United States v. Theodore Thurman ( 2021 )


Menu:
  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted November 8, 2021
    Decided November 9, 2021
    Before
    ILANA DIAMOND ROVNER, Circuit Judge
    MICHAEL Y. SCUDDER, Circuit Judge
    THOMAS L. KIRSCH II, Circuit Judge
    No. 20-3356
    UNITED STATES OF AMERICA,                         Appeal from the United States District
    Plaintiff-Appellee,                          Court for the Western District of
    Wisconsin.
    v.                                          No. 20-cr-50-wmc
    THEODORE THURMAN,                                 William M. Conley,
    Defendant-Appellant.                          Judge.
    ORDER
    Theodore Thurman pleaded guilty to one count of escape from custody after he
    absconded from a halfway house where he was serving a federal sentence. See 
    18 U.S.C. §§ 751
    (a), 4082(a). The district court sentenced him to a prison term of 24 months and no
    supervised release. Thurman appeals, but his appointed counsel asserts that the appeal
    is frivolous and moves to withdraw. See Anders v. California, 
    386 U.S. 738
    , 744 (1967).
    Counsel’s brief explains the nature of the case and addresses potential issues that an
    appeal of this kind would be expected to involve. Because her analysis appears
    No. 20-3356                                                                           Page 2
    thorough, and Thurman has not responded, 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).
    Thurman was sentenced in the Northern District of Illinois to 33 months’
    imprisonment and two years’ supervised release for unlawfully possessing a firearm
    and distributing marijuana. When he was serving part of that sentence at a halfway
    house in Janesville, Wisconsin, he left without permission one night and did not turn up
    for about four months. He would later explain that his infant daughter’s mother, who
    lived in Illinois with their daughter, had told him that she would kill herself. Fearing for
    his daughter’s safety, Thurman fled to Illinois to place her in the care of his mother. But
    he then traveled from Illinois to Arizona, where he later caught the attention of law
    enforcement for possessing a firearm while a passenger in a stolen car containing drugs
    and stolen identification and credit cards. The driver told local police that Thurman
    acted as protection while she sold drugs and that she gave Thurman the weapon. The
    authorities released Thurman without filing charges, and Thurman returned to Illinois,
    where he was later arrested and detained until a grand jury in the Western District of
    Wisconsin indicted him.
    At a hearing held by videoconference, Thurman pleaded guilty to a single-count
    indictment charging him with escape from federal custody under 
    18 U.S.C. §§ 751
    (a)
    and 4082(a). The district court proceeded immediately to sentencing. Thurman’s
    presentence investigation report set a range of 18 to 24 months’ imprisonment under the
    Sentencing Guidelines, based on a criminal history category of IV and a total offense
    level of 11. Thurman did not object to those calculations. After hearing argument, the
    court sentenced Thurman to 24 months in prison without additional supervised release,
    explaining that the sentence was necessary to hold him accountable, provide him the
    opportunity to participate in rehabilitative programs, and protect the community.
    Counsel informs us that she consulted with Thurman and confirms that he does
    not wish to withdraw his guilty plea, so counsel properly omits discussion of any
    arguments related to the plea’s validity. See United States v. Konczak, 
    683 F.3d 348
    , 349
    (7th Cir. 2012); United States v. Knox, 
    287 F.3d 667
    , 670–71 (7th Cir. 2002).
    With respect to the sentence, counsel first considers whether there might be a
    nonfrivolous challenge that the hearing via videoconference, as authorized by the
    CARES Act, Pub. L. No. 116-136, § 15002(b)(2)(A), 
    134 Stat. 281
    , 528–29, violated Rule 43
    of the Federal Rules of Criminal Procedure. But she explains that Thurman does not
    wish to raise the issue on appeal because he does not want to be sentenced in person: it
    would jeopardize his placement in prison programs, which could delay his release.
    No. 20-3356                                                                        Page 3
    Lawyers need not raise issues on appeal that would not be in their client’s interest.
    United States v. Caviedes-Zuniga, 
    948 F.3d 854
    , 855 (7th Cir. 2020).
    Counsel next considers whether Thurman could challenge the district court’s
    decision not to apply a downward adjustment to his offense level under the Sentencing
    Guidelines. Counsel believes that Thurman waived the issue by stating that he had no
    objections to the presentence report. Even if it were only forfeited, however, any
    challenge to the offense level would be frivolous under plain-error review. Under
    U.S.S.G. § 2P1.1(b)(2), the offense level can be decreased if the defendant returned
    voluntarily within 96 hours of escape, which Thurman did not do. Second, if the
    escaped-from facility is a halfway house, an offense-level decrease can be applied,
    provided the defendant did not commit a felony while out. Id. § 2P1.1(b)(3). Though
    Thurman was never charged, the court found it more likely than not that he committed
    a felony during his escape. See United States v. Holton, 
    873 F.3d 589
    , 591–92 (7th Cir.
    2017) (Judges may “consider at sentencing criminal conduct … even if the defendant
    was not convicted … ‘so long as that conduct has been proved by a preponderance of
    the evidence.’” (quoting United States v. Watts, 
    519 U.S. 148
    , 157 (1997))). The PSR
    detailed Thurman’s conduct while in Arizona, which included aiding in the distribution
    of marijuana and possessing a firearm.
    Finally, counsel rightly concludes that challenging the substantive
    reasonableness of Thurman’s sentence would be pointless. The within-guidelines prison
    term of 24 months is presumptively reasonable. See United States v. Clay, 
    943 F.3d 805
    ,
    809 (7th Cir. 2019). The presumption would hold here because the district court
    explained why the sentence was warranted under the sentencing factors in 
    18 U.S.C. § 3553
    (a). See United States v. Lockwood, 
    840 F.3d 896
    , 903 (7th Cir. 2016). It noted that
    Thurman offered some compelling mitigation arguments: he had a supportive family,
    had struggled with substance abuse since his father passed away, and had originally
    left the halfway house because he feared for his daughter’s safety. But the court found
    that Thurman had not seriously confronted his substance abuse. Further, ensuring his
    daughter’s welfare took a few days, but Thurman remained on the run for almost four
    months. And during that time, he exhibited the same criminal behavior that landed him
    in prison in the first place, demonstrating that he remained a risk to the community.
    Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
    

Document Info

Docket Number: 20-3356

Judges: Per Curiam

Filed Date: 11/9/2021

Precedential Status: Non-Precedential

Modified Date: 11/9/2021