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A Colorado district court revoked Marino Scott’s supervised release and sentenced him to prison. Scott appealed. His appellate counsel moved to withdraw and filed a brief under Anders v. California, asserting this appeal was frivolous. After examining the record, the 10th Circuit Court of Appeals agreed, granted the motion to withdraw and dismissed this appeal.
Scott pleaded guilty to two counts of possession of a firearm and ammunition by a convicted felon. His sentence included a five-year term of supervised release. About two years into that term, his probation officer petitioned for a warrant, alleging Scott had violated the conditions of his supervised release by possessing more than two pounds of marijuana at his home in Colorado.
According to the opinion, Scott admitted the violation. The district court determined the U.S. Sentencing Commission’s policy statements suggested a range of 21 to 27 months’ imprisonment. The probation department and the government recommended a sentence of 24 months, while Scott asked for another term of supervised release. The district court imposed 21 months of imprisonment with no additional supervised release.
Scott appealed. After his counsel filed an Anders brief and moved to withdraw, the 10th Circuit invited Scott himself to respond. According to the opinion, he didn’t do so.
Scott’s counsel identified three arguments he wished to pursue on appeal.
First, Scott believed the district court incorrectly calculated his criminal history category, an error that would have inflated the suggested sentencing range. In Scott’s view, the district court’s calculation included two prior convictions that were too old to count. According to the 10th Circuit, that view is incorrect. To calculate a criminal history category, courts include any “prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense,” the court explained citing sentencing guidelines. Scott received sentences of more than 13 months for the two convictions he thought were too old in 2004 and 2008 that were each within 15 years of his committing the offenses in 2017. The district court correctly included both prior sentences in the criminal history calculation, the opinion noted.
Second, Scott believed his possession of marijuana didn’t warrant revocation because Colorado allows marijuana possession. But even though possessing smaller amounts of marijuana is legal under Colorado law, possessing two pounds isn’t. In any event, marijuana possession remains illegal under federal law, the opinion added.
Third, Scott faulted the district court for imposing a prison term rather than another term of supervised release. However, the district court had to revoke supervised release and impose a prison term because Scott admitted to possessing a controlled substance, the opinion found. And because the sentence falls within the suggested range, the 10th Circuit presumed it was reasonable, the opinion noted, citing the decision United States v. McBride.
After independently examining the record, the 10th Circuit didn’t see a way for Scott to overcome that presumption.
The 10th Circuit granted the counsel’s motion to withdraw and dismissed this appeal.