United States v. Ingram, James R. , 208 F. App'x 453 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2006
Decided November 2, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2196
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 90-CR-30014
JAMES R. INGRAM, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
James Ingram was convicted in 1990 for possessing a firearm after a felony
conviction. See 18 U.S.C. § 922(g)(1) (1998). He was sentenced as an Armed Career
Criminal to 15 years’ imprisonment and 60 months’ supervised release with the
condition that he not commit any local, state, or federal crime. See id. §§ 924(e)(1),
3583(b) (1988). Ingram’s term of supervision commenced in April 2003, and in
March 2006 his probation officer petitioned for the revocation of his supervised
release based on allegations that he assaulted Rhonda Martinie and brandished a
handgun. After holding an evidentiary hearing, the district court revoked Ingram’s
supervised release and imposed a term of 60 months’ reimprisonment. Ingram filed
a notice of appeal, but his appointed counsel moves to withdraw on the basis that he
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). Ingram has not accepted our invitation to respond to counsel’s
submission, see Cir. R. 51(b), so our examination is confined to only those potential
No. 06-2196 Page 2
issues identified in counsel’s facially adequate brief, see United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997) (per curiam).
At Ingram’s revocation hearing, the government presented Martinie’s
testimony. She recounted that Ingram became angry with her, forced her down to
the floor, and struck her head repeatedly. After assaulting Martinie, Ingram
retrieved a gun from beneath his mattress, pointed it first at her, and then pointed
the gun into his own mouth and threatened to commit suicide. Ingram then
threatened to kill Martinie if she reported the incident to the police. Martinie
stated that she took the threat seriously, but nonetheless reported the incident to
the police and sought treatment at the local hospital for a black eye and concussion.
The government also presented the testimony of Sergeant Greenslate of the
Lincoln, Illinois police department, and ATF Special Agent Hobbes. Greenslate
testified that Martinie reported to him the details surrounding Ingram’s attack, and
informed him that Ingram kept a handgun hidden beneath a mattress in his
residence. Based on this information, Greenslate stated that he obtained a search
warrant for Ingram’s residence, a search of which revealed a handgun hidden under
Ingram’s mattress. Hobbes then testified and confirmed that the handgun found at
Ingram’s residence was manufactured in Brazil.
Based on this testimony, the district court determined that “there was an
abundance of evidence showing that Ingram had violated the terms of his
supervised release by committing aggravated battery and unlawfully possessing a
weapon,” and accordingly revoked his supervised release. The court then
determined that Ingram’s violations met the Grade A classification under the
Guidelines Policy Statements. See U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a). Combining
this classification with Ingram’s Criminal History Category of VI yielded a
Guidelines Policy Statement range of 51 to 60 months’ imprisonment. See id.
§ 7B1.4(a). The court declined to credit Ingram the time he spent on supervised
release before the revocation, and imposed a term of 60 months’ imprisonment with
no additional term of supervised release.
In his Anders submission counsel identifies five potential arguments that
Ingram could make on appeal, and correctly concludes that each would be frivolous.
First, counsel suggests that Ingram could argue that the revocation of supervised
release was invalid because the petition for revocation was filed by his probation
officer rather than a United States Attorney. But this argument would directly
contradict the statutory mandate that probation officers not only are permitted, but
in fact are required, to “immediately report any violation of the conditions of release
to the court.” 18 U.S.C. § 3603(8)(B) (2000); see also U.S.S.G. § 7B1.2(a) (“The
probation officer shall promptly report to the court any alleged Grade A or B
violation.” (emphasis added)); United States v. Davis, 151 F.3d 1304, 1307-08 (10th
No. 06-2196 Page 3
Cir. 1998). It thus would be frivolous to argue that the revocation of Ingram’s
supervised release is invalid simply because a probation officer petitioned for
revocation.
Counsel next examines whether Ingram could argue that the evidence was
insufficient to sustain the revocation of supervised release. A district court need
only find by a preponderance of the evidence that an individual violated a condition
of supervised release. See 18 U.S.C. § 3583(e)(3) (2000 & Supp. IV 2004); United
States v. Trotter, 270 F.3d 1150, 1153 (7th Cir. 2001). Under Illinois law, a person
commits aggravated battery when he “intentionally or knowingly” without legal
justification and by any means “causes great bodily harm” to an individual. See 720
Ill. Comp. Stat. 5/12-3, 5/12-4. Here the district court heard Martinie testify that
Ingram repeatedly struck her to the point that she suffered a black eye and
concussion. See People v. Morgan, 378 N.E.2d 1298, 1302 (Ill. App. Ct. 1978)
(holding that a concussion constitutes “great bodily harm” encompassed by
aggravated-battery statute). And Sergeant Greenslate testified that he located
Ingram’s firearm exactly where Martinie said it would be hidden. This evidence
easily shows by a preponderance that Ingram committed aggravated battery and
possessed a firearm after a felony conviction, and any contrary argument thus
would be frivolous.
The third potential argument counsel identifies is whether Ingram could
raise an ex post facto challenge to the district court’s imposition of the term of
reimprisonment. To prevail on an ex post facto claim, Ingram would have to show
that the new term of imprisonment exceeds what the law provided when he
committed the § 922(g) offense that led to his conviction in 1990. See Johnson v.
United States, 529 U.S. 694, 699 (2000). Ingram committed a class A felony in 1990,
see 18 U.S.C. §§ 924(e), 3559(a)(1) (1988), and federal law at that time authorized
district courts to revoke the supervised release of an individual convicted of a Class
A felony and “require the person to serve in prison all or part of the term of
supervised release without credit for time previously served on postrelease
supervision,” see id. § 3583(e)(3) (1988). Here, the district court did exactly that. It
declined to credit Ingram for any time he spent on supervised release and imposed a
term of reimprisonment that equaled the term of supervised release: 60 months.
Since Ingram’s term of reimprisonment is not longer than what the law allowed
when he committed his original offense, it would be frivolous to raise an
ex post facto claim on appeal. See Johnson, 529 U.S. at 699.
Counsel next contemplates whether Ingram could challenge the district
court’s determination that his crimes were Grade A violations when calculating the
Guidelines Policy Statement range. As pertinent here, a Grade A violation is “a
federal, state, or local offense punishable by a term of imprisonment exceeding one
year that . . . is a crime of violence, or . . . any other federal, state, or local offense
No. 06-2196 Page 4
punishable by a term of imprisonment exceeding twenty years.” See U.S.S.G.
§ 7B1.1(a)(1)(A)(i), (B). Counsel suggests Ingram could argue that, because the
district court did not specifically state that he violated 18 U.S.C. § 922(g), the court
in fact found that he violated the Illinois law prohibiting felons from possessing a
firearm, see 720 Ill. Comp. Stat. 5/24-1.1(a). Because a violation of the Illinois
provision is neither a “crime of violence” nor punishable by a maximum penalty
greater than 20 years, see id. 5/24-1.1(e), the district court would have erred by
deeming Ingram’s crime a Class A violation if the conduct violated only state law.
But counsel is correct to conclude that this argument would be frivolous. We could
reasonably infer that the court referred to § 922(g) when stating that Ingram
“unlawfully possessed a weapon” because Special Agent Hobbes testified that
Ingram’s handgun was manufactured in Brazil, and because § 922(g) encompasses
firearms placed in interstate commerce while the Illinois analog does not. Compare
18 U.S.C. § 922(g) (2000), with 720 Ill. Comp. Stat. 5/24-1.1(a). And since Ingram is
an Armed Career Criminal, a violation of § 922(g) carries a maximum penalty
greater than 20 years. See 18 U.S.C. § 924(e) (2000 & Supp. IV 2004). Counsel also
suggests that Ingram could challenge the district court’s finding that aggravated
battery is a Grade A violation, but likewise correctly concludes that the argument
would be frivolous because aggravated battery is a felony “crime of violence” that is
punishable by a term of imprisonment of more than one year. See 720 Ill. Comp.
Stat. 5/2-7, 5/12-4(e); see also United States v. Thigpen, 456 F.3d 766, 770 (7th Cir.
2006) (“[U]nder Illinois law, aggravated battery involves the use or threatened use
of force against another person and is punishable by imprisonment for more than a
year. This crime also meets the requirements for a crime of violence.” (citation
omitted)).
Finally, counsel suggests that Ingram could challenge his term of
reimprisonment on reasonableness grounds. When imposing a term of
reimprisonment for violating supervised release, a district court must consider the
applicable policy statements and the sentencing factors in 18 U.S.C. § 3553(a). See
United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005); United States v. Salinas,
365 F.3d 582, 588-89 (7th Cir. 2004). The district court did all of this at Ingram’s
revocation hearing. The court noted the range recommended by the policy
statements. It also discussed the severe physical harm and emotional and
psychological stress that Ingram inflicted upon Martinie, see 18 U.S.C. § 3553(a)(1),
(2)(A) (2000), and expressed its belief that the public needs to be protected from
Ingram and his violent tendencies, see id. § 3553(a)(2)(C) (2000). As counsel points
out, the district court did not state that punishment for Ingram’s criminal conduct
was the primary factor underlying the sentence, see United States v. Miqbel, 444
F.3d 1173, 1182 (9th Cir. 2006), and counsel is unable to identify any other factors
that would have compelled a shorter term of reimprisonment.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.