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

NONPRECEDENTIAL DISPOSITION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.