UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GARNETT RAPHEAL ADDISON, Defendant - Appellant. No. 11-8059 (D.C. No. 1:11-CR-00083-ABJ-1) (D. Wyo.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.
Garnett Addison pled guilty to one count of sexual abuse and was sentenced to 87 months of imprisonment and 15 years of supervised release. Mr. Addison filed a timely notice of appeal of the district court’s judgm ent. After a diligent search of the record,

* After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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 

### February 6, 2012
Elisabeth A. Shumaker Clerk of Court-2- Mr. Addison’s counsel determined that there we re no issues that coul d support an appeal. He therefore filed a motion to withdraw and a brief pursuant to Anders v. California , 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291 and finding no meritorious issues, we dismiss the appeal. We also grant counsel’s motion to withdraw.
I. BACKGROUND Mr. Addison was charged by indictment on March 18, 2011, with one count of sexual abuse in violation of 18 U.S.C. §§ 1153 and 2242(2)(B). As permitted under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Addison entered into a plea agreement with the government in which he stipulated to a pr ison sentence of 87 months. At Mr. Addison’s plea hearing on May 19 , 2011, he acknowledged that he had engaged in a sexual act with a minor who wa s drunk and passed out at the time. Mr. Addison stated he was a member of the Nort hern Arapaho tribe and that the offense took place in Indian country. Purs uant to the plea agreement, Mr. Addison entered a plea of guilty. In preparation for Mr. Addison’s senten cing, his probation officer completed a presentence report. At Mr. Addison’s sentenci ng hearing, the court noted that neither the prosecution nor the defense objected to the pr esentence report. The report concluded that Mr. Addison’s offense level of 29 and his criminal hist ory category I placed his Sentencing Guidelines (the “Guidelines”) range at 87 to 108 months of imprisonment. The maximum statutory term for Mr. Addison’s offense was life imprisonment. See 18 U.S.C. § 2242. Under the Guidelines, Mr. Addison’s range for a term of supervised-3- release was five years to life. The district court noted that Mr. Addiso n had entered into a plea agreement in which he stipulated to a prison term of 87 months, which was at the low end of the Guidelines range. The court adopted the 87-m onth term, stating that it was “sufficient to punish and to not depreciate th e conduct that occurred in this matter and the victimization of this young woman.” ROA, Vol. 3 at 41-42. The court also noted that the sentence was “sufficient but not greater than necessary considering the exte nt of the needs of Addison,” who at age 25 was “literally frozen in place with an alcohol addiction . . . and trapped with a lack of any marketable skill.” Id. at 42. Beyond the prison sentence, Mr. Addison re quested a sentence of five years of supervised release, while the government requ ested lifetime supervisi on of Mr. Addison. The district court ordered 15 years of s upervised release, as recommended in Mr. Addison’s presentence report. Mr. Addison al so was ordered to pay a special assessment of $100 and a fine of $500. The court ente red its judgment on the record on August 2,
2011. Mr. Addison filed a timely notice of appeal on August 15, 2011. His counsel then filed an Anders brief and a motion to withdraw, stati ng that he could “find no meritorious grounds for appeal and request[ing] permis sion to withdraw from representation on appeal.” Aplt. Br. at 13. The government notifie d the court that it would not oppose the Anders motion. Mr. Addison was notified of his counsel’s Anders motion, and he has not filed a response.-4- II. DISCUSSION A. Standard of Review and Applicable Law
Pursuant to Anders , counsel may “request permissi on to withdraw where counsel conscientiously examines a case and determ ines that any appeal would be wholly frivolous.” United States v. Calderon , 428 F.3d 928, 930 (10th Cir. 2005). Under Anders , counsel must 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 argumen ts to the court. The [c]ourt must then conduct a full examination of the record to de termine whether defendant’s claims are wholly frivolous . If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. Id. (citing Anders , 386 U.S. at 744). “[T]his Court reviews sentences for reasona bleness, as informed by the 18 U.S.C. § 3553(a) sentencing factors.” United States v. Montgomery , 550 F.3d 1229, 1233 (10th Cir. 2008); see also Gall v. United States , 552 U.S. 38, 51 (2007). This review consists of two components: procedural and substantive reasonableness. See Gall , 552 U.S. at 51. The procedural reasonableness of a sent ence is reviewed under an abuse of discretion standard. Id. However, our review is for plai n error if the defendant “did not object to the procedure by which his sentence was determined and explained” in the district court. United States v. Ruiz-Terrazas , 577 F.3d 1196, 1999 (10th Cir. 2007). Review of a sentence’s procedural reasonabl eness assesses whether the district court failed to calculate or improperly calculated th e Guidelines range, treated the Guidelines-5- as mandatory, did not consider the factors under § 3553(a), based the sentence on clearly erroneous facts, or did not adequa tely explain the chosen sentence. See Gall , 552 U.S. at 51. “The sentencing court, however, is not required to consider individually each factor listed in § 3553(a), nor is it required to recite any magic words to show us that it fulfilled its responsibility to be mindful of the [§ 3553(a)] f actors . . . .” United States v. Cordova , 461 F.3d 1184, 1189 (10th Cir. 2006). The substantive reasonableness of a sent ence also is reviewed for abuse of discretion. Gall , 552 U.S. at 51. This review assesses whether “the length of the sentence is unreasonable given the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” United States v. Reyes-Alfonso , 653 F.3d 1137, 1145 (10th Cir. 2011), cert. denied , 132 S. Ct. 828 (2011); see also Gall , 552 U.S. at 51. If a sentence is within the properly calculat ed Guidelines range, we pres ume it to be substantively reasonable. See Reyes-Alfonso , 653 F.3d at 1145.
B. Application We have conducted a full review of the record and agree with Mr. Addison’s counsel that it indicates no meritorious issues that may be appealed. The Anders brief considers a single issue: whether an 87-mon th sentence is reasonable when it is at the low end of the Guidelines range and was s tipulated to by both parties. Because Mr. Addison’s sentence also includes 15 years of supervised release, to which he did not stipulate, we consider it as part of the reasonableness inquiry. The district court discusse d its reasoning in open court for imposing the 87-month-6- prison term and 15-year term of supervised release and stated that it considered the factors set forth in 18 U.S.C. § 3553(a). The court concluded that the 87-month term was “sufficient to punish and to not depreciate” the offense a nd the victimization of the minor, but also that it was “sufficient but not greater than necessary considering the extent of the needs of Addison.” ROA, Vol. 3 at 41-42. The court discussed Mr. Addison’s addiction to alcohol, his lack of employment history, his educational deficits, and his need for vocational training. Altho ugh the court stated that prison was not the best place to solve Mr. Addison’s alcohol addi ction and his lack of vocational training, it noted that some programs, including treatment programs, would be available to Mr. Addison. The court also stated that because Mr. Ad dison’s crime was a sex offense, “the law becomes very much involved.” Id. at 42. It concluded that 15 years of supervised release was appropriate and could be terminated early if Mr. Addison was well behaved. As the court noted, “once a person achieves independ ence and is functioning as a citizen . . . and leading a sober and productive life, there be comes less reason to be supervising that person.” Id. at 43. Based on the district court’s discussion, we conclude that it was mindful of the § 3553(a) factors and considered them in imposing Mr. Addison’s sentence. Nothing suggests that the imposition of the 87-month sentence or the 15 years of supervised release was procedurally unreasonable. The district court recognized that Mr. Addison’s plea agreement stipulated a term of imprison ment, but it also considered the § 3553(a)-7- factors to ensure the sentence was appropriate . Furthermore, Mr. Addison’s challenge to the procedural reasonableness of his sentence would be reviewed for plain error because he failed to object to the procedure of determ ining his sentence or the district court’s explanation of his sentence. Our review of the record has revealed no error, let alone a plain one. Mr. Addison’s sentence also has a pres umption of substantive reasonableness because both the prison and supervised releas e terms are within th e Guidelines range. See United States v. McBride , 633 F.3d 1229, 1232 (10th Cir. 2011). His 87-month prison term is especially reasonable because he bargained for it and because it is at the low end of the Guidelines range for a serious felony offense. The di strict court’s concern for Mr. Addison’s alcohol addiction and lack of employment history also supports the reasonableness of the supervised release term. Our review of the substantive reasonableness of Mr. Addison’s sentence finds no abuse of discretion in light of the court’s consideration of the § 3553(a) fact ors and its understanding of Mr. Addison’s history. Moreover, this court likely has no jurisd iction over Mr. Addison’s appeal of the 87-month sentence. In United States v. Calderon , we stated: Under Federal Rule of Criminal Pr ocedure 11(c)(1)(C), parties may, in structuring a guilty plea, “agree that a specific sentence or sentencing range is the appropriate disposition of th e case, ... (such a recommendation or request binds the court once the court a ccepts the plea agreement).” Where a defendant agrees to and receives a specific sentence, he may appeal the sentence only if it was (1) imposed in vi olation of the law, (2) imposed as a result of an incorrect application of the Guidelines, or (3) is greater than the-8- sentence set forth in the plea agreement. Otherwise, the Court lacks jurisdiction over the appeal

. 428 F.3d at 932 (emphasis a dded) (citations omitted). Having concluded that Mr. Addison’s 87-mont h sentence is reasonable, we see no basis for concluding that it was in violation of the law. The record also does not indicate that Mr. Addison’s sentence was a result of an incorrect applicati on of the Guidelines, and he received the 87-mont h term he agreed to in the plea agreement. We therefore lack jurisdiction over his appeal with resp ect to his 87-month prison sentence. See id. at 932- 33; United States v. Silva , 413 F.3d 1283, 12 84 (10th Cir. 2005); see also United States v. Torres-Varela , 229 F. Appx. 745, 749-50 (10th Cir. 2007) (unpublished) 1 (granting a motion to withdraw under Anders and dismissing an appeal after concluding that a 46- month sentence was reasonable and noting that the court lacks jurisd iction due to a Rule 11(c)(1)(C) plea agreement).
III. CONCLUSION We dismiss the appeal and grant counsel’s motion to withdraw.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge

1 Unpublished opinions lack preceden tial value but may be cited for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.