UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

KURT A. URBANEK, 

 Defendant - Appellant. 

No. 21-3079 

(D.C. No. 6:16-CR-10038-EFM-1) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MORITZ, BRISCOE, and CARSON, Circuit Judges. 

_________________________________ 

After pleading guilty for possessing a firearm while a felon, a violation of 18 

U.S.C. §§ 922(g)(1) and 924(a)(2), Kurt Urbanek was sentenced in February 2017 to 

36 months’ imprisonment followed by three years supervised release. In February 

2021, the United States filed the instant petition to revoke Defendant’s supervised 

release. After Defendant pled guilty to four of five alleged violations, the district 

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 28, 2022

Christopher M. Wolpert 

Clerk of Court

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court revoked Defendant’s supervision and sentenced him to eighteen months’ 

incarceration with no term of supervision to follow. Defendant timely appealed. 

Defendant’s counsel submitted an Anders brief stating that this appeal presents 

no non-frivolous grounds for reversal. After careful review of the record, we agree. 

Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to 

withdraw and dismiss this appeal. 

I. BACKGROUND 

This appeal follows Defendant’s second revocation hearing on his 2017 guilty 

plea. In 2017, Defendant was charged in a six-count indictment: five counts of 

unlawful possession of a firearm, ROA, Vol. I at 13–15 (all violations of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2)); and one count of unlawful possession of body armor, 

ROA, Vol. I at 15 (violation of 18 U.S.C. §§ 931(a) and 16). Defendant pled guilty 

to one count of being a felon in possession of a firearm, and the district court 

sentenced him to thirty-six months’ imprisonment followed by three years of 

supervised release. While on supervised release, Defendant had his supervised 

release first revoked in December 2019, and after a hearing, the district court 

sentenced him to twelve months, followed by twenty-four months’ supervised 

release. 

On April 14, 2021, the district court held a second revocation hearing after the 

government filed another supervised release violation report. The government 

alleged four violations: possession of a controlled substance, namely 

methamphetamine; use of a controlled substance, namely methamphetamine; contact 

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with a person known to have engaged in criminal activity; and attempting to 

adulterate a urine sample. The government did not proceed with a fifth violation 

after a magistrate judge found the allegation lacked probable cause. Defendant 

admitted to the four violations, and the court accepted his admission. No other 

evidence was entered by either party. 

The district court determined that Defendant’s highest violation was in the 

category “B” and that he had a criminal history category of “IV.” ROA, Vol. III at 

45–46. During the revocation hearing, Defendant argued that he should remain 

incarcerated until he could enter a treatment program with the VA, where he had a 

bed secured for April 22, 2021. He also argued that the court could require 

Defendant to attend an inpatient program or delay proceedings on the revocation until 

after he completed a treatment program. The government argued that Defendant’s 

prior revocation and use of a urine adulteration device showed his dishonesty. The 

district court ultimately concluded that Defendant was “not really working in good 

faith” with the probation office nor was he “amenable to supervision.” ROA, Vol. III 

at 57–60. 

Defendant notified his attorney that he wished to appeal both the revocation of 

his supervised release and the eighteen-month sentence, and his counsel timely filed 

a notice of appeal. Counsel then submitted an opening brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), authorizing counsel “to request permission to 

withdraw where counsel conscientiously examines a case and determines that any 

appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 

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(10th Cir. 2005). Anders entitles a defendant to file a response to counsel, raising 

additional points for appeal. Anders, 386 U.S. at 744. Neither Defendant nor the 

government filed a response. 

II. DISCUSSION 

Anders provides that: 

[I]f counsel finds [the defendant’s] case to be wholly 

frivolous, after a conscientious examination of it, he 

should so advise the court and request permission to 

withdraw. That request must, however, be accompanied 

by a brief referring to anything in the record that might 

arguably support the appeal. . . . [T]he court—not 

counsel—then proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly 

frivolous. If it so finds it may grant counsel’s request to 

withdraw and dismiss the appeal . . . . 

386 U.S. at 744. When counsel submits an Anders brief, we review the record de 

novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (per curiam). 

Based on our de novo review of the record, we conclude that none of the issues 

addressed in the Anders brief have merit, nor have we detected any other nonfrivolous issue. 

A. Defendant has no non-frivolous argument challenging the district 

court’s revocation of his supervised release. 

We review a district court’s revocation of supervised release for abuse of 

discretion. United States v. Metzener, 584 F.3d 928, 932 (10th Cir. 2009) (citation 

omitted). If a district court finds “by a preponderance of the evidence that [a] 

defendant violated a condition of supervised release,” it may revoke the defendant’s 

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supervised release. 18 U.S.C. § 3583(e)(3). The requirements for a revocation 

hearing are set forth in Federal Rule of Criminal Procedure 32.1. 

Rule 32.1(b)(2) sets out five requirements for a revocation hearing. First, the 

defendant must have written notice of the alleged violation. Fed. R. Crim. P. 

32.1(b)(2)(A). Here, the district court informed Defendant that “a report of 

violations of your conditions of supervised release” had been filed and ensured that 

Defendant had seen the report. ROA, Vol. III at 43. Next, Defendant was entitled to 

the “disclosure of evidence” against him and an opportunity to present his own 

evidence and question any adverse witnesses. Fed. R. Crim. P. 32.1(b)(2)(B)–(C). 

Here, Defendant admitted to the violations, and no evidence was submitted to the 

district court. Third, Defendant had a right to be represented by counsel, which he 

was. Fed. R. Crim. P. 32.1(b)(2)(D). Finally, Defendant was given ample 

“opportunity to make a statement and present any information in mitigation.” Fed. R. 

Crim. P. 32.1(b)(2)(E); see ROA, Vol. III at 55–59, 62–73. 

Both the defendant’s admission to the violations and the district court’s 

following of proper procedure in the revocation hearing lead this court to conclude 

that the district court did not abuse its discretion in revoking Defendant’s supervised 

release. 

B. Defendant has no non-frivolous argument challenging the district 

court’s eighteen-month sentence. 

This court reviews a revocation sentence for clear error regarding its factual 

findings and de novo on its legal conclusions. United States v. Handley, 678 F.3d 

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1185, 1188 (10th Cir. 2012). If a sentence is both “reasoned and reasonable,” this 

court will not disturb it. Id. (citations omitted). A “reasoned sentenced” is one that 

is procedurally reasonable, while a “reasonable sentence” is one that is substantively 

reasonable. United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011). 

Defendant’s sentence is both procedurally and substantively reasonable. 

First, a procedurally unreasonable sentence is one where the district court fails 

to correctly calculate the Guidelines sentence, treats the Guidelines sentence as if it is 

mandatory, relies on clearly erroneous facts, or fails to adequately explain the 

sentence. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). The district 

court properly classified Defendant’s Guidelines range, highest violation grade, and 

criminal history. ROA, Vol. III at 45–46. While the government did not pursue one 

of the five initial violations, that decision had no impact on the district court’s 

calculations. The district court recognized that there was a sentencing range he could 

consider. Id. When the district court imposed its sentence, it explained its reasons 

for doing so. ROA, Vol. III at 71–72. Thus, the imposition of the eighteen-month 

sentence was procedurally reasonable. 

Next, a sentence is substantively unreasonable when it “exceeds the bounds of 

permissible choice, given the facts and the applicable law.” United States v. Chavez, 

723 F.3d 1226, 1233 (10th Cir. 2013) (quotation omitted). Here, the eighteen-month 

sentence was within the Guidelines range. ROA, Vol. III at 46 (“the law would 

authorize me to revoke [Defendant]’s term of supervision and sentence him to a term 

of incarceration of up to two years”). The district court gave adequate explanation 

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for the imposed sentence, relying on the applicable facts. Id. at 71–73 (explaining 

that he doubted Defendant was “committed enough to comply over a long haul;” 

recognizing that the Defendant has “been back here several times;” and that “based 

on the factors that I’m required to consider and certainly have considered at length, 

. . . this is an appropriate sentence”). The district court’s imposition of an 

eighteen-month sentence did not exceed the bounds of permissible choice, and thus is 

substantively reasonable. 

III. CONCLUSION 

Our independent review of the record reveals that Defendant has no 

non-frivolous grounds for reversal based on either issue raised in counsel’s Anders

brief or any other potential issues this record would support. We therefore grant 

counsel’s motion to withdraw and dismiss this appeal.

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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