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

                             FOR THE TENTH CIRCUIT                           March 30, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 15-3196
v.                                                (D.C. No. 6:13-CR-10197-EFM-3)
                                                              (D. Kan.)
DAPHNE MEWHINNEY,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Defendant Daphne MeWhinney appeals from a judgment of the United States

District Court for the District of Kansas, which revoked her probation and sentenced her

to 18 months’ imprisonment. Discerning no nonfrivolous issues for appeal, defense

counsel submitted an Anders brief and a motion for leave to withdraw. See Anders v.

California, 386 U.S. 738, 744 (1967) (defense 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

      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Cir. 2005); see also 10th Cir. R. 46.4(B)(1). Defendant filed a response, but the

government chose not to respond. After conducting our own “full examination of all the

proceedings,” Anders, 386 U.S. at 744, we agree with counsel that there are no

nonfrivolous issues for appeal. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we dismiss this appeal and grant counsel’s motion to withdraw.

       Defendant pleaded guilty to one count of wire fraud. See 18 U.S.C. § 1343.

Based on an offense level of five and a criminal-history category of II, her guidelines

sentencing range was zero to six months. The court sentenced her to a three-year term of

probation and ordered her to pay a $100 special assessment and $2,104.08 in restitution.

One condition of her probation was to maintain employment unless excused by her

probation officer.

       Defendant falsified job-search logs and failed to make restitution payments; so the

court modified her conditions of release to require that she reside in a residential re-entry

program for up to 120 days. On her second day, she absconded. The probation office

recommended that her probation be revoked, and the court issued a warrant for her arrest.

After almost a month on the lam, she was arrested.

       At Defendant’s revocation hearing she admitted to violating three conditions of

her probation: absconding from the residential re-entry program, failing to maintain

employment, and failing to follow her probation officer’s instructions. The court found

that she had violated those conditions and revoked her probation. The court determined

that all three violations were Grade C violations, see USSG § 7B1.1(a)(3)(B); and with a

criminal-history category of II, her advisory guidelines range was four to ten months’

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imprisonment, see id. § 7B1.4(a). The government recommended a 10-month term of

incarceration because of her exceptionally poor compliance with the terms of her

probation. Defense counsel requested that she be placed back on probation with

additional restrictions, pointing to (1) her responsibility to care for eight children,

including one child with special needs, and her elderly grandfather; (2) her diagnosis of

anxiety and depression; and (3) her other medical conditions, including a separated

shoulder and an ulcer.

       The court sentenced her to 18 months’ imprisonment. After stating that it could

not recall another defendant who had absconded from a residential re-entry program so

quickly, it continued:

       I would have to say that [Defendant] is certainly a finalist for the least
       compliant person on supervision that I’ve seen. . . . [S]he appeared to
       sabotage her attempts to gain employment with the way she dressed and the
       way she would answer classes, that she made false reports as to her efforts to
       find employment, that she, after complaining that she couldn’t get
       employment due to transportation, was given bus passes but still would not
       actually be looking for employment, that she would go through classes
       designed to help her with employment and would either sleep through them
       or be so argumentative about them that at least on one case she was asked to
       leave the class. . . . [S]he falsely reported that she made applications which
       she, in fact, did not make.

R. at 131–32. The court observed, “There’s nothing in the report that I’ve seen that

indicates, on really any single issue, she was compliant with her conditions of

supervision.” R. at 133. It concluded that a term of supervised release would be futile

and that the 18-month sentence “satisfies the objectives of sentencing I’m required to

consider in a case such as this where I’m revoking probation. I think it’s sufficient and

certainly not greater than necessary - - frankly, it’s slightly less than I came in here

                                               3
planning to do, to be honest with you - - that are necessary to reflect her performance . . .

while on probation . . . .” R. at 135.

       Defense counsel’s Anders brief conceded the following: (1) there was no

procedural error because the court fulfilled its constitutional due-process requirements;

(2) there was no arguable error in the district court’s decision to revoke probation because

Defendant knowingly and voluntarily admitted the violations; and (3) her sentence was

both procedurally and substantively reasonable. In response to that brief, Defendant

“ask[s] for a new trial or a sentence reduction due to my health and my family.” Dkt.

1/11/16 response to Anders Brief at 4. She also contends that the judge failed to consider

her family and health needs and it was unfair that she was “punished for not having a job

considering everything.” Id.

       After conducting a full review of the record, we agree with counsel that there are

no nonfrivolous grounds for appeal. In particular, we note that the district court

considered the concerns expressed in Defendant’s brief in this court. At the revocation

hearing her counsel argued at length about her family obligations and medical conditions,

and the district court addressed those issues. We will not now on appeal reweigh those

considerations. See United States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014) (“We

must . . . defer not only to a district court’s factual findings but also to its determinations

of the weight to be afforded to such findings.” (internal quotation marks omitted)). And

the district court did not impose an 18-month sentence simply because she did not have a

job. Rather, it properly considered that she had purposefully sabotaged her ability to

obtain a job and falsified her job logs.

                                               4
                                 CONCLUSION

      We can discern no nonfrivolous ground for appealing Defendant’s sentence. We

therefore DISMISS the appeal and GRANT counsel’s motion to withdraw.




                                         Entered for the Court


                                         Harris L Hartz
                                         Circuit Judge




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