing factors in 18

U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006) (per curiam). He has not filed anything to satisfy that burden.

III.   Conclusion

       In the absence of any arguably meritorious appeal points, we grant defense

counsel’s motion to withdraw and dismiss the appeal.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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