UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

DANIEL WAYNE LOWE,

Defendant - Appellant.

No. 13-2163

(D.C. No. 1:07-CR-00484-MCA-1)

(D.N.M.)

ORDER AND JUDGMENT*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

Daniel Wayne Lowe appeals the district court’s judgment revoking his supervised 

release and imposing eight months’ imprisonment followed by two years of additional 

supervised release. His counsel moves for leave to withdraw in a brief filed pursuant to 

 

* After examining appellant’s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist 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 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 

May 9, 2014

Elisabeth A. Shumaker 

Clerk of Court
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Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. 

§ 1291, we dismiss the appeal and grant counsel’s motion to withdraw. 

I 

Lowe pled guilty in 2008 to being a felon in possession of a firearm and 

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced to 

seventy months’ imprisonment and three years of supervised release. On May 30, 2013, 

Lowe’s probation officer petitioned the district court for revocation of his supervised 

release. The petition alleged that Lowe failed to: (1) participate in and successfully 

complete a substance abuse treatment program by failing to submit to drug testing, twice 

testing positive for use of illegal drugs, and testing positive for use of alcohol; and 

(2) refrain from the use and possession of alcohol.

At a hearing before the district court,1

 Lowe admitted the violations. Because his 

most serious offense was a Grade C violation and Lowe had a criminal history category 

of VI, his U.S. Sentencing Guidelines range was eight to fourteen months’ imprisonment, 

which could be followed by up to three years of supervised release, less any prison term 

imposed. The court revoked Lowe’s supervised release and sentenced him to eight 

months’ imprisonment and two years of supervised release with special conditions. 

 

1

 The judge who sentenced Lowe for his supervised release violations was not the 

same judge who sentenced him on his original conviction. 
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II 

After conscientiously examining a criminal case, an attorney who concludes that 

any appeal would be frivolous may request permission to withdraw. Anders, 386 U.S. at 

744. Counsel must submit to the court and the client a brief identifying any potentially 

appealable issues. Id. The defendant may then file a pro se brief. Id. If, upon careful 

examination of the full record, the court determines that the case is “wholly frivolous,” it 

may grant the request to withdraw and dismiss the appeal. Id. 

Although Lowe’s counsel raises several issues at his client’s request, we agree 

with counsel that none of them constitutes a meritorious ground for appeal. Lowe 

believes his counsel provided ineffective assistance by failing to correct the district 

court’s misunderstanding of how much presentence credit he possessed to offset his term 

of imprisonment. During sentencing, the district court stated that Lowe had almost three 

months’ credit against his prison sentence, but he actually had approximately a month. 

The district court imposed a sentence at the bottom of the Guidelines range and 

demonstrated no intent to impose a below-Guidelines sentence. Lowe was therefore not 

prejudiced by his counsel’s failure to correct the error. See Strickland v. Washington, 

466 U.S. 668, 692 (1984) (“any deficiencies in counsel’s performance must be 

prejudicial” to warrant relief). Moreover, the issue is moot because Lowe’s term of 

imprisonment has ended.
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Lowe believes he was prejudiced by the replacement of his original sentencing 

judge because that judge would have understood the significance of his post-violation 

attempts to enter inpatient substance abuse treatment and thus would have imposed such 

a program rather than incarceration. Lowe’s rights were not violated, however, by virtue 

of the fact that his supervised release was revoked by a different judge than the one who 

sentenced him for his underlying crime. United States v. Pearson, 203 F.3d 1243, 1256 

(10th Cir. 2000) (“Congress has granted broad discretion to the federal district courts in 

the assignment of cases to particular judges.”); United States v. Diaz, 189 F.3d 1239, 

1243-44 (10th Cir. 1999) (rejecting argument that “the assignment of five district judges 

to handle various portions of [defendant’s] case violated his due process rights” and 

concluding that “District Judges have the inherent power to transfer cases from one to 

another for the expeditious administration of justice” (quotation omitted)). 

We also disagree with Lowe’s contention that the district court’s imposition of 120 

days in a “halfway house” adds four months to his term of incarceration. District courts 

are specifically authorized to include conditions as part of “a term of supervised release 

after imprisonment,” 18 U.S.C. § 3583, including a requirement that the defendant 

“reside at . . . a community corrections facility (including a facility maintained or under 

contract to the Bureau of Prisons) for all or part of the term” of supervised release, 

§ 3563(b)(11); § 3583(d) (court may order, as condition of supervised release, any 

discretionary condition of probation in § 3563(b)). The Guidelines explicitly permit 
-5- 

“community confinement,” including “residence in a . . . halfway house” to “be imposed 

as a condition of probation or supervised release.” U.S.S.G. § 5F1.1 & cmt. n.1; see also 

United States v. Garcia, 531 F. App’x 869, 870 (10th Cir. 2013) (unpublished) 

(characterizing “require[d] placement in a residential reentry center” as modification of 

supervised release). In the instant case, the requirement that Lowe spend time at a 

residential reentry center to assist his transition back into the community was explicitly 

listed as one of the special conditions of his supervised release both at his sentencing 

hearing and in the district court’s written judgment. The district court acted within its 

statutory authority in requiring that Lowe’s supervised release include four months in a 

halfway house. 

“We will not reverse a sentence following revocation of supervised release if the 

record establishes the sentence is reasoned and reasonable.” United States v. Handley,

678 F.3d 1185, 1188 (10th Cir. 2012) (quotation omitted). In light of Lowe’s criminal 

history, the nature of his violations, and his demonstrated difficulty adjusting to 

supervision, we are satisfied that his sentence meets this standard. Nor have we 

uncovered any potentially meritorious issues in our independent review of the record. 
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III 

For the foregoing reasons, we conclude that there are no nonfrivolous grounds for 

appeal. We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal. 

 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge