*

 This order and judgment is not binding precedent except under the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 3, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL HOOKS,

Defendant-Appellant.

No. 09-3075

(D.Ct. No. 2:03-CR-20185-KHV-JPO-1)

(D. Kan.)

______________________________

ORDER AND JUDGMENT*

Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

The district court found Defendant-Appellant Michael Hooks violated the

conditions of his three-year term of supervised release and sentenced him to

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twenty-four months imprisonment and another three-year term of supervised

release. Mr. Hooks appeals the revocation of his supervised release and

imposition of additional imprisonment and supervised release; however, his

attorney has filed an Anders brief and a motion to withdraw as counsel. See

Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth

hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. Id.

I. Background

On June 14, 2004, Mr. Hooks pled guilty to possession with intent to

distribute more than five grams of cocaine base within 1,000 feet of the real

property of a public elementary school, in violation of 21 U.S.C. §§ 841(a)(1) and

860(a). The district court originally entered a sentence of seventy months

imprisonment and a three-year term of supervised release but later, based on the

government’s Rule 35 motion, amended Mr. Hooks’s sentence to only fifty-seven

months imprisonment. On February 1, 2008, Mr. Hooks was released and began

serving his three years of supervised release. Thereafter, the United States

Probation Office for the District of Kansas alleged Mr. Hooks violated certain

conditions of his supervised release, which included his: (1) failure to refrain

from committing another federal, state, or local crime; (2) failure to participate in

an approved program for substance abuse; (3) failure to truthfully answer all

inquiries from the probation office; (4) failure to maintain employment; (5)

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failure to timely notify the probation officer of his change of residence; (6)

possession, use, or distribution of controlled substances; (7) frequenting places

where controlled substances are illegally sold; and (8) associating with persons

engaged in criminal activity. Mr. Hooks conceded to violating four conditions,

including his failure to truthfully answer all inquiries from the probation office;

maintain employment; timely notify the probation officer of his change of

residence; and participate in an approved program for substance abuse. 

In turn, the government presented evidence on the remaining violations,

including failing to refrain from committing another federal, state, or local crime;

possessing, using, or distributing controlled substances; frequenting places where

controlled substances are illegally sold; and associating with any persons engaged

in criminal activity. The evidence included law enforcement testimony that trash

pulls of two residences resulted in discovery of documents connecting Mr. Hooks

with those residences; multiple corners of plastic bags commonly used to package

narcotics; and marijuana in the form of stems and seeds, as confirmed through lab

analysis. A later search of one of the residences resulted in discovery of a bag

containing 7.4 grams of powder cocaine. In addition, law enforcement officers

detained Mr. Hooks, who possessed two cell phones, including one with a text

message indicating a drug sale of $40 worth of crack cocaine. In addition, a

defendant in an unrelated drug conspiracy testified he purchased drugs from Mr.

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Hooks on multiple occasions after Mr. Hooks’s release from federal custody. 

Based on Mr. Hooks’s concessions and the government’s evidence, the

district court found Mr. Hooks in violation of the conditions of his supervised

release. In revoking Mr. Hooks’s supervised release, the district court found Mr.

Hooks had committed an underlying crime ranking as a Grade A violation, which,

together with his criminal history category of IV, resulted in a recommended

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range of thirtyseven to forty-six months imprisonment. In proposing a twenty-four-month

sentence, the district court stated it took “into account the nonbinding Chapter 7

policy statements” and “believe[d] that the sentence would reflect the seriousness

of [Mr. Hooks’s] violations[,] especially the fact that [he] violated the law by

possessing the illegal substances and distributing them while on supervised

release.” It also noted Mr. Hooks had been “less than compliant with the other

components of supervision including working in a lawful occupation, notifying

the Probation Office about changes in [his] residence or employment, truthfully

responding to inquiries and instruction from the Probation Office, and generally

getting with the program.” Based on the conceded and other established

violations, the district court revoked his supervised release and sentenced him to a

below-Guidelines-range sentence of twenty-four months imprisonment and three

years supervised release. 

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After Mr. Hooks filed a timely notice of appeal, his appointed counsel, who

also represented him at the revocation hearing, filed an Anders appeal brief

explaining that, after a careful examination of the record on appeal and applicable

law, the appeal contained no legally non-frivolous issues, and the district court’s

ruling on revocation of Mr. Hooks’s supervised release and modification of his

sentence was “unassailable on appeal.” See Anders, 386 U.S. at 744. In support,

counsel pointed to Mr. Hooks’s admission to four of the violations and the

government’s provision of sufficient evidence to support a finding he violated the

remaining conditions. Counsel also explained that after revocation, the district

court imposed a below-Guidelines-range sentence entitled to a rebuttable

presumption of reasonableness. 

Pursuant to Anders, this court gave Mr. Hooks an opportunity to respond to

his counsel’s Anders brief. See id. Mr. Hooks failed to file such a response. The

government filed a notice of its intention not to file an answer brief in this appeal.

II. Discussion

As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. In reviewing a sentence imposed after revocation

of supervised release, we review the district court’s factual findings for clear

error and its legal conclusions de novo. See United States v. Tsosie, 376 F.3d

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1

 The 18 U.S.C. § 3553(a) sentencing factors include:

The nature and circumstances of the offense, the history and

characteristics of the defendant; the need for the sentence imposed to

afford adequate deterrence, protect the public, and provide the

defendant with needed educational or vocational training, medical

care or other correctional treatment in the most effective manner;

pertinent guidelines; pertinent policy statements; the need to avoid

unwanted sentence disparities; and the need to provide restitution.

Cordova, 461 F.3d at 1188-89 (quoting Contreras-Martinez, 409 F.3d at 1242

n.3) (emphasis added).

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1210, 1217-18 (10th Cir. 2004). We will not reverse a sentence following

revocation of supervised release if the record establishes the sentence is

“reasoned and reasonable.” United States v. Contreras-Martinez, 409 F.3d 1236,

1241 (10th Cir. 2005) (quotation marks and citation omitted).

Under the Federal Rules of Criminal Procedure and 18 U.S.C. § 3583,

“when a person violates the condition of his or her supervised release, the district

court may revoke the term of supervised release and impose prison time.” United

States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004); see also 18 U.S.C.

§ 3583(e)(3); Fed. R. Crim. P. 32.1(b). In imposing a sentence following

revocation of supervised release, the district court is required to consider both the

Guidelines Chapter7 policy statements as well as factors provided in 18 U.S.C.

§ 3553(a).1

 See United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). 

The Chapter 7 policy statements apply to violations of probation and supervised

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release and include advisory guideline ranges for sentences following revocation

of supervised release. See generally U.S.S.G. Ch. 7 and §§ 7B1.3 and 7B1.4. 

Under Chapter 7 of the Guidelines, revocation of supervised release is considered

appropriate for a defendant who violates the conditions of his supervision. See

U.S.S.G. § 7B1.3(a)(1) and (2). We have said that in revocation proceedings,

“[t]he very language of [18 U.S.C. § 3553] instructs the sentencing court to

consider the defendant’s ‘history and characteristics.’” United States v. Hahn,

551 F.3d 977, 985 (10th Cir. 2008) (quoting 18 U.S.C. § 3553(a)(1)), cert. denied,

129 S. Ct. 1687 (2009). However, “[t]he sentencing court ... 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

factors that Congress has instructed it to consider before issuing a sentence.” 

Cordova, 461 F.3d at 1189 (quotation marks and citation omitted). Instead, the

district court must “state in open court the reasons for its imposition of the

particular sentence,” 18 U.S.C. § 3553(c), and satisfy us that it “has considered

the parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

In this case, the record establishes Mr. Hooks admitted to violating at least

four of the conditions of his supervised release and the government provided

sufficient evidence to support the other alleged violations, resulting in multiple

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violations. In addition, the district court provided its reasons for revoking Mr.

Hooks’s supervised release, and we are satisfied it considered the parties’

arguments, the applicable advisory Guidelines, and the § 3553(a) sentencing

factors, including Mr. Hooks’s history and characteristics, when it considered his

history of non-compliance with the terms of his supervised release and the

seriousness of his violations. Under the circumstances presented, we conclude the

district court’s revocation of Mr. Hooks’s three-year term of supervised release

and imposition of a twenty-four-month term of imprisonment and another threeyear term of supervised release were both “reasoned and reasonable,” especially

in light of the fact Mr. Hooks has not offered any additional nonfrivolous reason

warranting a lower sentence. 

III. Conclusion

For these reasons, no meritorious appellate issue exists. Accordingly, we

GRANT counsel’s motion to withdraw and DISMISS Mr. Hooks’s appeal. 

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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