                                                                            FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      U N IT E D STA T E S C O U R T O F A PPE A L SFebruary 19, 2009
                                                                    Elisabeth A. Shumaker
                                  T E N T H C IR C U IT                 Clerk of Court
                             __________________________


 UNITED STATES OF AM ERICA ,

          Plaintiff - Appellee ,

 v.                                                         No. 08-5016
                                                            ( N.D. Okla.)
 M ICHAEL JEFFREY M ORRIS ,                      (D.Ct. No. 4:02-CR-00072-JHP-1 )

          Defendant - Appellant .
                            ____________________________

                              O R D E R A N D JU D G M E N T *


Before O ’B R IE N , E B E L , and G O R SU C H , Circuit Judges.




      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. The case is therefore

ordered submitted without oral argument.

      M ichael Jeffrey M orris appeals from the district court’s imposition of a

prison sentence for violating the terms of his supervised release. His counsel



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
filed an Anders brief and moved to withdraw. Anders v. California, 386 U.S. 738

(1967). In response M orris filed his own statement of alleged issues. The

government has not filed a brief. W e DISM ISS M orris’ appeal and GRANT his

attorney’s motion to withdraw.

                      I. PR O C E D U R A L B A C K G R O U N D

A. Original Convictions

      In October 2002, pursuant to a plea agreement, M orris pled guilty to bank

fraud (Count One) and wire fraud (Count Two). In spite of his agreement not to,

M orris appealed from the resulting sentence. W e enforced his plea agreement and

dismissed his appeal. United States v. M orris, 92 Fed. Appx. 706 (10th Cir.

2004) (unpublished). He received concurrent sentences of 63 months

incarceration for bank fraud followed by five years of supervised release and 60

months for wire fraud followed by three years of supervised release, the sentences

to run concurrently. Restitution was set at $1,681,199.19, “an amount specifically

recognized in the plea agreement as permissible.” Id. at 707.

      M orris’ supervised release commenced on December 22, 2006. The

statutorily required terms of supervised release prohibited M orris from

committing any crime and required him to submit truthful monthly reports to his

supervised release officer. See 18 U.S.C. § 3583(d). In addition, the court

imposed special conditions prohibiting M orris from engaging in certain



                                         -2-
employment and financial activities without the prior approval of his probation

officer. M orris was to secure advance approval for employment involving the

processing of credit applications or the solicitation of investors or lenders, or

employment in which he would have access to “money, bank or investment

accounts, real or personal property or inventory of any person or business entity.”

(R. Appx. Vol. 2.) Prior approval was also necessary for M orris to open or have

signature authority over any checking, savings, or credit accounts. 1

       M orris’ supervised release terms required him to submit a written monthly

report within the first five days of the month following the reportable activities.

Each report form contained the following acknowledgment immediately below the

signature line:

       I swear or affirm this report is complete and correct, understanding
       that any false statements may lead to revocation or prosecution
       resulting in additional imprisonment for a term of up to 5 years, a
       fine of up to $250,000 or both.


(R. Appx. Vol. 2 at 10, 12.) In his September 2007 report, M orris falsely


      1
          Morris has several previous convictions for financial crimes. See United States
v. Morris, 13 F.3d 407 *1 (10th Cir. 1993) (unpublished) (Morris pled “to the crime of
fraudulently using a Social Security number, 42 U.S.C. § 408(a)(7)(B), and sentenced to
confinement for thirty months, supervised release for three years, and ordered to pay
restitution of $6,741 . . . . At the time of sentencing, Mr. Morris had already accumulated
two prior convictions he claims are related for the purpose of sentencing. The first
offense, committed in the State of Georgia, was a bank fraud in which he used a false
name to open a line of credit. The second offense, use of a false Social Security number
to open a bank account in Oklahoma, was committed later.”).


                                            -3-
stated he owned or drove two cars when he had, in fact, purchased two new

(additional) cars on credit that month. He did not report these expenditures

or the new lines of credit. In his October 2007 report, M orris neglected to

inform the government he had applied for and received a certificate for a

limited liability company in his name and had received credit lines for his

nascent business. On both months’ forms, M orris handwrote “to the best of

my knowledge” after the phrase “I swear or affirm this report is complete

and correct.” (Id.)

      Based on M orris’ actions, false statements and material omissions,

the government petitioned the court for an order requiring him to show

cause why his supervised release should not be revoked or modified. It

alleged M orris had not only violated the special terms of his supervised

release, but also the general terms through his felony submission of false

statements to a government agency. See 18 U.S.C. § 1001.

B. Revocation Hearing

      1. Violation of Supervised Release

      A revocation hearing was held on January 20, 2008. M orris appeared

with retained counsel. After M orris’ counsel stated M orris was willing “to

stipulate to each and every allegation in the order on supervised release,”

the district judge spoke directly with M orris. (R. Supp. Appx. at 3.) The



                                         -4-
judge asked if he understood he had the right to a hearing in which he could

question adverse witnesses and present evidence in his defense. M orris

said he understood. The judge also asked M orris if he understood the

provisions of 18 U.S.C. § 3583(e)(3) authorized imprisonment for

violations of his supervised release for up to 36 months as to Count 1 of his

original (bank fraud) offense and up to 24 months for Count Two of the

original (wire fraud) offense.2 M orris affirmed he understood. To be sure,

the court asked M orris if he understood he “could be imprisoned up to five

years.” (Id. at 6.) M orris said yes and, through counsel, waived his right to

an evidentiary hearing on the charges. See United States v. Fay, 547 F.3d

1231, 1234 (10th Cir. 2008) (“A full revocation hearing is not necessary

where the defendant admits he has violated the terms of his supervised

release.”). The court found M orris had violated the terms of his supervised

release by submitting reports containing falsehoods and omissions as well

as violating his special financial conditions on numerous occasions.

      2. Evidence in M itigation

      M orris, the only witness, testified in mitigation. He conceded he

bought two new cars, but stated one was bought for his estranged wife and

      2
         The presentence report mistakenly categorized Morris’ wire fraud conviction as
a Class C felony. See 18 U.S.C. § 3559; see also infra note 4. There was no objection to
the presentence report.



                                           -5-
the other for his son who was “just getting ready to turn 16.” 3 (Id. at 10.)

M orris stated “there’s no real excuse” but immediately added, “I was acting

on emotions and I was – embarrassingly, I guess I was just – I was trying to

win my wife back and my son.” (Id. at 11.) M orris justified establishing

his limited liability company with two reasons. First, he was hoping to

become a “solutions provider” for his current employer and he needed the

company to “meet certain qualifications.” (Id. at 12.) In addition, he

wanted to help his ailing mother who was having difficulty paying her

mortgage. According to M orris “another attorney” advised him it would

help him negotiate with his mother’s mortgagor to “purchase the mortgage

for a lesser amount.” (Id.) M orris admitted he opened two savings

accounts and one checking account at banks in Georgia and California, but

stated he opened one savings account merely to get a discount on his

insurance and he had not used the checking account. W hile he did open

between six and eight credit card accounts, at least one of which was in the

new company’s name, he explained one reason for his actions was “to try to

repair [his wife’s] credit.” (Id. at 13.) W hen asked on cross-examination

whether he had made any false statements when applying for credit or bank

accounts, M orris answered, “I don’t recall.” (Id. at 31-32.)
      3
         On cross-examination, Morris admitted he bought the truck eight months before
his son’s sixteenth birthday.


                                          -6-
       M orris discussed his mental illness, bipolar disorder, and claimed he

was now taking his prescribed medications. He admitted, however, when

he was released from prison he was given a “60 day supply of medication”

but had not taken it. (Id. at 34.) His reason was “[he] didn’t think [he]

needed it” and “it makes [him] feel like [he’s] lesser of a person.” (Id. at

17.)

       M orris acknowledged his earlier convictions for fraudulent

transactions. He conceded his fraud convictions in this case, wherein he

swindled two banks out of over $1 million, were committed while he was

on supervised release. This was his seventh supervised release revocation.

       3. Sentence of Imprisonment

       A term of imprisonment upon revocation of supervised release is

based on the crime for which the defendant was originally convicted. 4 See

18 U.S.C. § 3583(e)(3). The classification of the offense caps the term of

imprisonment:

       The court may, after considering the factors set forth in section
       3553(a)

                                       ....


       4
         The maximum sentence for bank fraud is thirty years. See, 18 U.S.C. § 1344(1).
The maximum sentence for wire fraud is also thirty years. See 18 U.S.C. § 1343. Each
crime is a class B Felony. See 18 U.S.C. § 3559 (“[I]f the maximum term of
imprisonment authorized is . . . twenty-five years or more, [it is] a Class B felony.”).


                                          -7-
       (3) revoke a term of supervised release, and require the defendant to
       serve in prison all or part of the term of supervised release
       authorized by statute for the offense that resulted in such term of
       supervised release without credit for time previously served on
       postrelease supervision, if the court . . . finds by a preponderance of
       the evidence that the defendant violated a condition of supervised
       release, except that a defendant whose term is revoked under this
       paragraph may not be required to serve on any such revocation more
       than 5 years in prison if the offense that resulted in the term of
       supervised release is a class A felony, more than 3 years in prison if
       such offense is a class B felony, more than 2 years in prison if such
       offense is a class C or D felony, or more than one year in any other
       case . . . .

Id. The court found M orris had violated the terms of supervised release as to both

his Class B felony convictions.

       The policy statements contained in Chapter 7 of the United States

Sentencing Guidelines make recommendations as to punishment for violations of

conditional release. Those policy statements are based on the seriousness of the

violations of supervised release conditions rather than the seriousness of the

original conviction, which dictates the maximum punishment. Under the 2007

guidelines used in this case, M orris’ violations consisted of both Grade B and

Grade C violations.5 See USSG §7B1.1(a). “W here there is more than one


      5
         A Grade B violation is “conduct constituting [a] federal, state, or local offense
punishable by a term of imprisonment for more than one year” and a Grade C violation
includes conduct constituting “a violation of any other condition of supervision.” See
USSG §7B1.1 (a)(2)&(3)(B). The “Grades” used by the guidelines should not be
confused with the “Class” of felony set by 18 U.S.C. § 3559, which relates to the original
offence.



                                           -8-
violation of the conditions of supervision, the grade of the violation is determined

by the violation having the most serious grade.” USSG §7B1.1(b). As reported

in the presentence report, the guideline policy statements recommended range of

21-27 months imprisonment for the violations of M orris’ bank fraud supervised

release and 21-24 months for the violations of his supervised release for wire

fraud. 6 See USSG §7B1.1- 1.5. See 18 U.S.C. § 3583(e)(3). M orris does not

dispute the guideline calculations.

      The court revoked M orris’ supervised release and sentenced him to the

maximum 36-month term of imprisonment for violating the supervised release

terms on his bank fraud conviction and a 24-month term of imprisonment for the

violations related to his wire fraud conviction; the sentences run consecutively.

Assessing condign punishment for M orris’ most recent transgressions, the court

stated:

      The Court has considered the violation policy statements in Chapter 7
      of the United States Sentencing Guideline manual now in effect and
      views these policies as advisory in nature for the purpose of these
      proceedings. The Court has also considered the factors set out in 18
      U.S.C. Section 3553(a) to include the nature and circumstances of
      the violation conduct and the history and characteristics of the
      offender. M ichael Jeffrey M orris has shown little regard for the
      rules and conditions of supervised release as indicated by these
      violations. The Court notes that this is M orris’ seventh revocation
      proceeding over three separate periods of supervised release. These
      6
        Morris’ Criminal History Category at the time he was sentenced on the original
charges was VI. This is the Criminal History Category applicable for determining the
imprisonment range upon revocation of supervised release. See USSG §7B1.4(a).


                                          -9-
      current violations represent the latest in a long series of similar
      violations that indicate a pattern of refusing to submit to the rules
      and conditions of supervised release. The Court further takes notice
      of the serious nature of the violations, including the submissions of
      materially false monthly supervision reports which constitute
      violations of 18 U.S.C. Section 1001. Based on the need to protect
      the public, provide incremental increases in the punishment, provide
      some deterrence to the defendant, and the nature, history, and pattern
      of violations, the Court believes that a lengthy term of imprisonment
      is not only justified, but necessary.

(Supp. Appx. at 46-47.)

      After his revocation sentencing, M orris fired his retained counsel and

requested new counsel be appointed to take an appeal on his behalf, but filed a

deficient request to proceed on appeal in forma pauperis (IFP) in the district

court. The district court denied his request as premature and required his attorney

to file and perfect an appeal as required by 10th Cir. R. 46.3(A). The judge

explained that M orris could file an IFP petition with this Court. 7

C. Appeal

      As required, M orris’ attorney filed and perfected the appeal 8 and also filed

an Anders brief asserting no non-frivolous issues were present in the case and

seeking leave to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).


      7
          In denying the IFP motion the district judge correctly said: “The Tenth Circuit
prefers to handle issues relating to appointment of counsel for purposes of appeal.” Order
Denying Appointment of Counsel, Sept. 9, 2008 (citing 10th Cir. R. Addendum I, Section
I).

      8
          The $455.00 docketing fee was paid on July 17, 2008.


                                          -10-
M orris filed his own brief in the form of a letter detailing errors allegedly

committed by the district court and claiming his retained counsel was ineffective

in the district court and again on appeal.

      On November 4, 2008, M orris requested this Court appoint counsel. W e

denied his request on November 7, 2008. W e ordered M orris, inter alia, to “cure

the deficiencies in the motion to proceed in forma pauperis that he previously

filed in the district court and obtain a finding from the district court that he is

eligible [for appointment of counsel].” (emphasis in original). On January 16,

2009, M orris filed a supplemental “M otion to Strike Anders Brief” claiming his

counsel does not represent him and essentially again requesting appointed counsel

for this appeal. M orris has neither explained why he has not employed new

counsel nor filed a proper IFP request as we ordered in November. See Fed. R.

App. P. Rule 24. His supplemental motion is denied.

                                  II. D ISC U SSIO N

A. Recusal

      M orris asserts he “has made repeated filings . . . to the court that [the

judge] and all members of the U.S. Attorney’s Office for the Northern District of

Oklahoma should have been recused from the case.” (Appellant’s Anders

Statement at 3.) M orris alleges Judge Payne, the judge at his revocation hearing,

was recused in the civil matter associated with M orris’ original criminal



                                          -11-
convictions (Key Bank N.A. v. M id-Continent Trans., No. 00-CV206 (N.D. Okla.

2000)) 9 and, therefore, should have recused himself in the criminal case as well.

Similarly, he claims because the United States District Attorney for the Northern

District of Oklahoma, David E. O’M eilia, represented Key Bank in that civil

matter (while he was in private practice), this entire United States Attorney’s

Office should have been disqualified in this criminal proceeding. Assuming these

claims are not foreclosed by rulings in M orris’ previous cases, they are without

merit.

         The complaint in the civil case was filed on M arch 9, 2000. O’M eilia

represented the Key Bank at that time. On October 5, 2001, O’M eilia moved to

withdraw as counsel because he was leaving private practice to serve as the

United States Attorney for the Northern District of Oklahoma. His motion was

granted. On November 7, 2001, the case was reassigned to Judge Payne. On

November 19, 2001, the case was again randomly reassigned because Judge Payne

recused due to “[l]aw firm conflict.” (Key Bank, 00-CV-206 Dock. # 1564.)

         Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.”

“[D]isqualification is appropriate only where a reasonable person, were he to

know all the circumstances, would harbor doubts about the judge's impartiality.”
         9
       “We may take judicial notice of these documents from the public record.” State
Farm Mut. Auto. Ins. Co. v. Boellstorf, 540 F.3d 1223, 1226 n.7 (10th Cir. 2008).


                                         -12-
United States v. M endoza, 468 F.3d 1256, 1262 (10th Cir. 2006) (quotations

omitted). W e review the district court’s decision for abuse of discretion. Id.

M orris does not explain why the judge’s recusal in the civil case requires the

same result in his criminal case. There were no less than six law firms involved

in the civil case and several individual attorneys. M orris does not attempt to

demonstrate why a conflict with one of these firms would affect Judge Payne’s

impartiality in M orris’ revocation of supervised release. After an independent

and thorough review of this record, we harbor no doubts about the judge’s

impartiality.

      “The disqualification of Government counsel is a drastic measure and a

court should hesitate to impose it except where necessary.” United States v.

Bolden, 353 F.3d 870, 878 (10th Cir. 2003) (quotations omitted). “Courts have

allowed disqualification of government counsel in limited circumstances” but a

moving party must show a real conflict such as the prosecutor’s prior

representation of an adverse party. Id. at 878-89 (listing cases). In addition,

“disqualifying government attorneys implicates separation of powers issues.” Id.

at 879. Therefore, “the generally accepted remedy is to disqualify a specific

Assistant United States Attorney, not all the attorneys in the office.” Id.

O’M eilia did not prosecute M orris’ original criminal case or this revocation

proceeding. In this matter, the United States was represented by two different



                                         -13-
individuals from that office. M orris does not allege these attorneys had even a

remote connection with his civil case or with the bank. The judge did not abuse

his discretion in denying M orris’ motion for recusal of the entire Northern

District of Oklahoma’s United States Attorney’s office. 1 0

      There is no support for M orris’ argument. It is frivolous.

B. Sentencing

      M orris agrees he violated his supervised release terms and should be

punished but claims his sentence is unreasonable because the district court (1)

considered a technical violation as the equivalent of new criminal activity, (2)

failed to consider (a) his positive activities while on supervised release, (b) the

age of his former convictions, and (c) his mental health and imposed consecutive,

rather than concurrent sentences. None of his claims have merit.

      Reasonableness review is a two-step process comprising a procedural
      and a substantive component. Procedural review asks whether the
      sentencing court committed any error in calculating or explaining the
      sentence. Substantive review involves 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. Alapizco-Valenzuela, 546 F.3d 1208, 1214-15 (10th Cir. 2008)


      10
          Morris also claims the prosecutor engaged in selective prosecution. “[A] person
making a selective-prosecution claim must establish two elements: [1] the federal
prosecutorial policy had a discriminatory effect and [2] it was motivated by a
discriminatory purpose.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263-64
(10th Cir. 2006) (quotations omitted). Morris does not allege either of these elements.



                                          -14-
(quotations and citations omitted). M orris claims several procedural errors and

challenges the substantive reasonableness of his revocation sentence.

       1. Procedural Review

       M orris made no objection to the presentence report nor did he present his

arguments to the district court. Thus, he must show plain error to prevail on

appeal. See id. at 1222 (we review only for plain error when the defendant failed

to make the procedural challenge below). “Plain error occurs when there is (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.” Id.

(quotations and citations omitted). There was no error.

              a. Technical Violation

       M orris claims he committed only a technical violation and, therefore, could

not be sentenced for new criminal activity for false reporting. He argues his

monthly reports did not contain false statements, merely omissions which he

rectified by writing “to the best of my knowledge” in the signature section on his

report – just above the advisement that false reports are a criminal violation. 1 1

(Appellant’s Anders statement at 2.)
      11
          Morris’ argument is telling. It illustrates his proclivity to posit specious
distinction in order to justify falsehoods. Apparently he thinks this transparent artifice
will excuse or minimize his lies. However, as § 1001(a) expressly recognizes, “a trick”
will not avoid guilt. Contrary to his expectations, his tactics provide insight into “the
history and characteristics of the defendant.” See 18 U.S.C. 3553(a)(1).



                                            -15-
      The several allegations to which M orris admitted included a violation of 18

U.S.C. § 1001(a). This section provides up to five years imprisonment if a person

within the jurisdiction of the judicial branch “knowingly and willfully[:] (1)

falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or

representation; or (3) makes or uses any false writing or document knowing the

same to contain any materially false, fictitious, or fraudulent statement or entry . .

. .” Id. A court may revoke a defendant's supervised release if it finds by a

preponderance of the evidence that the defendant violated a condition of

supervised release. See 18 U.S.C. § 3583(e)(3).

      M orris has extensive experience with the terms of his supervised release. 1 2

He was repeatedly put on notice that his reports must be correct and complete.

His supervised release has been revoked for the same kinds of transgressions in

the past. See United States v. M orris, 42 Fed. Appx. 285 *1 (10th Cir. 2002)

(unpublished). Creating a limited liability company and starting numerous lines

of credit were not “technical” violations unintentionally omitted from his report.


      12
          Morris was acutely aware of the terms of his supervised release as these terms
had been in effect and increasingly expanded and particularized when he violated the
terms and appealed from further restrictions. See United States v. Morris, 173 F.3d 865
*1 (10th Cir. 1999) (unpublished) (Morris appealed from the district court's imposition of
a special condition of supervised release prohibiting him from acting as a mortgage
broker and limiting his involvement in the financing of automobile sales.)



                                           -16-
The report form carried a monthly reminder that submitting a false statement was

a felony. His convenient and contrived qualification — “to the best of my

knowledge” — is embarrassingly transparent. (R. Appx. Vol. 2 at 10, 12.) It

neither excuses nor mitigates his flagrantly false report. The argument is

frivolous.

              b. Consideration of § 3553(a) Factors

       M orris further contends the district court failed to consider his productive

activities during supervised release, the age of his convictions and his mental

health.1 3 In Gall v. United States, the Supreme Court clarified our procedural

review includes allegations the court “fail[ed] to consider the § 3553(a) factors.”

— U.S. — , 128 S.Ct. 586, 597 (2007). Contrary to M orris’ assertions, however,

the court expressly stated it had considered the§ 3553(a) factors and it clearly

explained the reasons for a maximum sentence. The judge was fully aware of the

dates of M orris’ convictions, his past revocations, and his deliberate failure to

take his prescribed and provided mental health medication. The judge was also

treated to first-hand evidence of M orris’ persistent antisocial tendencies. His

conniving, manipulative and narcissistic behaviors continue unabated, an obvious

risk to public safety. The record contains no evidence of community service
       13
           At an earlier revocation hearing, a “a psychologist opined . . . that Morris may
suffer from a mental condition which causes compulsive criminal behavior in the area of
illegally using others social security numbers and credit histories.” Morris, 173 F.3d at
*2.


                                            -17-
activities while on supervised release.

      “W e do not . . . require that the district court recite any magic words to

show us that it fulfilled its responsibility to be mindful of the factors [in §

3553(a).]” United States v. Chavez-Calderon, 494 F.3d 1266, 1268 (10th Cir.

2007) (quotations omitted), cert. denied, 129 S.Ct. 185 (2008). As quoted in the

procedural background above, the court adequately explained its determination to

sentence M orris as it did, including his pattern of disregarding the conditions

placed on his numerous supervised releases. W hile the judge was brief, as

befitted the circumstances, there is no evidence he failed to properly weigh the

factors in § 3553(a) or appropriately state the reasons for the sentence imposed.

In any event, the reasons for the maximum sentence are self evident from a record

review. M orris’ argument is frivolous.

             c. Consecutive Sentences

      M orris claims the court could not impose two consecutive sentences

because he was originally sentenced to two concurrent terms of supervised

release. If the sentences were to run concurrently, the maximum statutory

sentence would be 36 months. M orris maintains a consecutive sentence at this

point effectively produces a retroactive modification of his original sentence in

violation of the legislative intent and unfairly gives him a five year term of

imprisonment, nearly equal to his original sentence.



                                          -18-
      W hile our precedent has not specifically addressed M orris’ contentions, we

have consistently assumed his position is untenable. In United States v. Rose,

Rose pled guilty in 1991 to a single count of interstate travel in aid of

racketeering. The Oklahoma federal district court sentenced him to a 60-month

term of incarceration to be followed by three years of supervised release. 185

F.3d 1108, 1110 (10th Cir. 1999). The next year, Rose pled guilty in a North

Carolina federal district court to a single count of conspiracy to possess with the

intent to distribute marijuana. He was sentenced to a 33-month term of

incarceration and a five year term of supervised release to be served concurrently

with the sentence imposed in the Oklahoma case. Id. Rose violated the terms of

his supervised release. “[T]he district court revoked both terms of supervised

release, sentenced Rose to a term of imprisonment of twenty-four months in each

case, and ordered that the terms of imprisonment be served consecutively.” Id.

      Rose appealed, claiming “the district court failed to comply with 18 U.S.C.

§ 3584 1 4 in ordering his terms of incarceration to run consecutively” because it

      14
        18 U.S.C. § 3584 states in relevant part:
      Imposition of concurrent or consecutive terms.--If multiple terms of
      imprisonment are imposed on a defendant at the same time, or if a term of
      imprisonment is imposed on a defendant who is already subject to an
      undischarged term of imprisonment, the terms may run concurrently or
      consecutively, except that the terms may not run consecutively for an
      attempt and for another offense that was the sole objective of the attempt.
      Multiple terms of imprisonment imposed at the same time run concurrently
      unless the court orders or the statute mandates that the terms are to run
      consecutively . . . .


                                         -19-
did not adequately explain the § 3553(a) factors on which it based Rose’s

sentence. As a prelude to our discussion of the § 3553 issue, we stated, “Section

3584 grants district courts discretion in choosing between consecutive and

concurrent terms of imprisonment” and proceeded to affirm Rose’s sentence. Id.;

see also United States v. Cordova, 461 F.3d 1184, 1185-86 (10th Cir. 2006)

(affirming district court’s sentence on revocation of supervised release to the

statutory maximums – 24 months as to the first conviction and 12 months as to the

second conviction ordered to run consecutively); United States v. Davis, 218 Fed.

Appx. 786, 788 n.1 (10th Cir. 2007) (unpublished) (“M ultiple custody terms

imposed after revocation of supervised release may run concurrently or

consecutively.”); United States v. M eadows, 214 Fed. Appx. 872, 873 n.1 (10th

Cir. 2007) (unpublished) (defendant convicted of two counts for a class E felony

could be sentenced to two consecutive terms of one year for violation of a

condition of supervised release). 1 5

      W hile our pronouncements admittedly may be dicta, at least seven other

circuits confronting the exact issue have held the district court may impose

consecutive sentences on revocation of concurrent sentences of supervised

release. See United States v. Dees, 467 F.3d 847, 851-52 (3d Cir. 2006); United


      15
         Unpublished opinions are not binding precedent. 10th Cir. R. 32.1(A). We
mention these as we would an opinion from another circuit, persuasive because of their
reasoned analysis.


                                          -20-
States v. Deutsch, 403 F.3d 915, 917-18 (7th Cir. 2005); United States v.

Gonzalez, 250 F.3d 923, 926-29 (5th Cir. 2001); United States v. Jackson, 176

F.3d 1175, 1176-79 (9th Cir. 1999); United States v. Johnson, 138 F.3d 115, 118-

19 (4th Cir. 1998); United States v. Quinones, 136 F.3d 1293, 1294-95 (11th Cir.

1998); United States v. Cotroneo, 89 F.3d 510, 512-13 (8th Cir. 1996). M orris

has provided no contrary authority and we find none.

      In United States v. Dees, the Third Circuit considered a case nearly

identical to M orris’. 467 F.3d 847 (3d Cir. 2006). There, the defendant was

sentenced for three crimes simultaneously – 51 months in prison and 36 months of

supervised release for each conviction, with the sentences to run concurrently. Id.

at 850. At his hearing for violation of the terms of his supervised release, the

district court found Dees committed both technical and non-technical Grade B

violations. Id. After briefing by the parties on the issue of whether the district

court had statutory discretion to impose consecutive sentences for violations of

supervised release, even though Dees’ initial punishments for the underlying

crimes ran concurrently, the district court concluded it did. Accordingly, Dees

was sentenced to three consecutive 24 month prison terms. Id.

      On appeal, the Third Circuit affirmed the sentence, explaining:

      18 U.S.C. § 3584(a) controls and permits a district court to impose
      consecutive terms of imprisonment upon revocation of supervised
      release-even when the sentences for the underlying crimes ran



                                         -21-
      concurrently. No fewer than six other circuits have agreed with the
      proposition that § 3584(a) applies to not only the imposition of one's
      initial sentence but also to a sentence imposed upon revocation of
      supervised release. Nothing in § 3584(a) states or implies that the
      statute does not extend to revocation proceedings. A district court
      has full authority under § 3584(a) to sentence a defendant
      consecutively for violations of supervised release.


Id. at 851-52 (citations omitted). “[E]very court of appeals to address the

issue has concluded that [§ 3584(a)] applies not just to initial sentencing,

but also extends to revocation proceedings. Id. at 852. “Because neither

§ 3583(e) nor § 3624(e) limit § 3584(a), the District Court had full

discretion to sentence Dees according to this latter statute.” Id. W e have

repeatedly, but implicitly, rejected M orris’ argument while numerous other

circuits have expressly rejected it. M orris provides no authority supporting

his position. This argument is frivolous.

      2. Substantive Review

      Even before the Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005), the imposition and revocation of supervised release

under the guidelines’ policy statements “has always been left to the

discretion of the court.” Cordova, 461 F.3d at 1188. “A sentence in excess

of the Chapter 7 range is not a ‘departure’ from a binding guideline.”

United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996). “[O]nly the




                                         -22-
statutory maximum imposed by Congress binds a sentencing court as to the

length of a sentence imposed upon a violation of supervised release.” Id.

      The court’s decision to impose a higher sentence than that recommended by

the guidelines does not necessarily make it “unfair.” Our review is not for what

the defendant might consider fair, but for reasonable decision making. See

Cordova, 461 F.3d at 1188 (“[I]t is now axiomatic that a sentence in excess of

that recommended by the Chapter 7 policy statements will be upheld if it can be

determined from the record to have been reasoned and reasonable.”) (quotations

omitted).

      Post-Gall, we consider in all cases whether the length of the chosen

sentence is substantively reasonable under an abuse of discretion standard. Gall,

128 S.Ct. at 597. W hen the sentence imposed is higher or lower than what the

guidelines recommend, our “analysis hinges on the method by which the district

court selects the particular sentence.” Alapizco-Valenzuela, 546 F.3d at 1215.

M orris argues the court’s sentence unfairly imposed a sentence higher than

recommended by the guidelines on Count One and, because each count is to run

consecutively, his sentence is nearly the same as his sentence on his original

conviction.

      The judge appropriately considered the guideline range and the § 3553(a)




                                        -23-
factors. It noted M orris’ pattern of violations 1 6 and the serious nature of those

violations. The hearing transcript clearly supports his decision.

      Facing revocation for the seventh time, M orris continued his past practice
      16
         We reviewed Morris’ pattern of violations through 2002 in United States v.
Morris, 42 Fed. Appx. 285 *1-2 (10th Cir. 2002) (unpublished):

      On January 4, 1993, [Morris] was sentenced to thirty months in prison
      followed by three years supervised release. Morris was initially released
      from prison in March 1995, and has since had a long and persistent history
      of violating the terms and conditions of his supervised release.

      Morris’ supervised release was first revoked in August 1997, whereupon he
      was sentenced to six months in prison followed by a new thirty month term
      of supervised release (“Aug. 1997 Judgment”). Morris was released from
      prison in March 1998, but his supervised release was revoked again in
      August 1998. This time he was sentenced to six months in prison followed
      by a new eighteen month term of supervised release (“Aug. 1998
      Judgment”). Morris served approximately one month in prison before he
      was released on bond pending an appeal of the Aug. 1998 Judgment.
      Although we affirmed the Aug. 1998 Judgment in March 1999, see United
      States v. Morris, No. 97-5188, 1999 WL 140137 (10th Cir. Mar. 18, 1999),
      the district court thereafter vacated the judgment, at Morris’ request,
      purporting to reinstate the Aug. 1997 Judgment. As a result, Morris never
      completed the six month prison term and remained on release. [The
      conditions of Morris’ supervised release were modified twice before this,
      on August 3, 1995, and November 25, 1996, respectively, based on two
      separate findings that Morris violated the release conditions.]

      In December 1999, the district court revoked Morris’ supervised release yet
      again, based on a state conviction for misdemeanor assault and battery . . . .

      In November 2000, Morris’ supervised release was revoked for a fourth
      and, to this point, final time. In response to the government's petition for
      revocation, Morris filed a stipulation admitting that from March 2000 until
      October 2000 “he worked for the family business,” and that he “failed to
      advise his probation officer of the fact that he was so employed,” in
      violation of the December 1999 employment restrictions.


                                           -24-
of admitting wrongdoing only in the face of compelling evidence precluding any

alternative. And then he rationalized and minimized his transgressions. His plea

for leniency was, at bottom, merely a promise that this time he would do

everything asked of him. A hollow and brittle promise in light of years of failing

to do anything he found to be inconvenient. This case calls to mind the old adage

– fool me once shame on you, fool me twice shame on me. The judge, nobody’s

fool, considered all the evidence. His conclusion that “a lengthy term of

imprisonment is not only justified, but necessary” is unquestionably reasonable.

(R. Supp. Appx. at 46-47.) M orris’ contrary arguments are frivolous.

C. Ineffective Assistance of Counsel

       M orris argues his counsel was ineffective for failing to present mitigating

evidence at the hearing and for failing to file a substantive brief on the issues he

has raised. W e very rarely review claims for ineffective assistance of counsel on

direct appeal. See, e.g., United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc) (“Ineffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal. Such claims brought on direct appeal

are presumptively dismissible, and virtually all will be dismissed.”). If M orris

wishes to do so, he may pursue such claims in collateral proceedings. 1 7
       17
            We note, however, if an omitted issue is without merit, then counsel’s failure to
raise it is not prejudicial, and thus is not ineffective assistance.” United States v. Orange,
447 F.3d 792, 797 (10th Cir. 2006). We have addressed and rejected each argument
Morris claims his attorney failed to pursue.


                                             -25-
       After thorough review of the record we agree with M orris’ counsel; there

 are no meritorious issues. W e have carefully considered the potential issues

 raised by M orris and concluded each was frivolous. See Fogle v. Pierson, 435

 F.3d 1252, 1259 (10th Cir. 2006) (A claim is frivolous only “if it lacks an

 arguable basis either in law or in fact.”) Since no non-frivolous issues have been




advanced for our consideration we D ISM ISS this appeal. M orris’ supplemental

“M otion to Strike Anders Brief” is D EN IE D . Counsel is permitted to withdraw.




                                      E ntered by the C ourt:

                                      T errence L . O ’B rien
                                      United States Circuit Judge




                                     -26-
