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 fire arm while a felon, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a )(2), Kurt Urbanek was sent enced in February 2017 to 36 months’ imprisonment followed by three year s supervised release. In February 2021, the United States file d the instant petition to re voke Defendant’s supervised release. After Defendant pled guilty to four of five alleged viol ations, the district

* After examining the briefs and appella te record, this pa nel 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 12 court revoked Defendant’s s upervision 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 th is appeal presents no non-frivolous grounds for reversal. After ca reful review of the record, we agree. Exercising jurisdiction under 28 U.S.C. § 1291, we grant c ounsel’s motion to withdraw and dismiss this appeal.
I. BACKGROUND This appeal follows Defendant’s s econd revocation hearing on his 2017 guilty plea. In 2017, Defendant wa s charged in a six-count i ndictment: 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 possessi on of a firearm, and the district court sentenced him to thirty-s ix months’ imprisonment fo llowed by three years of supervised release. While on supervised release, De fendant had his supervised release first revoked in December 2019, and after a hearing, the district court sentenced him to twelve months, follo wed by twenty-four months’ supervised release. On April 14, 2021, the district court he ld a second revocation hearing after the government filed another supervised re lease violation repor t. The government alleged four violations: possession of a controlled substance, namely methamphetamine; use of a controlled substance, namely methamphetamine; contact Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 23 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 allega tion 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 De fendant’s highest vi olation was in the category “B” and that he had a criminal hist ory 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 al so 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 adulte ration device showed his dishonesty. The district court ultimately c oncluded that Defendant was “ not really working in good faith” with the probation office nor was he “am enable 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 s ubmitted an opening br ief pursuant to Anders v. California , 386 U.S. 738 (1967), au thorizing counsel “to request permission to withdraw where counsel conscientiously ex amines a case and determines that any appeal would be wholly frivolous.” United States v. Calderon , 428 F.3d 928, 930 Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 34 (10th Cir. 2005). Anders entitles a defendant to file a response to counsel, raising additional points for appeal. Anders , 386 U.S. at 744. Neit her Defendant nor the government filed a response.
II. DISCUSSION Anders provides that: [I]f counsel finds [the defenda nt’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 anythi ng 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 wh ether the case is wholly frivolous. If it so finds it ma y 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 ar gument challenging the district court’s revocation of hi s supervised release. We review a district court’s revocati on of supervised release for abuse of discretion. United States v. Metzener , 584 F.3d 928, 932 (10t h Cir. 2009) (citation omitted). If a district c ourt finds “by a preponderan ce of the evidence that [a] defendant violated a condition of supervised release,” it may revoke the defendant’s Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 45 supervised release. 18 U. S.C. § 3583(e)(3). The re quirements for a revocation hearing are set forth in Federal Rule of Criminal Procedure 32.1. Rule 32.1(b)(2) sets out fi ve requirements for a revoca tion hearing. First, the defendant must have written notice of the alleged violation. Fed. R. Crim. P. 32.1(b)(2)(A). Here, the district cour t informed Defendant that “a report of violations of your cond itions of supervised release” had been f iled and ensured that Defendant had seen the report. ROA, Vol. III at 43. Ne xt, Defendant was entitled to the “disclosure of evidence” against him and an opportunity to present his own evidence and question any advers e witnesses. Fed. R. Cr im. P. 32.1(b)(2)(B)–(C). Here, Defendant admitted to the violations, and no ev idence was submitted to the district court. Third, De fendant had a right to be re presented by counsel, which he was. Fed. R. Crim. P. 32.1(b)(2)(D). Finally, Defendant was given ample “opportunity to make a statem ent and present any informati on 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 revocati on hearing lead this court to conclude that the district court did not abuse its di scretion in revoking De fendant’s supervised release.
B. Defendant has no non-frivolous ar gument 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 Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 56 1185, 1188 (10th Cir. 2012). If a sentence is both “reasoned and r easonable,” this court will not disturb it. Id . (citations omitted). A “r easoned sentenced” is one that is procedurally reasonable, while a “reasona ble 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 s ubstantively reasonable. First, a procedurally unreasonable sentence is one where the di strict court fails to correctly calculate the Guid elines sentence, treats the Gu idelines sentence as if it is mandatory, relies on clearly erroneous fact s, 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 Guid elines range, highest violation grade, and criminal history. ROA, Vol. III at 45–46. While the government did not pursue one of the five initial violati ons, that decision had no impa ct 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 unreas onable when it “exceeds the bounds of permissible choice, given the fa cts 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 Guid elines 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 Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 67 for the imposed sentence, relyi ng on the applicable facts. Id. at 71–73 (explaining that he doubted Defendant was “committe d 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 appropria te 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 reco rd reveals that Defendant has no non-frivolous grounds for re versal based on either i ssue raised in counsel’s Anders brief or any other potential is sues this record would supp ort. We therefore grant counsel’s motion to withdraw and dismiss this appeal.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 21-3079 Document: 010110663193 Date Filed: 03/28/2022 Page: 7