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

                             FOR THE TENTH CIRCUIT                           May 16, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-7082
                                                (D.C. No. 6:09-CR-00049-RAW-1)
RICHARD LENO BONAT,                                        (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. **
                  _________________________________

      Defendant Richard Bonat challenges his 24-month prison sentence for

violating a condition of his supervised release.       Before the Court are defense

counsel’s motion to withdraw and Anders brief alleging the frivolity of the appeal, as

well as Bonat’s pro se response to the Anders brief. See Anders v. California, 386

U.S. 738 (1967). Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291, we grant defense counsel’s motion and dismiss the appeal.


      *
         This order and judgment is not binding precedent, except under the doctrines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 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.
      In 1995, Bonat pleaded guilty to being a felon in possession of a firearm under

18 U.S.C. § 922(g). Because he had three prior burglary convictions, the district

court enhanced his sentence under the Armed Criminal Career Act (“ACCA”), 18

U.S.C. § 924(e), and sentenced him to fifteen years’ imprisonment and five years of

supervised release. Bonat had recently completed his prison term and was serving

his term of supervised release when police officers discovered marijuana in his

possession in 2011. Because Bonat’s possession of the drug violated a condition of

his supervised release, the district court sentenced him to an additional 24 months of

supervised release.

      Over a year later, in late 2012, Bonat pleaded guilty in Oklahoma state court to

possession with intent to distribute a controlled substance. In May 2013, the state

court sentenced him to 10 years’ imprisonment in the Oklahoma Department of

Corrections. Accordingly, Bonat’s federal probation officer filed a petition in the

district court to revoke Bonat’s supervised release, and he advised Bonat that

revocation proceedings would take place upon his release from state custody.

Oklahoma granted Bonat early release in August 2016, and he was remanded into

federal custody. He stipulated to the facts in the revocation petition, and the district

court sentenced him to 24 months’ imprisonment—a significant downward variance

from the Guidelines range of 46 to 57 months. U.S.S.G. § 7B1.4; see also 18 U.S.C.

§ 3583(e)(3) (allowing a term of up to 60 months).         Bonat timely appealed the

sentence.



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       When court-appointed counsel wishes to withdraw because the defendant’s

appeal is wholly frivolous, counsel must provide the court with a brief addressing

anything in the record that may support the appeal.        Anders, 386 U.S. at 744.

Counsel should provide this brief to the defendant, and the defendant may raise any

points or grounds for appeal he chooses. Id. We must then make a full examination

of the record and proceedings. United States v. Kurtz, 819 F.3d 1230, 1233 (10th

Cir. 2016). If we determine that the appeal is, indeed, wholly frivolous, we may

dismiss the appeal. Id.

       Pursuant to his Anders burden, defense counsel raises two points, both of

which he rebuts, while Bonat argues two additional points. Defense counsel suggests

that Bonat may contest the procedural and substantive reasonableness of the sentence

and that Bonat may bring a Fifth Amendment “due-process” claim. Bonat, on the

other hand, argues that Johnson v. United States, 135 S. Ct. 2551 (2015), and its

progeny invalidate the enhancement of his original 1995 sentence under the ACCA

and, alternatively, that the enhancement was contrary to the legislative intent of that

statute.

       We first turn to defense counsel’s reasonableness argument.       In reviewing

sentencing decisions accompanying a revocation of supervised release, we apply an

abuse of discretion standard to evaluate the procedural and substantive

reasonableness of the sentence. United States v. Ruby, 706 F.3d 1221, 1225–26 (10th

Cir. 2013); see also United States v. McBride, 633 F.3d 1229, 1231–32 (10th Cir.

2011). Bonat, however, raised only his Johnson argument in the district court and

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made no other objections.       We thus review any unpreserved challenges to the

reasonableness of the sentence for plain error. Ruby, 706 F.3d at 1225.

         We have thoroughly reviewed the record, and we agree with defense counsel

that the district court did not abuse its discretion, let alone plainly err, in sentencing

Bonat. The sentence is procedurally reasonable because the district court adequately

applied the 18 U.S.C. § 3553 sentencing factors as required by § 3583(e).                The

district court stated that it had considered, among other things, the policy statements

in U.S.S.G. Ch.7, the nature and circumstances of the violation, and Bonat’s history

and characteristics. We do not require the district court to state how each factor

informed its decision, nor do we require any “magic words” to show that the court

fulfilled its statutory responsibilities. United States v. Rodriguez-Quintanilla, 442

F.3d 1254, 1258–59 (10th Cir. 2006). Furthermore, the sentence is undoubtedly

substantively reasonable for two reasons.           First, sentences below the properly-

calculated    Guidelines   range   are   entitled    to   a   rebuttable   presumption    of

reasonableness on appeal, and the district court imposed a sentence half of the

recommended term. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir.

2011).     Second, the district court appropriately imposed the revocation sentence

consecutive to the discharged state prison sentence for the conduct that violated the

condition. United States v. Fay, 547 F.3d 1231, 1235–37 (10th Cir. 2008). We see

no other potential challenges to the reasonableness of this sentence.

         Defense counsel next suggests that Bonat might bring a “due-process” claim

under the Fifth Amendment pursuant to United States v. Santana, 526 F.3d 1257 (9th

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Cir. 2008), because his revocation hearing did not occur until four years after his

violation. “Parolees, however, have no legal right to receive an immediate hearing

on their supervised release revocation.” United States v. Romero, 511 F.3d 1281,

1284 (10th Cir. 2008).       Specifically, “there is no constitutional duty to provide

prisoners an adversary parole hearing until they are taken into custody as parole

violators.” Id. Bonat was held in state custody between his 2012 arrest and August

22, 2016, when he was remanded into federal custody. His revocation proceedings

occurred on September 28, 2016.        In light of Romero, we find no due process

violation.

          Finally, Bonat makes two attacks on his underlying sentence. He argues that

his 1995 sentence is unconstitutional because Johnson held that the residual clause of

the ACCA was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. He also

argues that the three robbery convictions used to enhance his 1995 sentence occurred

as part of a “crime spree,” rather than as a pattern of career criminality, and thus fall

outside the congressionally-intended scope of the ACCA.            From what we can

interpret from his letter, Bonat claims that, but for the improper sentencing in 1995,

he would not have been serving a term of supervised release at the time of his 2012

arrest.     But this appeal is not the appropriate forum for Bonat to launch such

collateral attacks on his original sentence. United States v. Cordova, 461 F.3d 1184,

1186 n.2 (10th Cir. 2006) (“To the extent [Defendant] also seeks to contest the

original imposition of supervised release, we reject that contention as well. Such a



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collateral attack cannot be made in an appeal of the revocation of supervised

release.”).

       Because we find this appeal frivolous and without merit, defense counsel’s

motion to withdraw is GRANTED and this appeal is DISMISSED.


                                        Entered for the Court


                                        Bobby R. Baldock
                                        Circuit Judge




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