                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 2, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 11-3223
                                              (D.C. No. 2:06-CR-20034-JWL-1)
 v.                                                       D. Kansas
 LOLESTER B. MITCHELL,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


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



      After examining the briefs and 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.

I.    BACKGROUND

      In 2007, Defendant-Appellant Lolester Mitchell was convicted of providing

false statements in connection with the acquisition of a firearm, in violation of 18

      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 922(a)(6). He completed his term of incarceration on September 13,

2010, and began serving a three-year term of supervised release. On July 18,

2011, Mitchell’s supervised release was revoked and he was sentenced to eight

months’ imprisonment to be followed by a two-year term of supervised release.

Mitchell’s counsel filed an appellate brief pursuant to Anders v. California, 386

U.S. 738 (1967), and moved to withdraw as attorney of record. For the reasons

set forth below, we agree with counsel that the record in this case provides no

nonfrivolous basis for an appeal, and we therefore grant counsel’s motion to

withdraw and dismiss this appeal.

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).

Counsel is required, however, to submit a brief to both the defendant and this

court indicating any potential appealable issues. Id. The defendant may submit

additional arguments. “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.” Id. (citations

omitted). Mitchell’s counsel filed his Anders brief on October 21, 2011. In his

Anders brief, counsel has advised this court that Mitchell’s appeal is wholly

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frivolous. Mitchell was served a copy of the Anders brief and two notices from

this court but has not submitted any additional arguments. Our conclusions,

therefore, are based on counsel’s Anders brief and our own review of the record.

      In 2007, the district court imposed numerous conditions of supervision in

connection with Mitchell’s three-year term of supervised release. A general

condition of supervision prohibited Mitchell from committing another federal,

state, or local crime. A special condition required Mitchell to participate in an

approved program for substance abuse and share in the cost of such program

based on his ability to pay. A standard condition required Mitchell to “answer

truthfully all inquiries by the probation officer and follow instructions of the

probation officer.” During the final revocation hearing held on July 18, 2011,

Mitchell admitted he appeared in Topeka, Kansas Municipal Court on June 6,

2011, and pleaded no contest to the offense of battery. Mitchell also admitted

violating the terms of a protective order. Mitchell did not specifically stipulate

that he failed to report for drug testing in June and July of 2011, but conceded he

could not remember if he had so reported. Finally, Mitchell admitted failing to

report to the probation office as directed by his probation officer.

      Based on Mitchell’s admissions, the district court found he had violated

three conditions of supervised release. Mitchell was permitted to address the

court. The court then revoked Mitchell’s supervised release and sentenced him to

eight months of incarceration and two years of supervised release.

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       Nothing in the record indicates the admissions and stipulations Mitchell

made during the final revocation hearing were not knowing and voluntary or that

the district court’s findings are erroneous. The only other possible basis for an

appeal must relate to Mitchell’s sentence. The record, however, clearly shows the

sentence is reasoned and reasonable. The district court permitted Mitchell to

allocute before imposing the sentence. The court adequately considered the

factors referenced in 18 U.S.C. § 3583(e) and the imprisonment range

recommended by nonbinding policy statements in Chapter 7 of the Sentencing

Guidelines. See 28 U.S.C. § 994(a)(2); USSG § 7B1.4(a). After noting

Mitchell’s negative attitude and repeated refusal to comply with the conditions of

his supervised release, the court imposed a sentence of imprisonment at the low

end of the advisory range and well within the statutory limit for a Class C felony.

See 18 U.S.C. § 3583(e)(3).

III.   CONCLUSION

       After a review of the record, we agree with counsel that there is no

nonfrivolous basis upon which Mitchell could challenge either the revocation of

his supervised release or the sentence imposed by the district court. Accordingly,




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we conclude Mitchell’s appeal is wholly frivolous. Counsel’s motion to withdraw

is granted and this appeal is dismissed.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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