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

                            FOR THE TENTH CIRCUIT                           November 30, 2018
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-3115
                                                    (D.C. No. 5:13-CR-40018-DDC-3)
 ALONZO NATHAN LAX,                                             (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, MATHESON, and EID, Circuit Judges.
                 _________________________________

                                  I. BACKGROUND

       In 2015, Alonzo Nathan Lax pled guilty to one count of interference with

commerce by means of robbery in violation of 18 U.S.C. § 1951(a) and one count of

use, carry, and brandish of a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. §§ 924(c)(1)(A) & (c)(2). He was sentenced to 43 months in

prison followed by three years of supervised release.

       In 2017, Mr. Lax admitted to violations of his supervised release conditions

for failure to return to his re-entry center and for testing positive for



       *
         This order and judgment is not binding precedent, except under the doctrines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.
methamphetamine. The district court revoked his supervised release and sentenced

him to eight months in prison followed by 18 months of supervised release.

      In 2018, Mr. Lax admitted to supervised release violations for possession and

use of methamphetamine, for failure to participate in his substance abuse program,

and for associating with a person engaged in criminal activity. The parties

recommended an eight-month sentence and no supervised release.

      The district court, noting the advisory sentencing guideline range was 8 to 14

months and that Mr. Lax had committed drug offenses while on supervised release,

revoked his supervised release and sentenced him to 14 months in prison and no

supervised release.

      Counsel for Mr. Lax filed a notice of appeal, an entry of appearance, and a

brief based on Anders v. California, which provides that:

                    [I]f counsel finds [the defendant’s] case to be
             wholly frivolous, after a conscientious examination of it,
             he should so advise the court and request permission to
             withdraw. That request must, however, be accompanied
             by a brief referring to anything in the record that might
             arguably support the appeal . . . [T]he court—not
             counsel—then proceeds, after a full examination of all the
             proceedings, to decide whether the case is wholly
             frivolous. If it so finds it may grant counsel’s request to
             withdraw and dismiss the appeal . . . .

386 U.S. 738, 744 (1967). The Anders brief identifies one potential issue: whether

the district court erred when it imposed a 14-month prison sentence rather than

accepting the parties’ eight-month recommended sentence. The brief concludes there

is no non-frivolous basis to argue for error.


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      First, the brief points out that, although the court did not advise Mr. Lax that it

was not bound by the parties’ agreement, no objection was made and Mr. Lax cannot

establish plain error because he cannot show that he would not have admitted to the

supervised release violations had he been advised. This is so because the court

advised him of the tentative sentencing decision before offering a final opportunity to

object. Moreover, there was no evidence that Mr. Lax’s admissions to the violations

were not knowing and voluntary.

      Second, the brief states that Mr. Lax has no viable argument that the sentence

was procedurally or substantively unreasonable because the district court adequately

considered the sentencing factors under 18 U.S.C. § 3553(a) and the United States

Sentencing Guidelines and because he cannot overcome the presumptive

reasonableness of the within-guidelines sentence.

      The clerk’s office sent a letter to Mr. Lax advising him of his attorney’s filing

of the Anders brief and inviting him to raise any points to show why his conviction or

sentence should be set aside. Mr. Lax has not filed any response.

                                  II. DISCUSSION

      We have conducted a full examination of the record, Anders, 386 U.S. at 744,

and agree with Mr. Lax’s counsel that there are no non-frivolous appeal issues.

Nothing in the transcript of the revocation hearing or any other part of the record

shows that there was any plea agreement associated with Mr. Lax’s admission of

having violated the four supervised release conditions. Nor was there any other basis

to determine that Mr. Lax conditioned his admissions to supervised release violations

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on receiving a specific sentence. Indeed, the violation report prepared in advance of

the revocation hearing states that Mr. Lax admitted to use of methamphetamine.

       To the extent the district court should have advised Mr. Lax that any

agreement between the parties as to the recommended sentence was not binding on

the court, Mr. Lax did not object, so he would have to show plain error on appeal:

“(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Harris, 695 F.3d 1125, 1130 (10th Cir. 2012)

(quotations omitted).

       The record does not show an error that was plain, that Mr. Lax would or could

have contested the violations if he had been advised that any stipulated sentence was

not binding, or that the absence of such advisement would seriously affect the

fairness and integrity of the proceeding.

       We further do not detect any procedural or substantive reasonableness error.

The district court adequately supported the sentence under the § 3553(a) factors, and

there is no basis for him to overcome the presumptive reasonableness of the 14 month

within-guidelines sentence. See United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006).




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                                 III. CONCLUSION

      Our independent review of the record found no non-frivolous grounds for

reversal based on the issue identified in the Anders brief, nor did it uncover any other

non-frivolous grounds. We therefore grant counsel's motion to withdraw and dismiss

this appeal.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




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