UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ROBERT T. LOGSDON, Defendant - Appellant. No. 11-3157 (D.C. No. 6:06-CR -10003-WEB-1) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, MURPHY and MATHESON , Circuit Judges.
Robert Logsdon was found not guilty by reason of insanity of threatening the President of the United States. He was later granted conditional release to the Candlerock Residential Care Facility, but wi thin one day was discha rged from the facility for consuming alcohol on the pr emises and sharing it with a minor, thereby violating his

*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 This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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 

### November 1, 2011
Elisabeth A. Shumaker Clerk of Court-2- conditions of his release. The district cour t revoked his conditional release. Mr. Logsdon filed a notice of appeal. His counsel determined after a diligent search of the record that there are no issues that could support an appeal. He therefore filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Mr. Logsdon filed a response. Exercising jurisdiction under 28 U.S.C. § 1291 and fi nding no meritorious issues, we dismiss the appeal. We al so grant counsel’s motion to withdraw.
I. BACKGROUND In 2006, Robert Logsdon was charged with threatening the Pres ident of the United States in violation of 18 U.S. C. § 871 in the United States Di strict Court for the District of Kansas. The court found him not guilty by reason of insanity on June 11, 2007 and ordered a psychological evaluati on. On May 7, 2008, the cour t adopted the conclusion of the evaluators that releasing Mr. Logsdon from custody created a substantial risk of injury to others. The court therefore co mmitted him to the custody of the Attorney General until an appropriate placement fo r conditional release could be found. On April 20, 2011, th e district court conditionally released Mr. Logsdon to the Candlerock Residential Care Facility in Cedar Vale, Kansas. The conditions of his release included, among others , residing at Candlerock, abst aining from using alcohol, and not committing another federa l, state, or local crime. According to Probation Officer Toni Co rby, on the day Mr. Logsdon arrived at Candlerock, he was observed consuming alco hol on the premises. He was arrested and charged with furnishing alcohol to a minor. Candlerock discharged him from the facility.-3- Officer Corby claims that Mr. Logsdon ad mitted to her that he drank alcohol. On May 17, 2011, the government move d to revoke Mr. Logsdon’s conditional release on the grounds that he (1) was di scharged from Candlerock, (2) consumed alcohol, and (3) committed a crime. Mr. Lo gsdon admitted at the hearing that he purchased alcohol, but claimed that he did not intend to drink it and instead planned to give it to other adults at Candlerock. He al so claimed that he passed a breath test at the time of his arrest. The district court found that Mr. Logsdon violated the conditions of his release by being discharged from Candlerock. The court also found that, “[d]espite Mr. Logsdon’s protestations to the contrary , the circumstances make it hi ghly likely that he purchased alcohol with the intention of cons uming at least some of it, even if a breath test some time after his arrest registered no alcohol in his system.” United States v. Logsdon , 2011 WL 1899305 at *2 (D. Kan. May 19, 2011). The statute that provides for conditional release for those found not guilty of a crime by reason of insanity also provides for revocation of the release: The court shall, after a hearing, determ ine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comp ly with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another. 18 U.S.C. § 4243(g). The district court held th at the defendant bears the burden of proving that continued release would not create a substan tial risk. The court then held that Mr.-4- Logsdon’s continued release would create a substantial risk and ordered his release revoked. The court noted that “the same resu lt would obtain here even if the burden were on the Government.” Logsdon , 2011 WL 1899305 at *3. Mr. Logsdon filed a timely notice of appeal. His counsel then filed an Anders brief and a motion to withdraw, stating that “[c]ounsel has reviewed the record of this case, researched the issues ra ised by [Mr. Logsdon] and found them to have no merit.” Anders Br. at 2. The government notified the cour t that it would not file an answer brief. Mr. Logsdon filed a response.
II. DISCUSSION
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 (1 0th Cir. 2005). Under Anders, counsel must submit a brief to th e 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 Cour t must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after su ch 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). We have co nsidered Mr. Logsdon’s counsel’s Anders brief and Mr. Logsdon’s response, and we have fully reviewed the record. We agree with Mr. Logsdon’s counsel that the record indicates no meritorious issues that may be appealed. The Anders brief considers two issues: (1) whet her the district court erred in-5- placing the burden of disproving dangerous ness on Mr. Logsdon, and (2) whether the court erred in revoking his release. As to the burden, Mr. Logsdon argues that “[i]f the district court had placed the burden [for proving substantial risk] on the g overnment . . . there is a chance that the conclusion of the court in regards to the da ngerousness of my continued released would have been different.” Mr. Logs don’s Response at 1. Because th e district court stated that “the same result would obtain here even if the burden were on the Government,” Logsdon , 2011 WL 1899305 at *3, we need not de cide whether the court correctly placed the burden of disproving dangerousness on M r. Logsdon, and he is clearly wrong about having “a chance” for a different result. As to the revocation, Mr. Logsdon disput es the facts in Officer Corby’s revocation hearing testimony and whether she was qualifie d to testify. But that does not matter because even if he were correct, Mr. Lo gsdon concedes he was discharged from Candlerock, see Mr. Logsdon’s Response at 12. Because Mr. Logsdon’s conditional release was predicated on his remaining at Ca ndlerock, ROA, Vol. 1 at 30, his discharge after one day was itself sufficient for the court to revoke his conditional release. Our review of the record reveal s no potentially meritorious issues.-6- III. CONCLUSION We DISMISS the appeal and GRAN T counsel’s motion to withdraw.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge