Opinion
23-2930
05-23-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICKY GIBB, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted May 2, 2024
Appeal from the United States District Court for the Southern District of Illinois. 3:13-CR-30170-DWD David W. Dugan, Judge.
Before DIANE S. SYKES, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge JOSHUA P. KOLAR, Circuit Judge.
ORDER
Micky Gibb appeals the 12-month prison sentence imposed for the revocation of his term of supervised release. His attorney asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). We grant the motion and dismiss the appeal.
A defendant who appeals a revocation order does not have an unqualified constitutional right to counsel, so the Anders safeguards need not govern our review. Gagnon v. Scarpelli, 411 U.S. 778, 789-90 (1973). Even so, our practice is to apply them. 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 might be expected to involve. Gibb did not respond to counsel's motion. See Cir. R. 51(b). Because counsel's analysis appears thorough, we limit our review to subjects that she discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Soon after his release from a prison sentence for various drug and firearm offenses, see 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 1951, 924(c), 922(g)(1), Gibb violated the terms of his supervised release. His probation officer petitioned to revoke supervised release because Gibb had been arrested for disorderly conduct, admitted to using marijuana, failed to participate in a mental-health program, consumed alcohol while in a program for substance abuse, and failed to complete his monthly report forms. At the revocation hearing, Gibb admitted to committing these violations. The judge then sentenced him to a 12-month term of imprisonment-the lowest term recommended by the relevant policy statement under the Guidelines-and four years of supervised release.
Counsel first considers whether Gibb could challenge his admissions and correctly concludes that he cannot. Gibb did not seek to withdraw his admissions in the district court, so our review would be for plain error. United States v. Nelson, 931 F.3d 588, 590-91 (7th Cir. 2019). The judge confirmed with Gibb that he understood the alleged violations and possible penalties and had reviewed them with his attorney. Gibb then freely admitted that the government could prove by a preponderance of the evidence that he had committed the alleged violations in question. See Fed. R. Crim. P. 32.1; Nelson, 931 F.3d at 591.
Counsel next explores, and properly rejects, challenging the revocation of Gibb's supervised release. As the judge correctly concluded, revocation was mandatory because Gibb admitted to possessing marijuana, a controlled substance. See 18 U.S.C. § 3583(g)(1); United States v. Patlan, 31 F.4th 552, 557 (7th Cir. 2022).
Counsel also considers whether Gibb could challenge his prison sentence on procedural grounds but rightly concludes that doing so would be frivolous. The judge properly calculated a policy-statement range of 12 to 18 months in prison (based on Gibb's controlled substance possession amounting to a Grade B violation and his criminal history category of IV). See U.S.S.G. § 7B1.4(a). Gibb's 12-month sentence fell within that range and did not exceed the statutory maximum of 60 months. See 18 U.S.C. §§ 3559(a)(1), 3583(e)(3). The judge also acknowledged Gibb's arguments in mitigation but appropriately determined that his desire to be with his kids and get help outside of prison was outweighed by his lack of participation in his mental-health treatment program and his noncompliance in taking prescribed medications.
Gibb also could not, as counsel rightly notes, advance a non-frivolous procedural challenge to his new term of supervised release. His additional term of supervised release was correctly calculated at 48 months (60 months minus the 12-month term of imprisonment upon revocation). See 18 U.S.C. § 3583(h); U.S.S.G. § 7B1.3(g)(2).
Finally, counsel correctly concludes that it would be frivolous to challenge the substantive reasonableness of the sentence. Our review of a sentence after the revocation of supervised release is "highly deferential," and we presume that a sentence within the policy-statement range like Gibb's is reasonable. United States v. Yankey, 56 F.4th 554, 560 (7th Cir. 2023). Nothing in the record rebuts that presumption of reasonableness. Id. The judge additionally considered the sentencing factors in accordance with 18 U.S.C. § 3553(a), noting, for example, that Gibb's substance abuse called for just punishment, adequate deterrence, and needed medical care.
We therefore GRANT counsel's motion to withdraw and DISMISS the appeal.