United States v. Kenneth Harris, Jr. , 669 F. App'x 807 ( 2016 )


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  •                         NONPRECEDENTIAL DISPOSITION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 October 27, 2016
    Decided October 28, 2016
    Before
    WILLIAM J. BAUER, Circuit Judge
    FRANK H. EASTERBROOK, Circuit Judge
    MICHAEL S. KANNE, Circuit Judge
    No. 16-1301
    UNITED STATES OF AMERICA,                          Appeal from the United States District
    Plaintiff-Appellee,                           Court for the Southern District of Illinois.
    v.                                          No. 4:15-CR-40041-SMY
    KENNETH D. HARRIS, JR.,                            Staci M. Yandle,
    Defendant-Appellant.                           Judge.
    ORDER
    Kenneth Harris pleaded guilty to escaping from a halfway house, 
    18 U.S.C. §§ 4082
    (a), 751(a), and was sentenced to 21 months’ imprisonment and 3 years’
    supervised release. Harris filed a notice of appeal, but his appointed counsel asserts that
    the appeal is frivolous and moves to withdraw under Anders v. California, 
    386 U.S. 738
    (1967). Harris opposes counsel’s motion. See CIR. R. 51(b). Counsel’s supporting brief
    explains the nature of the case and addresses issues that an appeal of this kind might be
    expected to involve, and because the analysis appears to be thorough, we limit our
    review to the subjects that counsel discusses plus the additional contentions in Harris’s
    response. See United States v. Bey, 
    748 F.3d 774
    , 776 (7th Cir. 2014).
    No. 16-1301                                                                            Page 2
    Harris was convicted in 2011 of conspiracy to manufacture methamphetamine,
    see 
    21 U.S.C. §§ 846
    , 841(a)(1), and was sentenced to 63 months’ imprisonment. Near the
    end of his prison term, he was transferred to the Centerstone Residential Reentry Center
    in Williamson County, Illinois, to serve the remainder of his sentence. Harris was
    permitted to leave Centerstone for authorized purposes, including employment, but on
    March 25, 2015, he left and did not return. Harris instead went to a hospital where he
    tested positive for opioids. He then stayed the night with his girlfriend, who called the
    police the next morning accusing Harris of physically assaulting and threatening to kill
    her. She declined to press charges, however, so Harris remained free but still did not
    return to Centerstone. Afterward he twice called his probation officer but did not turn
    himself in as instructed. Harris acknowledged his escape status to the probation officer
    but refused to surrender without assurances that his medications would be changed and
    that he would be transferred to a different facility. On April 1 federal marshals arrested
    him at his girlfriend’s residence.
    In her Anders submission counsel first tells us that Harris does not wish to
    challenge his guilty plea, and thus she appropriately omits discussion about the plea
    colloquy and the voluntariness of the plea. See FED R. CRIM. P. 11; 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).
    Counsel does question whether Harris might argue that his 21-month prison term
    is substantively unreasonable but rejects that potential claim as frivolous. We agree. The
    term is within the range of 15 to 21 months calculated by the district court and, thus, is
    presumptively reasonable. See Rita v. United States, 
    551 U.S. 338
    , 347 (2007); United States
    v. Womack, 
    732 F.3d 745
    , 747 (7th Cir. 2013). Counsel identifies nothing that would rebut
    that presumption, and though Harris asserts in his Rule 51(b) response that the district
    judge imposed a high-end sentence simply to appear “harsh in front of her audience,”
    that speculation has no support in the record.
    Counsel also considers whether Harris might argue that she rendered ineffective
    assistance, which Harris alleges in his Rule 51(b) response. Yet, neither counsel nor
    Harris has identified for us any performance that was arguably deficient, so on this
    record there is not even a potential claim of ineffective assistance. Regardless, any such
    claim is best reserved for collateral review where a record can be developed. See Massaro
    v. United States, 
    538 U.S. 500
    , 504–05 (2003); United States v. Berg, 
    714 F.3d 490
    , 499
    (7th Cir. 2013); United States v. Harris, 
    394 F.3d 543
    , 557–58 (7th Cir. 2005). That counsel
    also represented Harris at sentencing is another reason that any claim of ineffective
    No. 16-1301                                                                          Page 3
    assistance must be reserved for collateral review. See United States v. Rezin, 
    322 F.3d 443
    ,
    445 (7th Cir. 2003).
    In his Rule 51(b) response, Harris asserts two other potential claims for appeal.
    First he says that he never received a copy of the presentence report before the
    sentencing hearing, but he told the district court exactly the opposite when asked at
    sentencing if he had received a copy of the report and reviewed it with his lawyer.
    Second, Harris contends that the district court set his sentence at 21 months so that he
    would be eligible for drug treatment within the Bureau of Prisons. See Tapia v. United
    States, 
    564 U.S. 319
    , 332 (2011) (prohibiting “imposing or lengthening a prison term to
    promote an offender’s rehabilitation”). Yet here again Harris’s speculation about the
    court’s motives is not corroborated by the record. What the court actually did is
    recommend that the Bureau of Prisons screen Harris for drug and mental-health
    treatment, which is within the authority of a sentencing court. See 
    id. at 331
     (enabling
    sentencing court to recommend that inmate participate in treatment programs);
    United States v. Lucas, 
    670 F.3d 784
    , 794–95 (7th Cir. 2012) (same).
    Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.