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

                            FOR THE TENTH CIRCUIT                         March 23, 2020
                        _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 19-1234
                                                 (D.C. No. 1:19-CR-00109-PAB-1)
 DAVID JOEL BARELA,                                          (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      David Barela appeals following the revocation of his supervised release. His

counsel moves for leave to withdraw in a brief filed pursuant to Anders v. California,

386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the

appeal and grant counsel’s motion to withdraw.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                           I

       In 2006, Barela was convicted of conspiracy to possess with intent to distribute

or dispense methamphetamine under 21 U.S.C. § 846, possession with intent to

distribute or dispense methamphetamine under 21 U.S.C. § 841(a)(1), and being a

felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He was sentenced to

150 months’ imprisonment and eight years of supervised release. His conviction and

sentence were affirmed by the Fifth Circuit Court of Appeals. As part of the

conditions of supervision, Barela was ordered not to possess or use a controlled

substance except as prescribed by a physician and to participate in a drug treatment

and testing program under the direction of the U.S. Probation Office. In July 2015,

his sentence was reduced to 120 months’ imprisonment and eight years of supervised

release.

       After completing his prison term, Barela violated the conditions of his

supervised release by using and possessing a controlled substance in 2017. For these

violations, Barela’s supervised release was revoked and he was sentenced to eighteen

months’ imprisonment and four years of supervised release. His conditions of

supervised release again required that he not possess or unlawfully use a controlled

substance, that he participate in a program of testing and treatment for drug abuse,

and that he follow the rules and regulations of the program until discharged.

       After serving his sentence, Barela violated his terms of supervision in January

2019 yet again by using and possessing a controlled substance and failing to comply



                                           2
with the rules of the residential reentry center. At his revocation hearing, 1 the district

court found that Barela had violated his conditions of supervision and sentenced him

to nine months’ imprisonment and four years of supervised release. This sentence

was below the Guidelines sentencing range of twelve to eighteen months. Barela

timely appealed.

                                            II

         If an attorney concludes after conscientiously examining a case that any appeal

would be frivolous, he may so advise the court and request permission to withdraw.

Anders, 386 U.S. at 744. In conjunction with such a request, counsel must submit a

brief highlighting any potentially appealable issues and provide a copy to the

defendant. Id. The defendant may then submit a pro se brief. Id. If the court

determines that the appeal is frivolous upon careful examination of the record, it may

grant the request to withdraw and dismiss the appeal. Id. In this case, defense

counsel provided a copy of the Anders brief to Barela, but a pro se brief was not

filed.

         Counsel’s Anders brief considers the factual basis for the revocation and the

reasonableness of Barela’s sentence. We review a revocation of supervised release

for an abuse of discretion. United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir.

2013). We review findings of fact for clear error and legal questions de novo. Id.

Because counsel does not distinguish between procedural and substantive


         1
       Jurisdiction over Barela’s release was transferred to the District of Colorado
in August 2018.
                                             3
reasonableness, we analyze both. “We review sentences under an abuse of discretion

standard for procedural and substantive reasonableness.” United States v.

Washington, 634 F.3d 1180, 1184 (10th Cir. 2011). “Procedural review asks whether

the sentencing court committed any error in calculating or explaining the sentence.”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008).

“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).” Id. at 1215 (quotation omitted). A below-Guidelines sentence is entitled

to a “rebuttable presumption of reasonableness.” United States v. Balbin-Mesa, 643

F.3d 783, 788 (10th Cir. 2011).

      Revocation of supervised release has always been left to the discretion of the

trial court. See United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). The

government’s burden of proof in a revocation case under 18 U.S.C. § 3583(e)(3) is a

preponderance of the evidence. See Johnson v. United States, 529 U.S. 694, 700

(2000). As an initial matter, we agree with counsel that because Barela’s sentence

falls within the range authorized by the original statute of conviction, it does not

violate the restrictions recognized in United States v. Haymond, 139 S. Ct. 2369

(2019) (holding when the statute of revocation of supervised release mandates

harsher punishment than the statute of conviction, findings must be made by a jury

beyond a reasonable doubt).

      With respect to the district court’s factual findings, Barela did not contest his

parole officer’s testimony at the revocation hearing that as alleged in counts one,

                                            4
four, and five, Barela admitted to using methamphetamine, 2 marijuana, and synthetic

marijuana. Nor did Barela challenge the accuracy of the drug testing used to support

the methamphetamine use charge in count three. He also did not contest that he

violated the rules of his residential reentry center by bringing contraband into that

facility, as alleged in count six. We can discern no clear error in the district court’s

factual determinations on Barela’s violations.

      We agree with counsel that the district court correctly determined Barela’s

Guidelines range to be twelve to eighteen months and that a sentence of nine months,

below that range, is not unreasonable. Despite the district court judge’s statement

that he was imposing “punishment” for Barela’s violations, 3 we also agree that the

judge’s choice of wording does not warrant reversal. The district court’s explanation

of his sentence was replete with consideration of Barela’s circumstances, including

recognition of Barela’s early success at rehabilitation and the effect that injuries


      2
         We find no merit in the claim made by defense counsel at the revocation
hearing that the government had not shown that Barela possessed methamphetamine
for the purposes of determining whether those offenses were “grade B” violations.
Because Barela had a prior drug conviction, the district court correctly held that his
admissions of drug use equated to drug possession for the purposes of determining
that his admitted use was a grade B violation of supervised release. See United
States v. Rodriguez, 945 F.3d 1245, 1251 (10th Cir. 2019); United States v.
Rockwell, 984 F.2d 1112, 1114 (10th Cir. 1993) (“There can be no more intimate
form of possession than use.”), abrogated on other grounds by Johnson v. United
States, 529 U.S. 694, 699 n.2 (2000). The district court also correctly determined
that Barela’s admissions were sufficient to show drug use and possession by a
preponderance of the evidence.
      3
        We note that the “punishment” language was introduced into the hearing by
defense counsel in the context of her argument on an appropriate sanction for
Barela’s violations of the court’s orders imposing conditions for supervised release.
                                            5
stemming from Barela’s 2018 automobile accident may have had on his drug use. In

considering the appropriate sanction to apply, the court discussed how a short prison

sentence would contribute to his addiction treatment and commitment to

rehabilitation, which were jeopardized by Barela’s ongoing drug use while on

supervised release. The court also determined that a sentence below the Guidelines

range with an additional four years of supervised release would protect society while

encouraging Barela’s rehabilitation. A below-Guidelines sentence is presumed

reasonable, see Balbin-Mesa, 643 F.3d at 788, and there is nothing in the record that

would rebut this presumption. Accordingly, we hold that Barela’s sentence of nine

months’ imprisonment and four years of supervised release is reasonable.

      In his letter to the district court, Barela complained that his counsel rendered

constitutionally ineffective assistance by failing to obtain documents Barela believed

would have fortified his defense. Barela contends that these documents would have

shown the additional efforts he took to address the pain and suffering arising from his

automobile accident that were not reflected in the medical records introduced at the

hearing. Ineffective assistance of counsel claims should generally not be brought on

direct appeal and are presumptively dismissible. See United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 2019). Because Barela’s claims require development of

the record by the district court on collateral review, he has not rebutted the

presumption that his ineffective assistance of counsel claim is dismissible. See id.

      Finally, our independent review of the record has not uncovered any other

potentially meritorious issues.

                                            6
                                     III

     For the foregoing reasons, we GRANT counsel’s request to withdraw and

DISMISS the appeal.




                                      Entered for the Court


                                      Carlos F. Lucero
                                      Circuit Judge




                                      7
