                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 26, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 15-3010
                                              (D.C. No. 6:10-CR-10144-MLB-1)
 DILLON R. MILLER,                                        (D. Kan.)

          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges. **


      In 2010, Defendant Dillon Miller pleaded guilty to carrying and using firearms

during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

The district court sentenced Defendant to 60-months’ imprisonment to be followed

by a 3-year term of supervised release. Defendant was apparently serving the latter

portion of his sentence at the Residential Re-entry Center (RRC) in Wichita, Kansas,

when he violated the terms of his supervised release. The probation office filed a


      *
         This order and judgment is not binding precedent except under the doctrines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).
petition to revoke Defendant’s supervised release, alleging Defendant had been (1)

associating with a convicted felon (a female) without permission, and (2) discharged

from RCC for making threatening statements to a staff member. At the revocation

hearing, Defendant acknowledged he had read the violation report and discussed it

with his counsel. Defendant further admitted the report was accurate and nothing

therein needed changing or correcting.

      Because his original offense was a Class A felony, Defendant once again faced

a maximum sentence of 60-months imprisonment. See 18 U.S.C. § 3583(e)(3)

(basing the maximum sentence for revocation of supervised release on the

classification of the underlying conviction). The guidelines, however, recommended

a lesser sentence of 5-11 months for his violations. The district court sentenced

Defendant to 36-months imprisonment. Because the court believed Defendant to be

“unsupervisable,” it ordered no further supervised release. 1 The district court based

its upward variance from the guideline range on the nature of Defendant’s underlying

offense, his attitude and behavior while under supervision, his criminal history and

characteristics, and the need to protect the public. Before announcing sentence, the

court noted it considered the applicable guidelines and the § 3553 factors. The court

opined that nothing in the record suggested Defendant would cease his criminality


      1
         At the revocation hearing, Defendant’s supervising probation officer
described Defendant’s performance on supervision as poor and his behavior as
uncooperative, argumentative, and intimidating.       According to the officer,
Defendant’s attitude became progressively worse over the course of his supervision.

                                          2
because he does not understand what following the rules means. The court noted its

obligation to protect the public and concluded that incarcerating Defendant was

necessary. Defendant appealed. Our jurisdiction arises under 18 U.S.C. § 3742(a).

We summarily affirm.

      We appointed the Federal Public Defender to represent Defendant on appeal.

After careful review, the assistant defender assigned to the case concluded that

Defendant’s appeal presents no factually or legally non-frivolous issues. Counsel

therefore submitted an Anders brief and an accompanying motion to withdraw. See

Anders v. California, 386 U.S. 738 (1967). Defendant was notified and filed a short

response acknowledging his “behavior was not right,” but telling us he believes his

sentence for his supervised release violations is too harsh. Having reviewed the

record and counsel’s Anders brief in light of the governing legal standards, however,

we are compelled to disagree. See United States v. Castillo-Arellano, 777 F.3d 1100,

1103–04 (10th Cir. 2015) (setting forth the standards applicable to sentence review).

Defendant’s sentence was not imposed in violation of the law, his sentence was not

procedurally infirm, and his sentence was substantively reasonable.

      Counsel points out that the only argument Defendant could make in challenge

to his sentence is that the district court erroneously considered the seriousness of the

underlying offense of conviction, namely carrying and using firearms during and in

relation to a drug trafficking crime, pursuant to § 3553(a)(2)(A). But Defendant did

not make a contemporaneous objection in the district court, so our review is for plain

                                           3
error. In United States v. Douglas, 556 F. App’x 747 (10th Cir. 2014) (unpublished),

a panel of this Court observed:

      Recent decisions issued by panels of this Court indicate that the Tenth
      Circuit has not definitively resolved the question of whether it is error
      for a district court to consider § 3553(a)(2)(A) factors when revoking
      an offender’s supervised release.[ 2] See United States v. Chatburn, 505
      F. App’x 713, 717 (10th Cir. 2012); United States v. Lockhart, 421 F.
      App’x 877, 880 n.1 (10th Cir. 2011). . . . Moreover, the Supreme Court
      has not yet spoken to the issue.

Id. at 750–51. And the circuits are divided on the question. Id. at 751. Of course,

all this means Defendant cannot show the district court clearly or obviously erred in

its sentencing approach. See Puckett v. United States, 556 U.S. 129, 135 (2009)

(explaining that plain error review requires four showings, one of which is to

establish any legal error was clear or obvious).

      Accordingly, the judgment of the district court is AFFIRMED. Defense

counsel’s motion to withdraw is GRANTED. We appreciate counsel’s forthrightness

in evaluating the merits of Defendant’s appeal.

                                         Entered for the Court



                                         Bobby R. Baldock
                                         United States Circuit Judge



      2
          Section 3553(a)(2)(A) provides that in determining the sentence to be
imposed, the district court “shall consider . . . the need for the sentence imposed . . .
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense.”

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