                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS May 17, 2013
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-3203
 v.
                                           (D.C. No. 2:95-CR-20039-KHV-JPO-1)
                                                          (D. Kan.)
 THOMAS WAYNE WHITLOW,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Defendant-Appellant Thomas Wayne Whitlow stipulated to violating the

conditions of his supervised release. He appeals his sentence of twelve months

and one day’s imprisonment followed by one year of supervised release. We are

addressing Mr. Whitlow’s appeal under the analytical framework established by




      *
             This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore
ordered submitted without oral argument.
Anders v. California, 386 U.S. 738 (1967). 1 For the reasons that follow, we

affirm the judgment and sentence of the district court. We also grant the request

of Mr. Whitlow’s counsel to withdraw from further representation of Mr. Whitlow

in this matter.

                                         I

      The parties are familiar with the facts and procedural history of this case,

and we need not restate either at length. Mr. Whitlow stipulated to three

violations of the conditions of his supervised release: he had used marijuana and

thus failed to refrain from unlawful use of a controlled substance; he had not

obtained gainful employment; and he had not answered truthfully all inquiries by

his probation officer. Because each of these violations was a Class C violation,

and because Mr. Whitlow’s criminal history category was IV, the resulting

Guidelines range was eight to fourteen months’ imprisonment. The district court

imposed a sentence of twelve months and one day’s imprisonment followed by

one year of supervised release.

      Mr. Whitlow, through his counsel, filed a timely notice of appeal. Pursuant

to the framework established in Anders, Mr. Whitlow’s counsel then filed a brief

setting forth the potential issues for appeal and requesting permission to withdraw


      1
              The Supreme Court held in Anders that if defense counsel determines
that his client’s appeal is “wholly frivolous,” counsel must inform the court,
request permission to withdraw, and also submit “a brief referring to anything in
the record that might arguably support the appeal.” 386 U.S. at 744.

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from further representation of Mr. Whitlow in this matter. The Anders brief

identifies two potential issues: the procedural and substantive reasonableness of

Mr. Whitlow’s sentence.

                                         II

      “[S]entences are reviewed under an abuse of discretion standard for

procedural and substantive reasonableness.” United States v. Gordon, 710 F.3d

1124, 1160 (10th Cir. 2013) (alteration in original) (quoting United States v.

Snow, 663 F.3d 1156, 1160 (10th Cir. 2011)) (internal quotation marks omitted).

“[W]e review the district court’s legal conclusions de novo and its factual

conclusions for clear error.” United States v. Gallant, 537 F.3d 1202, 1234 (10th

Cir. 2008). “A district court abuses its discretion when it renders a judgment that

is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Damato, 672 F.3d 832, 838 (10th Cir. 2012) (quoting United States v. Lewis, 594

F.3d 1270, 1277 (10th Cir. 2010)) (internal quotation marks omitted).

      “Procedural reasonableness focuses on whether the district court erred in

‘calculating or explaining the sentence.’” United States v. Halliday, 665 F.3d

1219, 1222 (10th Cir. 2011) (quoting United States v. Friedman, 554 F.3d 1301,

1307 (10th Cir. 2009)). More specifically, procedural errors include “failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

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chosen sentence—including an explanation for any deviation from the Guidelines

range.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)) (internal quotation marks omitted).

“[S]ubstantive reasonableness review broadly looks to whether the district court

abused its discretion in weighing permissible § 3553(a) factors in light of the

‘totality of the circumstances.’” Id. at 1118 (quoting Gall, 552 U.S. at 51).

                                         III

      With respect to the procedural reasonableness of Mr. Whitlow’s sentence,

the district court “must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Gall, 552 U.S. at 48. Here, at the request of Mr. Whitlow’s counsel for additional

findings regarding the district court’s decision to impose a term of supervised

release, the district court explicitly gave its reasons for doing so. There is no

evidence in the record that the district court improperly calculated the Guidelines

range, failed to consider the § 3553(a) factors, or relied on clearly erroneous facts

in selecting a sentence. See Sayad, 589 F.3d at 1116. Thus, we conclude that

there is no basis for a non-frivolous challenge to the procedural reasonableness of

Mr. Whitlow’s sentence.

      Turning to the substantive reasonableness of Mr. Whitlow’s sentence, the

district court sentenced Mr. Whitlow to twelve months and one day’s

imprisonment, a sentence within the relevant advisory Guidelines range of eight

                                         -4-
to fourteen months’ imprisonment. Because the sentence is within the Guidelines

range, it is presumptively reasonable. See United States v. McBride, 633 F.3d

1229, 1232–33 (10th Cir. 2011) (“We have applied a presumption of

reasonableness in reviewing within-guidelines sentences imposed upon

conviction. . . . [T]hat presumption is also appropriate in reviewing a revocation-

of-supervised-release sentence within the range suggested by the Commission’s

policy statements.” (citations omitted)); see also United States v. Kristl, 437 F.3d

1050, 1055 (10th Cir. 2006) (“If . . . the district court properly considers the

relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable.”). As the Anders brief notes, Mr. Whitlow

may disagree with the district court’s decision to impose an additional term of

supervised release, but that disagreement does not amount to a showing of abuse

of discretion. Thus, we cannot discern any basis here for a non-frivolous

contention that Mr. Whitlow’s sentence is substantively unreasonable.

      In sum, the record does not support a finding that Mr. Whitlow’s sentence

was procedurally or substantively unreasonable.

                                          IV

      Having conducted a thorough, independent examination of the record, we

conclude that there are no non-frivolous issues to present on appeal. Therefore,

we affirm the district court’s judgment and sentence, and we grant the request of




                                          -5-
Mr. Whitlow’s counsel to withdraw from further representation of Mr. Whitlow in

this matter.



                                     ENTERED FOR THE COURT


                                     Jerome A. Holmes
                                     Circuit Judge




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