* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 30 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL L. HILL, Defendant-Appellant. No. 00-3044 (D.C. No. 98-CR-10050) (D. Kan.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.

On December 7, 1998, Defendant-Appellant Michael L. Hill (“Hill”) pled guilty to a charge of making a false statement in v iolation of 18 U.S.C. § 1001(a)(2) in the United States District Court fo r the District of Kansas. The district court sentenced Hill to four months incarc eration followed by a three year term of supervised release. In connection with his sentence, Hill was also- 2 -

required to undergo drug testing, to pay restitutio n, to provide access to any financial information requested by the United State s Probation Office, and to report any purchases over $500 in the month that th e purchase was made. Hill appeared before the district court on August 3 0, 1999 on a motion for revocation of his supervised release. Hill admitte d to the violations of the supervised release alleged in the motion. The dist rict court informed Hill that he had the option of either (1) serving a six month se ntence if his supervised release were revoked that day, or (2) reinstatement of the supervised release, subject to modified conditions, with the promise that any furt her violations would result in a nine month sentence. Hill opted for reinstatement. The district court modified the conditions of Hill’s supervised release to requ ire that he participate in a mental health program to be determined by the Unite d States Probation Office. The United States Probation Office again filed a pe tition to revoke Hill’s supervised release, and the district court held an evidentiary hearing on February 7, 2000. The court found that Hill had violated tw o conditions of his supervised release, in that he had failed to participate succe ssfully in mental health counseling and had failed to provide information re quested by the Probation Office pertaining to his financial affairs. Based on these findings, the district court revoked the supervised release and sentenced Hill to nine months confinement.1 We grant Appellee’s motion to file a supplemental b rief in reply to Hill’s

response to his defense counsel’s Anders brief. - 3 - Hill’s attorney has determined that Hill’s appeal o f the district court’s decision to revoke his supervised release and impos e a nine month confinement is without merit. Hill’s attorney has therefore filed a motion to withdraw as attorney of record and a corresponding Anders brief outlining Hill’s apparent grounds for appeal. See Anders v. California , 386 U.S. 738, 744 (1967). Anders requires that such a brief must refer to “anything in the record that might arguably support the appeal.” Id. Consistent with this requirement, counsel informs us that appellant wishes to allege that there was insu fficient evidence presented at the February 7, 2000 hearing to warrant revocation of his supervised release. (See Aplt. Br. at 5-6.) Hill also wishes to allege that the district court judge was biased against him when he sentenced Hill to nine m onths confinement at the February 7, 2000 hearing, and that the judge theref ore improperly failed to recuse himself pursuant to 28 U.S.C. § 455(a). (See Aplt. Br. at 7-9.) Hill asserts that the judge’s bias against him is evidenced by the fa ct that the district court judge had predetermined the nine month sentence imposed at the February 7, 2000 hearing six months earlier at the August 30, 1999 h earing. Hill has filed a brief on his own behalf raising ad ditional arguments on appeal. 1 In addition to the claims set forth in the Anders brief, Hill asserts that- 4 -

his probation officer was prejudiced against him an d that she: (1) conspired with the judge “behind closed doors” at the August 30, 1 999 hearing; (2) improperly questioned him about various expenditures; (3) cons pired with his mental health doctor to make it difficult for him to comply with the requirement that he participate in mental health counseling; and (4) ma de contact with the local police in connection with a lawsuit that he had filed agai nst that police department. Finally, Hill contends that his counsel was ineffec tive and that he therefore entered into an involuntary guilty plea. We review the district court’s decision to revoke H ill’s supervised release under an abuse of discretion standard. See United States v. Rockwell , 984 F.2d 1112, 1114 (10th Cir. 1993), abrogated on other gro unds byJohnson v. United
States , No. 99-5153, 2000 WL 574359 (U.S. May 15, 2000). We review the district court’s factual findings in connection with the decision to revoke a defendant’s supervised release for clear error. Se e United States v. Hall , 984 F.2d 387, 390 (10th Cir. 1993). In deciding to revoke H ill’s supervised release, the district court concluded that Hill had violated two conditions of his parole. Specifically, the district court found that Hill (1 ) had failed to participate successfully in an approved mental health treatmentprogram because he had failed to appear on two occasions and was late on two other occasions; and (2) had failed to provide his probation officer with fi nancial information concerning- 5 -

the sale of his car. (See Aplt. App. Vol. II at 77-78.) Our review of the r ecord in this case indicates that there is sufficient eviden ce to support the district court’s factual findings concerning Hill’s violations of th e conditions of his supervised release. We therefore hold that the district courtdid not abuse its discretion in revoking Hill’s supervision. With respect to Hill’s claim of bias on the part of the judge, we find that it is also without merit. We review the denial of a m otion to recuse pursuant to § 455(a) under an abuse of discretion standard. Se e United States v. Lowe , 106 F.3d 1498, 1504 (10th Cir. 1997). As an initial matter, we must observe that Hill did not file a motion requesting that the district court judge recuse himself from the case at the time of the February 7, 2000 hearin g. Given that Hill was aware of the alleged basis for the district court’s bias (i. e., the predetermination of his nine month sentence at the August 30, 1999 hearing) prio r to the February 7, 2000 hearing, we are unsympathetic to the argument that the district court judge should have recused himself sua sponte. In any event, we cannot conclude the district court judge erred in failing to recuse himself beca use Hill has not shown bias. “‘[O]pinions formed by the judge on the basis of fa cts introduced or events occurring in the current proceedings, or of prior p roceedings, do not constitute a basis for a bias or partiality motion unless they d isplay a deep-seated favoritism or antagonism that would make fair judgment impossi ble.’” Id. (quoting Liteky v.- 6 -

United States , 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994)). Because we find no evidence of a “deep-seated favor itism or antagonism” on the part of the trial judge in this case, we conclude t hat it was entirely permissible for the judge to refer to the August 30, 1999 sentencin g hearing in determining Hill’s sentence at the February 7, 2000 hearing. We further conclude that Hill is not entitled to re lief based on any of his allegations against his probation officer. Because the United States Probation Office is a branch of the federal judiciary, and a probation officer serves as “an investigatory and supervisory arm” of the sentencin g court, see United States v. Davis , 151 F.3d 1304, 1306 (10th Cir. 1998) (citation an d quotations omitted), we are doubtful that a probation officer could conspir e with a sentencing judge by making sentencing recommendations. Regardless, Hil l does not indicate the evidentiary basis for his assertion that his probat ion officer conspired with the judge, and, without some indicia of reliability, we cannot conclude that the allegation has merit. Hill’s remaining claims agai nst the probation officer are conclusory and all appear to pertain to actions tak en by the probation officer within the normal scope of her duties supervising the defendant. We therefore find that they do not warrant reversal either. Finally, we find that we lack jurisdiction over Hil l’s claim that his trial counsel was ineffective. This case is only an appe al of the district court’s- 7 -

decision to revoke Hill’s supervised release (see Doc. 76), and we are therefore without jurisdiction to consider the voluntariness of Hill’s guilty plea. For the reasons stated above, we AFFIRM the judgment and sentence of the district court and GRANT counsel’s motion to withdr aw. ENTERED FOR THE COURT

David M. Ebel Circuit Judge