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United States v. Rodriguez

United States Court of Appeals, Tenth Circuit

December 5, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CRYSTAL RODRIGUEZ, Defendant-Appellant.

(D.C. No. 1:13-CR-00503-RBJ-1) (D.Colo.)

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. [**]

ORDER AND JUDGMENT [*]

PAUL J. KELLY, JR. CIRCUIT JUDGE

Defendant-Appellant Crystal Rodriguez appeals from the sentence imposed upon violation of her supervised release. Ms. Rodriguez's attorney filed a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We dismiss the appeal and grant counsel's motion to withdraw.

Background

Ms. Rodriguez pled guilty to conspiracy to possess methamphetamine with intent to distribute and was sentenced to 70 months' imprisonment followed by four years' supervised release. On July 1, 2013, her term of supervised release began.

On January 22, 2014, Rodriguez was arrested and charged with violating her supervised release. The government alleged four violations including failing to participate in drug testing and failing to notify her probation officer of a change of residence. 1 R. 7–8. The probation office calculated the applicable sentencing range to be six to twelve months' imprisonment and up to five years of supervised release and recommended a sentence of six months' imprisonment followed by two years of supervised release. 2 R. 32. As special conditions of supervised release, the probation office recommended Ms. Rodriguez complete a substance abuse program, complete a mental health treatment program, and reside in a residential reentry center for a period of up to 180 days. Id. at 33.

In a sentencing recommendation, the probation officer explained that during Ms. Rodriguez's brief time on supervised release, she "stopped providing random urinalyses, failed to advise me of her residence, and eventually ceased communication." Id. The officer explained "it became challenging to build a rapport and assist [Ms. Rodriguez] with re-entering the community" and that she "often presents as guarded, which makes is [sic] difficult to determine her needs." Id. The probation officer believed the residential reentry center would "provide structure, treatment, and a place to stay until [Ms. Rodriguez] is able to become self sufficient." Id. Ms. Rodriguez did not object to any of the report.

At the April 8, 2014 sentencing hearing, Ms. Rodriguez admitted to the violations and was sentenced in accordance with the probation office's recommendations. 1 R. 29. Ms. Rodriguez did not object to the sentence. The district court entered judgment and Ms. Rodriguez filed a timely notice of appeal.

Discussion

In Anders, the Supreme Court explained that if appointed counsel "finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." 386 U.S. at 744. Ms. Rodriguez's counsel has done so. Aplt. Br. 4–5. Ms. Rodriguez was served with a copy of the Anders brief, id. at 8, but did not contest or respond to it. Pursuant to Anders, we conduct an independent review to determine whether Ms. Rodriguez's claims are frivolous, 386 U.S. at 744, and we conclude they are.

Ms. Rodriguez has been released from prison and is under the supervision of the Denver Residential Reentry Management field office. See http://www.bop.gov/inmateloc/ (last visited Dec. 1, 2014). Thus, any question of the reasonableness of Ms. Rodriguez's prison term is now moot, see United States v. Meyers, 200 F.3d 715, 721–22 & n.3 (10th Cir. 2000), and she can only challenge the imposition of supervised release and special conditions of release.

We will not reverse a sentence following a revocation of supervised release if the record shows the sentence is "reasoned and reasonable." United States v. Handley, 678 F.3d 1185, 1188 (10th Cir. 2012) (citation omitted). "A 'reasoned' sentence is one that is 'procedurally reasonable'; and a 'reasonable' sentence is one that is 'substantively reasonable.'" United States v. Vigil, 696 F.3d 997, 1001 (10th Cir. 2012) (citation omitted).

A sentence is procedurally unreasonable where a district judge failed to properly consider the sentencing factors in 18 U.S.C. § 3553(a) or failed to conduct an individualized assessment of how the factors apply to a defendant. See United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Because Ms. Rodriguez did not object to the Guidelines calculation at the sentencing hearing, we review for plain error. Id. Normally, where plain error is not argued to this court on appeal, it is waived. See McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010). However, given our duty to independently assess Ms. Rodriguez's claims to determine if counsel should be appointed for her appeal, Anders, 386 U.S. at 744, we proceed on the assumption that appointed counsel would argue the plain error standard. Nevertheless, we have reviewed ...


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