Opinion
23-2931
05-29-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTOPHER J. ANDERSON, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted May 28, 2024
Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-CR-30178-SMY-1 Staci M. Yandle, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge JOSHUA P. KOLAR, Circuit Judge
ORDER
Christopher Anderson appeals the revocation of his supervised release and the resulting sentence, but his appointed attorney asserts that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Although a defendant does not have an unqualified constitutional right to counsel in revocation proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973), it is our practice to apply the safeguards of Anders in this context, see United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Counsel's brief explains the nature of the case and addresses issues that an appeal of this kind would typically involve. Because counsel's analysis appears thorough, and Anderson did not respond to the motion, see CIR. R. 51(b), we limit our review to the subjects that counsel discusses, see United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
In November 2012, Anderson pleaded guilty to conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii), and possession with intent to distribute 50 grams or more of methamphetamine, id. §§ 841(a)(1), 841(b)(1)(A)(viii). He was sentenced to 108 months in prison, and in November 2019, he began a 5-year term of supervised release.
Within a year, Anderson violated multiple conditions of supervision, including the requirement that he abide by all federal, state, and local laws. In December 2020, his probation officer petitioned the district court to revoke Anderson's supervised release, and an amended petition in September 2021 charged more violations. The most serious violations were the offenses of drug possession (multiple times) and aggravated fleeing of a police officer. After a final revocation hearing in January 2022, the court revoked Anderson's supervised release and sentenced him to 8 months' imprisonment followed by a new 5-year term of supervised release.
Anderson was released from prison in September 2022 and began his supervised release. Less than a year later, in August 2023, Anderson was again charged with violating multiple conditions of supervision by, among other things, committing criminal damage to property, violating a protective order, and unlawfully possessing a controlled substance. The probation officer petitioned for the court to revoke Anderson's supervised release once again.
At the final revocation hearing, Anderson, who was represented by counsel, admitted that the government could prove all charged violations by a preponderance of the evidence, and so the district court revoked his supervised release (which was mandatory as a result of the drug offenses, see 18 U.S.C. § 3583(g)(1)). As to the sentencing options, the district court determined that Anderson's criminal history score was III when his term of supervised release was imposed. See U.S.S.G. § 7B1.4 cmt. n.1. The most serious violation, possession of methamphetamine, was classified as Grade B. See id. § 7B1.1(b). The policy statements in Chapter 7 of the Sentencing Guidelines recommended a term of 8 to 14 months in prison, see id. § 7B1.4(a), well within the statutory maximum, see 18 U.S.C. § 3583(e)(3). In determining Anderson's sentence, the court discussed several factors, including the seriousness of the violations-particularly threats against women in his family-Anderson's past violations of supervised release, and (as a mitigating factor) his drug addictions. Based on these factors, the court sentenced Anderson to 36 months' imprisonment and 5 years' supervised release.
Counsel first reports that Anderson wants to withdraw his admissions and, therefore, challenge the decision to revoke his supervised release. United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010) (holding that defendant who challenges admissions that undergird revocation must also challenge the outcome). We agree with counsel that any such challenge would be frivolous. Because Anderson did not attempt to withdraw his admissions in the district court, we would review for plain error. United States v. Nelson, 931 F.3d 588, 590-91 (7th Cir. 2019). And no error occurred here. The transcript of the hearing reflects that the district court complied with Rule 32.1(b)(2) of the Federal Rules of Criminal Procedure: Anderson confirmed that he understood the alleged violations and possible prison sentence and was satisfied with his legal representation before he voluntarily waived his right to contest the allegations and admit that his conduct violated the conditions of his supervision. See United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014). Based on Anderson's admissions, the court properly revoked his term of supervised release. See 18 U.S.C. § 3583(e)(3), (g)(1).
Counsel next considers whether Anderson could raise any non-frivolous procedural challenges to his sentence. First, as counsel correctly concludes, there are no errors in the calculation of Anderson's sentencing range. Anderson admitted the Grade B violation of possessing methamphetamine, and the district court properly identified his criminal history category as III, yielding a range of 8 to 14 months' imprisonment under the policy statements. U.S.S.G. § 7B1.4(a). And Anderson's sentence of 36 months' imprisonment does not exceed the statutory maximum.See 18 U.S.C. § 3583(e)(3). Counsel further explains that five years' supervised release does not exceed the limit imposed by § 3583(h) in light of the maximum period of supervision authorized for offenses under § 841(b)(1)(A). See U.S.S.G. § 7B1.3(g)(2).
The district court stated the statutory maximum as 52 months, and counsel does not question that. Under 18 U.S.C. § 3583(e)(3) (now and in 2011 when Anderson committed the underlying offenses), 60 months is the maximum prison sentence for a supervised-release revocation when the underlying offense is a Class A felony. The district court credited the time Anderson served for his previous revocation (8 months) to arrive at a maximum of 52 months. But this reduction is not required. See id. § 3583(e)(3) (setting maximum for "any such" revocation); United States v. Perry, 743 F.3d 238, 242 (7th Cir. 2014) (holding that "prior time served for violations of supervised release is not credited towards and so does not limit the statutory maximum that a court may impose for subsequent violations of supervised release pursuant to § 3583(e)(3)"). Of course, setting the maximum sentence too low could not have prejudiced Anderson, and so the mistake does not create a nonfrivolous appellate argument. But our decision need not reproduce the inaccuracy.
We also agree with counsel that it would be frivolous to argue that any other procedural error occurred. The court confirmed that Anderson received proper notice, gave him the opportunity to appear and present evidence, and considered his mitigating arguments and allocution. See FED. R. CRIM. P. 32.1(b)(2).
Finally, counsel correctly concludes that it would be futile to argue that Anderson's sentence is substantively unreasonable. Although his 36-month term of imprisonment is above the advisory range, a district court has substantial flexibility in imposing a revocation sentence, and we will not vacate the sentence unless it is "plainly unreasonable." United States v. Dawson, 980 F.3d 1156, 1165-66 (7th Cir. 2020) (quoting United States v. Durham, 967 F.3d 575, 580 (7th Cir. 2020)). Here, the court discussed the applicable factors under § 3553(a). It specifically considered Anderson's history of substance abuse, his past violations of supervision, and the danger he posed to the community, especially given his violent conduct toward women. This explanation satisfied the court's duty to justify an above-guidelines sentence. See Durham, 967 F.3d at 580 (affirming sentence more than double the high end of the advisory range because it was consistent with the district court's "assessment of the gravity of [the defendant's] conduct, the need to protect the public, and the judge's determination that a serious sentence was necessary to deter [the defendant] from future violations").
Therefore, we GRANT counsel's motion to withdraw and DISMISS the appeal.