UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GENE DEMETRIUS RICHARDSON, Defendant - Appellant. No. 14-6068 (D.C. No. 5:08-CR-00156-HE-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before HOLMES , BACHARACH , and McHUGH , Circuit Judges.
Gene Demetrius Richardson appeals the di strict court’s revocation of his three year term of supervised re lease and imposition of a two- year prison sentence. His attorney has filed an Anders brief and motion to withdraw , asserting that there are no non-frivolous issues for appeal. See Anders v. California , 386 U.S. 738 (1967). This court notified Mr. Richardson of his opportunity to file a pr o se brief, but he has not responded and the time to do so has now pa ssed. We have inde pendently reviewed

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 16, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - the record and agree with c ounsel’s assessment that th ere are no non-frivolous issues for appeal. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we grant the motion to withdraw and dismiss the appeal.
I Mr. Richardson was convicted in 2008 of being a felon in possession of a firearm. He was sentenced to 70 months in prison, followed by three years of supervised release. Shortly after he commenced his term of supervised release, the government filed an amende d petition to revoke it, alle ging that Mr. Richardson had violated eight conditions of his supervised release. At an evidentiary hearing, Mr. Richar dson elected to represent himself. Although he put the government to its bur den of establishing each violation by a preponderance of the evidence, he put on no evidence of his own, conducted no cross-examination, and lodged no objections. Indeed, he made no argument at all and prevented his attorney, who re mained as stand-by counsel, from making a proffer. At the close of the evidence, th e district court sustained the government’s allegations, revoked Mr. Richardson’s supervised releas e, and sentenced him to 24 months in prison, followed by one year of supervised release. Mr. Richardson subsequently appealed, and his attorney filed an Anders brief and motion to withdraw.
II Under Anders , defense counsel may move to w ithdraw if, after conscientiously examining the case, counsel de termines that an appeal w ould be “wholly frivolous.”- 3 - 386 U.S. at 744. “[C]ounsel must submit a brief to the cl ient and the appellate court indicating any potential appealable issues based on the record.” United States v. Calderon , 428 F.3d 928, 930 (10th Cir. 2005). The client may also file a pro se
response. Anders , 386 U.S. at 744. We then cond uct an independent examination of the record to determine “whether the case is wholly frivolous.” Id. If we agree with counsel’s assessment, we grant the motion to withdraw and dismiss the appeal. Id. Mr. Richardson’s attorney has identifie d three potential, al beit frivolous, issues, all of which we re view for plain error. See United States v. McComb , 519 F.3d 1049, 1054 (10th Cir. 2007). First, counsel a ddresses whether there was insufficient evidence of Mr . Richardson’s supervised release violations. The government was obligated to establish e ach violation by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3) (prescribi ng preponderance of the evidence standard for revocation of supervised release); see also United States v. Disney , 253 F.3d 1211, 1213 (10th Ci r. 2001) (applying prepon derance of the evidence standard). To this end, the government called Mr. Richardson’s probation officer, who testified that since Mr . Richardson began his term of supervised release on December 13, 2013, he violat ed the following eight cond itions by engaging in the described conduct:
1. That he reside at a residential reentr y facility for 180 days and comply with all of its rules: by being terminated from his halfway house on January 17, 2014 for repeated rule violations;
2. That he participate in a substance abuse program and abstain from alcohol- 4 - and other intoxicants: by failing to timely report to two counseling sessions;
3. That he notify his probati on officer at least ten da ys before changing his address or employment: by failing to provide an updated address after moving out of his mother’s reside nce and a city rescue mission;
4. That he truthfully answer his proba tion officer’s questions and follow his probation officer’s instructions: by fa iling to report to his probation office or call his probation officer;
5. That he submit to urine testing: by failing to provide a urine sample;
6. That he not commit any federal, state, or local crimes: by being arrested for obstructing a University of Oklahoma police officer;
7. That he not associate w ith anyone engaged in cr iminal activity or any convicted felons: by riding in a car with a known felon who was under the supervision of the Oklahoma De partment of Corrections; and
8. That he not commit any federal, stat e, or local crimes : by being charged with three felonies while held in custody. Specifically, a prison guard discovered that Mr. Richardson posse ssed tobacco, matches, and rolling papers. Mr. Richardson threated to “blo w [the guard] away.” R., Vol. 3 at 19. Then, while making a telephone ca ll, Mr. Richardson instructed the other caller to “put heat on [the detention officer].” Id. As the call was being disconnected, he stated, “burn him, you hear me.” Id. at 20. Later, Mr. Richardson was transported to cour t in a mask and re straints because “he was spitting so much.” Id. at 21-22. He also pressed a camera call-button in his jail cell to get the attention of a female guard while he was masturbating. Id. at 22. This evidence easily es tablishes by a preponderance that Mr. Richardson violated the conditions of his supervised release. Although some of his probation officer’s testimony was hearsay, Mr. Richar dson had ample opport unity to challenge the testimony. But he elected not to do so. See Fed. R. Crim. P. 32.1(b)(2)(C) (providing that defendant at revocation hearing is entitled to appear, present- 5 - evidence, and question adverse witnesses unless the court dete rmines that the interest of justice does not require the witness to appear). Becaus e Mr. Richardson was informed of the charges against him, he ha d the opportunity to challenge the evidence and to put on his own, and yet he declined to object to the hearsay evidence, we cannot say its admission c onstitutes plain error. Second, counsel avers that Mr. Rich ardson might claim his sentence was procedurally unreasonable because the district court failed to de monstrate that it had adequately considered the 18 U.S.C. § 3553( a) factors and to explain its reasons for the sentence it imposed. 1 This argument is frivolous b ecause “[w]here a district court imposes a sentence falling w ithin the range suggested by the Guidelines, Section 3553(c) requires the court to provide only a general statement of the reasons for its imposition of the part icular sentence.” United States v. Chavez , 723 F.3d 1226, 1232 (10th Cir. 2013). Here, the district court sentenced Mr. Richardson to 24 months in prison, which, based on his Criminal Hist ory Category V and Grad e B violation, was at the top of the applicable 18-to-24 month guideline range. See USSG §§ 7B1.1(a)(2); 7B1.3(a)(1); 7B1.4(a); R., Vol. 2 at 26 (PSR, pa ra. 36). In imposing this sentence, the court explained that Mr . Richardson’s violati ons were both serious and extensive. The court was particul arly concerned by the threats and other violations involving the prison guards and police officer. Describing the nature of

1 Counsel does not dispute that Mr. Rich ardson’s sentence, which was within a correctly calculated guideline range , was presumptively reasonable. See United States v. Chavez , 723 F.3d 1226, 1233 (10th Cir. 2013).- 6 - these violations as “egregious,” R., Vol. 3 at 27, the court observe d that “they reflect an affirmative and aggressive failure to follow the in structions of the probation officer and the requirements of probation.” Id. Therefore, noting Mr. Richardson’s lack of effort at the supe rvision process, the court sentenced him to 24 months in prison, followed by one year of supervised release, to include mental health and substance abuse treatment. This explanation manifests th e court’s consideration of the § 3553(a) factors a nd was legally adequate. Third, counsel considered whether the di strict court erred in imposing special conditions of supervised releas e, in particular that Mr. Ri chardson reside at a halfway house for “up to 180 days,” submit to reas onable searches, and pa rticipate in mental health and substance abuse tr eatment, all “at the directi on of the probation officer.” R., Vol. 3 at 28-29. Initially, counsel analyzed whether these conditions impose greater deprivations on Mr. Richardson’s libe rty than is reasonably necessary to deter his criminal conduct, protect the public , and promote his rehabilitation.
See 18 U.S.C. § 3583(d)(2). Given Mr. Rich ardson’s proclivity for criminal conduct, however, as well as the egregious nature of his violations and hi s mental health and substance abuse issues, this argument is frivolous. Indeed, as the district court recognized, the special conditions aim to af ford adequate dete rrence, protect the public, and promote Mr. Rich ardson’s rehabilitation. See 18 U.S.C. § 3553(a)(2)(B)-(D). They involve no great er deprivation of liberty than that reasonably necessary to ach ieve these objectives.- 7 - Counsel also posits that Mr. Richardson might argue that the district court improperly delegated its Ar ticle III authority by requiri ng him to participate in mental health and substanc e abuse treatment “at the direction of the probation officer.” R., Vol. 3 at 28, 29. “Article III prohibits a judge from delegating the duty of imposing the defendant’s punishme nt to the probation officer.” United States v. Mike , 632 F.3d 686, 695 (10th Cir. 2011). We “distinguish between those delegations that merely task the probation officer with pe rforming ministerial acts or support services related to the punishment imposed and thos e that allow the officer to decide the nature or extent of the defendant’s punishment.” Id. “Delegations that do the former are permissibl e, while those that do the latter are not.” Id. In analyzing this issue, we adhere to our review for plain error but “conduct [our] analysis less rigidly when reviewing for pot ential constitutional error.” Id. at 692. This issue is frivolous because we c onstrue “non-specific, all-encompassing conditions” so as to comply w ith constitutional standards. Id. at 696. Indeed, “where a broad condition of supervised release is ambiguous and could be read as restricting a significant liberty interest, we constr ue the condition narrowly so as to avoid affecting that significant liberty interest.” United States v. Bear , 769 F.3d 1221, 1230 (10th Cir. 2014). Here, the district co urt ordered Mr. Richardson to “participate in a program of mental hea lth aftercare at the directi on of the probation officer.” R., Vol. 3 at 28. The court similarly or dered him to “participate in a program of substance abuse aftercare at the direction of the probation officer to include urine,- 8 - breath, or sweat patch testi ng and outpatient treatment.” Id. at 29. Even if these conditions could be construed as permitting probation to se lect inpatient, residential treatment programs, which would impli cate a significant liberty interest, see Mike , 632 F.3d at 696, there is no such express delegation and we decline to adopt that construction, see Bear , 769 F.3d at 1231 (interpreting c ondition so as to not implicate significant liberty interests); cf. Mike , 632 F.3d at 699 (finding error, although not plain error, where condition e xpressly included residentia l placement). Instead, we interpret the condition as giving the proba tion officer authority to direct only outpatient treatment. The court also required that Mr. Richards on reside at the half way house “for a period of up to 180 days at the direction of the [probation] officer.” R., Vol. 3 at 28. Even if this could be construe d as an impermissible delegati on, it was not plain error. See United States v. Huffman , 146 F. App’x 939, 9 43-47 (10th Cir. 2005) (unpublished) (finding no plain error where similar language conferred authority on probation officer to determine the time defendant must reside at community corrections facility, up to th e specified number of days). 2 “Plain error occurs when there is (1) error, (2 ) that is plain, which (3) aff ects substantial rights, and which (4) seriously affects the fa irness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005)

2 Unpublished opinions are not bindi ng precedent. However, because Huffman involved similar circumstan ces, we cite it for its persuasive value. See 10th Cir. R. 32.1(A); United States v. Samuels , 493 F.3d 1187, 1194 n. 9 (10th Cir. 2007).- 9 - (en banc) (internal quotation marks omi tted). To satisfy the third prong, Mr. Richardson must show “a reasonable proba bility that, but for the error claimed, the result of the proceedings wo uld have been different.” Id. at 733 (internal quotation marks omitted). Th is requires that he show his substantial rights were prejudiced. See United States v. Mendiola , 696 F.3d 1033, 1036 (10th Cir. 2012). Mr. Richardson might attempt to establis h prejudice three different ways, none of which are availing. First, he might clai m that but for the discretion afforded to the probation officer, the district court woul d not have imposed the same 180-day halfway-house condition. To show prejudice, Mr. Ri chardson would have to demonstrate that without the delegation, the district court would have imposed a shorter maximum period of conf inement at the halfway hous e. But there is nothing in the record to support such a theory; the court simply or dered that he reside at the halfway house “for a period of up to 180 days at th e direction of the officer.” R., Vol. 3 at 28. Thus, any claim of prejudi ce in this regard is purely speculative and insufficient to satisfy the third prong of plain error review. See Gonzalez-Huerta , 403 F.3d at 740 (Tacha, J., concurring) (“[S]peculation about a possible lighter sentence cannot satisfy the th ird prong of plain error.”); see also United States v. Robinson , 627 F.3d 941, 955 (4th Cir. 2010) (recognizing defendant’s burden to show actual “prejudice and not merely po ssible or speculative prejudice”). A second way Mr. Richardson might cl aim prejudice is if the delegation somehow impaired his ability to petition the district c ourt to modify the condition- 10 - and allow his early release from the halfway house. See 18 U.S.C. § 3583(e)(2) (providing that court “may modify, reduce, or enlarge the conditions of supervised release”). This claim is meritless because nothing in § 3583(e)(2) constrains the district court’s ability to grant early release based on th e conditions set by the court, including a provision for early release by a probation officer. Indeed, we expressly recognized the district court’s continuing authority to modify the conditions of supervised release, regardless of any discretion afforded to the probation officer, in Huffman , 146 F. App’x at 946. Third, Mr. Richardson might attempt to show prejudice by claiming that without the delegation, the district court would grant a request to modify the condition and allow his early release. But this claim is unavailin g because nothing in the condition prohibits him from directly petitioning the distri ct court for early release. In addition, he ca nnot demonstrate that the cour t would grant such a request, and the mere possibility that it might is pur e speculation. Again, this is insufficient to satisfy plain error review. See Gonzalez-Huerta , 403 F.3d at 740. Thus, Mr. Richardson cannot show the delegation prej udiced his substantial rights. In fact, it appears that the challenged condition coul d only benefit Mr. Richardson because it effectively gave him an alternative, expe dited means of seeki ng early release. See Huffman , 146 F. App’x at 943 n.7 (questi oning “how a condition obviating the need to file a petition with the court, rewarding good behavior and expediting early release, could redound other than to [defendant’s] benefit”).- 11 - Additionally, Mr. Richardson cannot esta blish the fourth prong of plain error review—i.e., an error warranting an exerci se of our discretion— because ultimately, the district court ordered hi m to serve no more than 180 days in the halfway house. See id. at 947 (concluding that fourth prong of plain error review was not established because district court—not the probation officer—made the “‘significant penological decision’” to order defendant to serve no more than the sp ecified time in a community corrections facility (quoting United States v. York , 357 F.3d 14, 21 (1st Cir. 2004))). Finally, the district court imposed the following search condition: [T]he defendant must submit to a sear ch of his person, property, or any automobile under his control to be conducted in a reasonable manner and at a reasonable time for the purpo se of detecting fi rearms or other controlled substances at the direction of the proba tion officer if there’s a showing of reasonable suspic ion to justify that. R., Vol. 3 at 29. This condition does not delegate to the probation officer the judicial authority to determ ine the nature and extent of Mr. Richardson’s punishment. See Mike , 632 F.3d at 695. Rather, the district court clearly defined the nature and extent of any search by requiring that it be conducted at a reasonable time, in a reasonable manner, and for the purpose of fi nding firearms or controlled substances. The court also required that any search be supported by reas onable suspicion. Although the probation officer must execute the search, this si mply reflects the officer’s role as “an investigative and supervisory arm of the court,” United States v.- 12 - Davis , 151 F.3d 1304, 1306 (10th Cir. 1998) (internal quot ation marks and brackets omitted). Thus, there was no impermissible delegation.
III Mr. Richardson fails to offer any non -frivolous issues fo r appeal, and our independent review confirms there are none. Accordingly, we grant defense counsel’s motion to withdraw and dismiss this appeal.

Entered for the Court

Carolyn B. McHugh Circuit Judge