                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                         December 19, 2014

                                                                        Elisabeth A. Shumaker
 UNITED STATES OF AMERICA,                                                  Clerk of Court

        Plaintiff - Appellee,
                                                             No. 14-2106
 v.                                                (D.C. No. 1:09-CR-03069-WJ-2)
                                                          (D. New Mexico)
 REUBEN MARTIN,

       Defendant – Appellant.
 _______________________________

 UNITED STATES OF AMERICA,

        Plaintiff – Appellee,
                                                             No. 14-2107
 v.
                                                   (D.C. No. 1:12-CR-02225-WJ-1)
                                                          (D. New Mexico)
 REUBEN MARTIN,

        Defendant – Appellant.


                                ORDER AND JUDGMENT*


Before GORSUCH, MURPHY and McHUGH, Circuit Judges.




       * This order and judgment is not binding precedent, except under the doctrines of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 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); 10th Cir. R. 34.1(G). This cause is therefore

ordered submitted without oral argument.

       Reuben Martin filed a notice of appeal from the revocation of his supervised

release and the imposition of an eight-month prison term followed by a new two-year

period of supervised release. His appointed counsel moved to withdraw and filed a brief

based on Anders v. California, 386 U.S. 738 (1967), stating that after a diligent search of

the record, he has found no meritorious issues for appeal. Exercising jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and finding no grounds for appeal that are not

“wholly frivolous,” we grant counsel’s motion to withdraw and dismiss the appeal.

                                 I.     BACKGROUND

       Mr. Martin was convicted of robbery, in violation of 18 U.S.C. §§ 1153 and 2111,

and escape, in violation of 18 U.S.C. § 751(a). He was sentenced to forty-one months

imprisonment followed by three years of supervised release for the robbery, and eight

months imprisonment followed by three years of supervised release for the escape.

Special conditions of supervised release required Mr. Martin to participate in and

successfully complete an outpatient substance abuse treatment program and an outpatient

mental health treatment program.

       Mr. Martin commenced supervised release on September 6, 2013. In February of

2014, the terms of Mr. Martin’s supervised release were modified to require him to “enter
                                            -2-
and complete a residential treatment program as approved by the probation officer.”

Mr. Martin was accepted at the Na’Nizhoozhi Center (the Center), a treatment facility in

Gallup, New Mexico. The Center applies treatments based in traditional Native American

practices. Mr. Martin entered treatment at the Center on February 13, 2014.

       On February 27, 2014, Mr. Martin left the Center. The Center refused to allow him

to return, and he was unable to complete the residential treatment program. The United

States then petitioned to revoke Mr. Martin’s supervised release based on his failure to

complete the residential treatment program as ordered.

       Mr. Martin admitted that he did not complete the program and that he had

therefore violated a special condition of his supervised release. But Mr. Martin attempted

to explain his violation. He presented evidence that a doctor prescribed him mental health

medication. Mr. Martin alleged the Center took him off the medication, which caused

him to leave the facility.1 Mr. Martin’s counsel conceded that this evidence and argument

related only to the appropriate sentence for a violation of the terms of supervised release,

not to whether there was actually a violation. Mr. Martin also elicited testimony implying




       1
         Contrary to the allegations in counsel’s Anders brief, we find no evidence in the
record that Mr. Martin testified he was taken off his medication, became disoriented and
panicky, and then left the facility. Mr. Martin’s counsel claimed in the revocation hearing
that those facts were true, but did not support them with testimony. “Counsel’s arguments
are not evidence.” Luevano v. Holder, 660 F.3d 1207, 1213 (10th Cir. 2011).


                                             -3-
he was prevented from practicing his religion in the Center.2

       The district court revoked Mr. Martin’s supervised release. It determined the

United States Sentencing Guidelines (Guidelines) range for his revocation included a

prison term of six to twelve months because this was a Grade C violation and Mr.

Martin’s fell into criminal history category IV. U.S.S.C. §§ 7B1.1, 7B1.4. The district

court then sentenced Mr. Martin to eight months imprisonment followed by two years of

supervised release.

       Mr. Martin filed a pro se notice of appeal. His appointed counsel, who represented

him in the revocation proceedings, then filed an Anders brief and motion to withdraw.

The Government notified the court that it would not oppose the motion. Mr. Martin was

notified of his counsel’s Anders motion, and he has not filed a response.

                                   II.    DISCUSSION

       Under 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) (citing Anders,

386 U.S. at 744). In doing so, “counsel must submit a brief to the client and the appellate

court indicating any potential appealable issues based on the record.” Id. We must then


       2
         Again, Mr. Martin did not actually present evidence that he was prevented from
practicing his religion while at the Center. Instead, his counsel asked the probation officer
about the importance of religion in Mr. Martin’s life and whether that religion could be
practiced at the Center. The probation officer testified that she had never had a problem
with probationers seeking to practice religion at the Center.

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independently examine the record to determine whether the defendant’s claims are

“wholly frivolous,” and, if so, we may grant counsel’s motion to withdraw and dismiss

the appeal. Id.

       In his Anders brief, counsel identifies no grounds for appeal. In undertaking our

independent examination of the record, we have identified three potential grounds for

appeal: that his counsel was ineffective; that his supervised release should not have been

revoked because his mental health difficulties were exacerbated by the treatment facility;

and that Mr. Martin’s sentence was unreasonable. We now consider whether any of these

issues would provide a nonfrivolous ground for appeal of the revocation of Mr. Martin’s

supervised release and his sentence.

       The first potential basis for appeal, ineffective assistance of counsel, is not

appropriately brought on direct appeal. “Ineffective assistance of counsel claims should

be brought in collateral proceedings, not on direct appeal.” United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995) (en banc). Thus, “when brought on direct appeal,

ineffective assistance of counsel claims are presumptively dismissible, and virtually all

will be dismissed.” United States v. Trestyn, 646 F.3d, 741 (10th Cir. 2011) (internal

quotations omitted). “[E]ven if the record appears to need no further development, the

claim should still be presented first to the district court . . . .” Galloway, 56 F.3d at 1240.

We see no reason to depart from that general rule in this case.

       The second potential basis for appeal, a challenge to the revocation of his

supervised release, fails because there was not sufficient evidence presented below to
                                              -5-
show Mr. Martin was forced to choose between his mental health treatment and

compliance with the Center’s requirements. In United States v. Hill, 216 F.3d 1088 (10th

Cir. 2000) (unpublished),3 Mr. Hill appealed the revocation of his supervised release after

he failed to participate in mental health counseling and failed to provide certain financial

information to the probation office. Id. at *1. Mr. Hill’s counsel moved to withdraw and

filed an Anders brief. Id. In his pro se brief in response to the Anders brief, Mr. Hill

alleged, among other things, that the probation officer conspired with his mental health

doctor to make it difficult for him to comply with the requirement that he participate in

mental health counseling. Id. at *2. We rejected that challenge to revocation because Mr.

Hill did not provide an evidentiary basis for his argument and made only conclusory

claims regarding the probation officer’s activities. Id. at *3.

       Here, Mr. Martin’s counsel provided only conclusory statements at the revocation

hearing that Mr. Martin’s mental health deteriorated after he began treatment at the

Center, and that the Center prevented Mr. Martin from taking his medication and caused

Mr. Martin’s departure from the facility. “Counsel’s arguments are not evidence.”

Luevano v. Holder, 660 F.3d 1207, 1213 (10th Cir. 2011). Mr. Martin did not testify

regarding his mental health or mental state. Mr. Martin’s counsel did not elicit testimony

from the probation officer or Mr. Martin that the Center prevented Mr. Martin from


       3
        Though not precedential, we find the reasoning of this court’s unpublished
opinions instructive. See 10th Cir. R. 32.1 (“Unpublished opinions are not precedential,
but may be cited for their persuasive value.”).

                                              -6-
taking prescribed medication. The record reveals only that Mr. Martin had a prescription

for medication that would treat a mental illness and that the probation officer had not

observed problems with prior probationers obtaining their medication at the Center. Thus,

the record does not provide an adequate basis to challenge the revocation of Mr. Martin’s

supervised release.

       The third potential basis for appeal, the reasonableness of Mr. Martin’s sentence,

also does not provide a nonfrivolous ground for appeal. When a person violates the

conditions of supervised release, the district court may modify the conditions of release

or revoke the term of supervised release and impose prison time. See 18 U.S.C.

§ 3583(e)(2); Fed. R. Crim. P. 32.1(b); U.S.S.G. § 7B1.3(a); United States v. Kelley, 359

F.3d 1302, 1304 (10th Cir. 2004). When fashioning a sentence following revocation, the

district court must “consider both [U.S.S.G.] Chapter 7’s policy statements as well as a

number of the factors provided in 18 U.S.C. § 3553(a).”4 United States v. Cordova, 461

F.3d 1184, 1188 (10th Cir. 2006) (citation omitted). A court is not required to “consider

individually each factor listed in § 3553(a),” id. at 1189 (internal quotations omitted), but

the sentencing court must “state in open court the reasons for its imposition of the

particular sentence.” 18 U.S.C. § 3553(c).


       4
        The Chapter 7 policy statements address violations of supervised release and
recommend advisory sentencing ranges. See generally U.S.S.G. Ch. 7. The § 3553(a)
sentencing factors include, in part, the nature of the offense, the history and
characteristics of the defendant, and the need for the sentence to provide adequate
deterrence and protect the public. See 18 U.S.C. § 3553(a).

                                             -7-
       We review a challenge to a revocation sentence for abuse of discretion, reviewing

factual findings for clear error and legal conclusions de novo. United States v. Tsosie, 376

F.3d 1210, 1217–18 (10th Cir. 2004). A district court exceeds its discretion when it

renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.

See United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010). A sentence must be

“reasoned and reasonable.” United States v. Contreras-Martinez, 409 F.3d 1236, 1241

(10th Cir. 2005). A “reasoned” sentence is one that is “procedurally reasonable,” while a

“reasonable” sentence is one that is “substantively reasonable.” United States v. McBride,

633 F.3d 1229, 1232 (10th Cir. 2011). “Procedural review asks whether the sentencing

court committed any error in calculating or explaining the sentence.” United States v.

Alapizco-Valenzuela, 546 F.3d 1208, 1214–15 (10th Cir. 2008). “[S]ubstantive

reasonableness addresses whether the length of the sentence is reasonable given all the

circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United

States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (internal quotation marks

omitted). We presume that a sentence following revocation of supervised release that

falls within the range suggested by the Commission’s policy statements is reasonable.

McBride, 633 F.3d at 1233.

       In this case, the advisory Guidelines range for Mr. Martin on revocation is six to

twelve months. After considering the advisory range, acknowledging Mr. Martin’s

history of prior offenses and his personal history and characteristics, the district court

imposed a sentence of eight months imprisonment. Thus, the district court properly
                                             -8-
considered both the advisory range from Chapter 7’s policy statements and the § 3553(a)

factors before imposing a within-guidelines sentence. The record provides no basis to

conclude that the sentence is procedurally or substantively unreasonable.

      We therefore find nothing in the record that would provide nonfrivolous grounds

for Mr. Martin to appeal.

                                 III.   CONCLUSION

      For the foregoing reasons, we grant counsel’s motion to withdraw and dismiss

Mr. Martin’s appeal.

                                         ENTERED FOR THE COURT


                                         Carolyn B. McHugh
                                         Circuit Judge




                                           -9-
