                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                February 10, 2009
                                   TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 08-1356
 v.                                            (D.C. No. 02-CR-105-WYD-2)
                                                         (D. Colo.)
 JEREMIE JOE PHILLIPS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      Jeremie Joe Phillips appeals the district court’s order revoking his

supervised release and committing him to the custody of the Bureau of Prisons for

a term of eleven months. His attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), advising us that he discerns no colorable basis

for the appeal, and seeking leave to withdraw. After careful review and for the




      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent except under the doctrines of law of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.
reasons we describe below, we grant the attorney’s motion to withdraw and

dismiss this appeal.

                                         ***

      In 2003, Mr. Phillips pled guilty to distributing fifty grams or more of

methamphetamine and to aiding and abetting such distribution. See 21 U.S.C.

§ 841(a)(1); 18 U.S.C. § 2. The district court sentenced him to eighty-one

months’ imprisonment followed by a five-year term of supervised release. After

Mr. Phillips was released from prison in January 2007, the district court modified

the terms of his supervised release to require him to abstain from the use of

alcohol and other intoxicants and to participate in a program of testing and

treatment for alcohol abuse.

      In September 2008, the district court found that Mr. Phillips had committed

eleven separate violations of the terms of his release. Through counsel, Mr.

Phillips admitted to these violations, which included repeated use of alcohol,

failure to comply with his treatment obligations, and the possession of a

controlled substance. The law requires the district court to revoke supervised

release and impose imprisonment when a defendant violates the terms of his

release by possessing a controlled substance. 18 U.S.C. § 3583(g). At the

sentencing hearing, the district court noted that Mr. Phillips’s record was “one of

the most disgusting records I’ve seen of noncompliance with supervised release.”

R., vol. II, at 5. The district court also explained that it believed Mr. Phillips

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“really [does not] have the desire to comply with the Court’s orders.” Id. The

district court therefore revoked Mr. Phillips’s supervised release and sentenced

him to eleven months’ imprisonment—the upper end of the range suggested by

the United States Sentencing Guidelines—to be followed by an additional term of

supervised release lasting forty-eight months. Mr. Phillips appeals.

      Mr. Phillips’s lawyer, the Federal Public Defender, filed a brief pursuant to

the rule in Anders. Anders authorizes a defendant’s lawyer to seek permission to

withdraw from an appeal if, “after a conscientious examination,” the lawyer finds

the appeal “wholly frivolous.” 386 U.S. at 744. Invoking Anders requires the

lawyer to “submit a brief to the client and the appellate court indicating any

potential appealable issues based on the record.” United States v. Calderon, 428

F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). The client may

then submit his own arguments for the court’s consideration. Id. We must then

“conduct a full examination of the record to determine whether the defendant’s

claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to

withdraw and dismiss the appeal. Id.

      According to the Anders brief before us, the defendant might object that the

district court should have permitted him to enter alcohol treatment instead of

prison, after crediting him with time served, and that the court’s failure to do this

renders its sentence unreasonable. The Anders brief asserts that this argument is

frivolous, however, and we agree. A proper sentence must be both procedurally

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and substantively reasonable. United States v. Algarate-Valencia, 550 F.3d 1238,

1242 (10th Cir. 2008). Procedural reasonableness requires that the district court

properly calculate the advisory guidelines range, and then consider what sentence

to impose in light of both the guidelines’ recommendation and the factors

enumerated in 18 U.S.C. § 3553(a). Id. at 1242-44. The district court need not

explicitly describe each factor or address each argument presented to it, so long

as it “somehow indicate[s] that [it] did not rest on the guidelines alone.” Id. at

1244. Here there is no allegation that the guidelines range was incorrectly

calculated or that the district court failed to consider the statutory factors; indeed,

the district court explicitly noted its consideration of § 3553(a)’s requirements at

the sentencing hearing. R., vol. II, at 10.

      Neither could there be any colorable argument that this within-guidelines

sentence is substantively unreasonable. The district court concluded that Mr.

Phillips’s unusually high number of violations within such a short time—in the

first eighteen months of his release—warranted a sentence at the upper end of the

guidelines. This was certainly not an abuse of the district court’s considerable

discretion. See United States v. Todd, 515 F.3d 1128, 1134-35 (10th Cir. 2008). 1


      1
        We have also reviewed the forty-eight-month term of supervised release
imposed by the district court following Mr. Phillips’s incarceration. This term
was within a properly-calculated guidelines range, see U.S.S.G. §7B1.3(g)(2), and
adequately explained by the district court. It was therefore procedurally
reasonable. Neither can we discern any basis in the record for questioning the
substantive reasonableness of the length of the term the district court imposed.

                                          -4-
      For his part, Mr. Phillips submitted a letter raising an additional claim that

his lawyer was constitutionally ineffective. Except in extraordinary

circumstances, claims of ineffective assistance of counsel should be brought on

collateral review rather than direct appeal. United States v. Brooks, 438 F.3d

1231, 1242 (10th Cir. 2006); see also United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir. 1995) (en banc) (“[Ineffective assistance] claims brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.”).

We have no indication on the record before us that this case presents a reason to

depart from the general rule.

      After review of the record, we agree with Mr. Phillips’s lawyer that there is

no colorable basis for appealing the district court’s sentence. Accordingly, we

grant counsel’s motion to withdraw and dismiss this appeal.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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