United States v. Salome, 10th Cir. (2007)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
April 9, 2007
Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 06-3255
v.
(D. Kansas)
AN THO NY M . SALOM E,
(D.C. No. 97-CR-10053-W EB)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TACH A, Chief Circuit Judge, A ND ER SO N and BROR BY, Circuit

Judges.
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.
Defendant/appellant Anthony M anuel Salome admitted violating the terms
of his supervised release, imposed following his service of a term of
This order and judgment is not binding precedent except under the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.
imprisonment for a previous crime. The district court accordingly revoked his
supervised release and sentenced him to twelve more months imprisonment.
Salome appeals that sentence.
Salomes appointed counsel, Steven Gradert, has filed an Anders brief and
moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).
Salome has not filed a response, and the government has declined to file a brief.
W e therefore base our conclusion on counsels brief and our own review of the
record. For the reasons set forth below, we agree with M r. Gradert that the record
in this case provides no nonfrivolous basis for an appeal, and we therefore grant
his motion to withdraw and dismiss this appeal.
BACKGROUND
Salome pled guilty to obstructing comm erce by robbery, in violation of 18
U.S.C. 1951, and possession of a firearm during a crime of violence, in
violation of 18 U.S.C. 924(c), and, on September 19, 1997, was sentenced to
serve eighty-two months imprisonment, followed by three years of supervised
release. On June 30, 2003, Salome was released from custody to begin serving
his supervised release.
On July 16, 2004, Salome w as arrested by W ichita, Kansas, police officers
for burglary of a motor vehicle and theft. On April 19, 2005, Salome pled guilty
to these charges and, on M ay 24, 2005, he w as sentenced to serve eleven months
-2-
imprisonment in state custody. W hile he w as in Kansas state custody, Salom es

federal term of supervised release was placed on inactive status pending his
release.
On October 12, 2005, Salome was released from the Kansas Department of
Corrections to a work release facility in W ichita, to complete the service of his
sentence. On D ecember 16, 2005, Salome did not return to the work release
facility and he was deemed to have escaped. He was returned to custody on
December 17, and as of the date that counsels Anders brief was filed, October 6,
2006, a charge of aggravated escape from custody was pending against Salome in
state court.
On April 21, 2006, Salome was released from state custody and commenced
state parole. Salome failed, however, to report to the United States Probation
Office. 1 As one of the conditions for his original three-year term of supervised
release, Salome had been ordered to pay restitution in the amount of $42,706.54.
As of his revocation hearing, Salome had paid a total of $1294.06 and had missed
many of his monthly payments.
Accordingly, the Probation Office filed a petition alleging that Salome had
violated four conditions of his supervised release: two counts for failing to abide
by the prohibition that he not commit another violation of federal, state or local
1
Salomes counsel stated at his revocation hearing on the violation of the

terms of his supervised release that Salome was unaware he needed to report to
the United States Probation Office.
-3-
crime, based upon his conviction for motor vehicle burglary and theft and for the
then pending charge of aggravated escape from custody; one count for failing to
report in person to the Probation Office upon his release from custody in the
Kansas correctional facility; and one count for failure to make $100 monthly
installments towards his restitution obligation. Salome made no objections to the
Probation Offices petition.
The district court then revoked Salomes term of supervised release. The
court noted that the highest grade of violation was a Grade B under the United
States Sentencing Commission, Guidelines M anual (USSG ), that his criminal
history was category III, and that the advisory sentencing range under the
Guidelines was eight to fourteen months. The court sentenced Salome to twelve
months for counts one and two, to be served concurrently. No additional sentence
was imposed for the remaining two counts. The court explained that [a]
sentence of incarceration will provide for punishment and deterrence from
subsequent criminal behavior. Tr. of Supp. Release at 7, R. Vol. II. The court
further observed that Salome is not an appropriate candidate for voluntary
surrender. Id. Salome endeavors to appeal that sentence.
D ISC USSIO N
Under Anders, counsel [may] request permission to withdraw [from an
appeal] where counsel conscientiously examines a case and determines that any
-4-
appeal would be wholly frivolous. United States v. Calderon, 428 F.3d 928, 930
(10th Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel
to:
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The [c]ourt must then
conduct a full examination of the record to determine whether
defendants claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsels motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744). As indicated, Salomes counsel has filed his
Anders brief, to which neither Salome nor the government has responded.
W e agree with counsel that there is no nonfrivolous issue related to
Salomes sentence which could form the basis for an appeal. Under 18 U.S.C.
3583(e)(3) and Fed. R. Crim. P. 32.1(b), the district court may revoke a
persons supervised release when that person violates a condition of his or her
supervised release. See United States v. Cordova, 461 F.3d 1184 (10th Cir.
2006). Following that revocation, the district court may sentence the defendant to
a term of imprisonment. Thus, there is no argument to be made that the court
erred in revoking Salomes supervised release and sentencing him to a term of
imprisonment.
Nor is there any nonfrivolous argument to be made about the length of the
sentence imposed. In imposing a sentence following revocation of supervised
release, a district court is required to consider both Chapter 7s policy statements,
-5-
as well as a number of factors provided in 18 U.S.C. 3553(a). Cordova, 461

F.3d at 1188; see also 18 U.S.C. 3583(e). The 3553(a) factors include:
[T]he nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence, protect the public, and provide the
defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner;
pertinent guidelines; pertinent policy statements; the need to avoid
unwanted sentence disparities; and the need to provide restitution.
United States v. Contreras-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).
The court, however, is not required to consider individually each factor listed in
3553(a), nor must it recite any magic w ords to show us that it fulfilled its
responsibility to be mindful of the factors that Congress has instructed it to
consider. U nited States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258-59 (10th
Cir. 2006) (internal quotations omitted). In this case, the court specifically stated
it had considered the nature and circumstances of these violations, the
characteristics of the defendant, and the sentencing objectives required by the
statute. The Court has also considered the Advisory Nonbinding Chapter 7 Policy
Statement issued by the Sentencing Commission. Tr. of Supp. Release at 6, R.
Vol. II. After reviewing the record, we are satisfied that the district court
adequately considered the relevant factors.
Furthermore, we find no error w ith the length of the sentence imposed.
According to the advisory Guidelines for revocation of supervised release, the
recommended range for Salomes sentence was eight to fourteen months.
-6-
USSG 7B1.4(a). The court sentenced him within that range. The sentence was
both reasoned and reasonable.
For the foregoing reasons, we GRANT counsels motion to withdraw and
we DISM ISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-7-

United States v. Salome, 10th Cir. (2007)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Salome, 10th Cir. (2007)

Uploaded by

Copyright:

Available Formats

F I L E D

United States Court of Appeals

U N ITED STA TES O F A M ER ICA,

(D.C. No. 97-CR-10053-W EB)

OR D ER AND JUDGM ENT *

Before TACH A, Chief Circuit Judge, A ND ER SO N and BROR BY, Circuit

imprisonment in state custody. W hile he w as in Kansas state custody, Salom es

Salomes counsel stated at his revocation hearing on the violation of the

as well as a number of factors provided in 18 U.S.C. 3553(a). Cordova, 461

You might also like