United States v. Donnie R. Purifoy , 672 F. App'x 600 ( 2017 )


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  •                         NONPRECEDENTIAL DISPOSITION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 January 11, 2017
    Decided January 12, 2017
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    ANN CLAIRE WILLIAMS, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 16-1058
    UNITED STATES OF AMERICA,                       Appeal from the United States
    Plaintiff-Appellee,                        District Court for the Northern District
    of Illinois, Western Division.
    v.
    No. 01 CR 50010
    DONNIE R. PURIFOY,
    Defendant-Appellant.                        Philip G. Reinhard,
    Judge.
    ORDER
    Donnie Purifoy pleaded guilty in 2001 to distributing crack cocaine, see 
    21 U.S.C. § 841
    (a)(1), and was sentenced to 141 months’ imprisonment to be followed by 5 years’
    supervised release. In 2013, while on supervised release for that crime, Purifoy again
    was caught distributing crack. He pleaded guilty and in December 2015 was sentenced
    to 30 months in prison. Based on this new conviction, the district court revoked
    Purifoy’s supervised release and ordered him to serve an additional 37 months in
    prison, all but 7 months to run consecutively to the new 30-month sentence. Purifoy has
    filed a notice of appeal from the order revoking his supervised release (as part of a plea
    agreement he waived the right to appeal the new conviction and sentence). But
    No. 16-1058                                                                          Page 2
    Purifoy’s appointed attorney asserts that the appeal is frivolous and seeks to withdraw
    under Anders v. California, 
    386 U.S. 738
     (1967).
    A defendant facing revocation of supervised release does not have a
    constitutional right to counsel unless he challenges the appropriateness of revocation or
    asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 
    411 U.S. 778
    , 790–91 (1973); United States v. Boultinghouse, 
    784 F.3d 1163
    , 1171 (7th Cir. 2015);
    United States v. Eskridge, 
    445 F.3d 930
    , 932–33 (7th Cir. 2006). Purifoy did not do
    either—in fact, by pleading guilty to the 2013 drug offense, he admitted committing a
    new crime in violation of conditions of his supervised release. Thus, Anders does not
    govern our review of counsel’s motion to withdraw, though we follow its safeguards to
    ensure consideration of potential issues. See Pennsylvania v. Finley, 
    481 U.S. 551
    , 554–55
    (1987); United States v. Brown, 
    823 F.3d 392
    , 394 (7th Cir. 2016); United States v. Wheeler,
    
    814 F.3d 856
    , 857 (7th Cir. 2016). We invited Purifoy to comment on counsel’s motion,
    but he has not responded. See CIR. R. 51(b). Counsel has submitted a brief that explains
    the nature of the case and addresses the potential issues that an appeal of this kind
    might be expected to involve. Because the analysis in that brief appears to be thorough,
    we focus our review on the subjects that counsel discusses. See United States v.
    Bey, 
    748 F.3d 774
    , 776 (7th Cir. 2014); United States v. Wagner, 
    103 F.3d 551
    , 553 (7th Cir.
    1996).
    Counsel first evaluates whether Purifoy could argue that the district court, in
    calculating his reimprisonment range under the sentencing guidelines, misstated his
    criminal history category. Under the version of the guidelines in effect when Purifoy
    was sentenced on his 2001 conviction, his criminal history category was IV. But as a
    result of postsentencing amendments to the guidelines, his criminal history category
    had dropped to III by the time he was sentenced for the 2013 drug offense. The lawyer
    contemplated arguing that the lower criminal history category should have applied in
    the revocation proceeding, thus lowering Purifoy’s reimprisonment range. Counsel
    correctly recognizes, though, that this potential argument would be frivolous because at
    a revocation hearing the court uses the criminal history category applicable when the
    defendant was sentenced for the underlying offense, see U.S.S.G. § 7B1.4; United States v.
    McClanahan, 
    136 F.3d 1146
    , 1149–50 (7th Cir. 1998), so his criminal history category
    remained at IV.
    Counsel next questions whether Purifoy could argue that the district court
    should have lowered the classification of his 2001 drug conviction from a Class A felony
    to a Class B felony, see U.S.S.G. § 7B1.1, based on changes to the sentencing guidelines
    No. 16-1058                                                                            Page 3
    after the Fair Sentencing Act of 2010. See Pub. L. No. 111-220, 
    124 Stat. 2372
    . But this
    potential claim likewise would be frivolous. Sanctions imposed on revocation of
    supervised release are punishment for the underlying crime, see Johnson v. United States,
    
    529 U.S. 694
    , 700–01 (2000), and so the law in effect at the time of that crime applies.
    Purifoy’s conviction in 2001 involved 65 grams of crack, making it a Class A felony.
    
    21 U.S.C. § 841
    (b)(1)(A)(iii) (2000); 
    18 U.S.C. § 3559
    (a)(1) (2000). The Fair Sentencing Act
    is not retroactive, see United States v. Robinson, 
    697 F.3d 443
    , 444–45 (7th Cir. 2012), so it
    cannot help Purifoy.
    Finally, counsel considers whether Purifoy could argue that the district court
    should have run his 37-month term of reimprisonment fully concurrently with his
    sentence for the new drug conviction. But this argument also would be frivolous, as that
    decision is ultimately left to the discretion of the sentencing judge, and the policy
    statements from the Sentencing Commission actually favor consecutive sentences.
    See U.S.S.G. § 7B1.3(f); United States v. Taylor, 
    628 F.3d 420
    , 424 (7th Cir. 2010).
    Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.