United States v. Ivan Johnson , 567 F. App'x 456 ( 2014 )

NONPRECEDENTIAL DISPOSITION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 June 27, 2014
Decided June 27, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-1023
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 99-CR-30065-MJR
IVAN T. JOHNSON, Michael J. Reagan,
Defendant-Appellant. Judge.
ORDER
Ivan Johnson began serving a 4-year term of supervision in 2013 after completing
a prison term for possessing crack cocaine with intent to distribute. 21 U.S.C. § 841(a)(1);
United States v. Johnson, 22 F. App’x 640, 640 (7th Cir. 2001). Later that same year he was
arrested by Illinois police for aggravated domestic battery and drug possession. After
Johnson admitted that the government could prove he had violated the conditions of
his supervised release by committing those crimes, the district court revoked his
supervision and reimprisoned him for 30 months. Johnson has filed a notice of appeal
challenging the revocation, but his appointed lawyer contends that the appeal is
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
We invited Johnson to comment on counsel’s motion, see CIR. R. 51(b), but he did not
No. 14-1023 Page 2
respond. Counsel’s brief explains the nature of the case and addresses the issues that
an appeal of this kind might be expected to involve. Because the analysis in the brief
appears to be thorough, we limit our review to the subjects that counsel has discussed.
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 informs us that Johnson wishes to withdraw his admissions, and so
the lawyer appropriately addresses whether Johnson could challenge his admissions.
See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010). But, as counsel explains,
the judge conducted a lengthy colloquy with Johnson, told him the consequences of
admitting that the government could prove his violations (including that he was
waiving his right to present evidence and witnesses at a hearing), and ensured that no
one had induced his admissions. We agree with counsel that, under these
circumstances, it would be frivolous to challenge Johnson’s admissions as not knowing
and voluntary. See FED. R. CRIM. P. 32.1(b)(2); United States v. LeBlanc, 175 F.3d 511, 515
(7th Cir. 1999).
Counsel next examines the district court’s finding that Johnson’s most serious
conduct was a “Grade A” violation and concludes that disputing this finding would be
frivolous. Johnson was arrested for the felony of aggravated domestic battery, 720 ILCS
5/12-3.3(a-5), and he pleaded guilty to a reduced misdemeanor charge of domestic
battery, 720 ILCS 5/12-3.2(a)(1). Johnson admitted that the government could prove by a
preponderance of the evidence that he had committed the more serious crime, and the
government introduced a video of the victim’s interview with police, in which she
described Johnson choking her and dragging her by her hair. As counsel notes, choking
another person during a domestic battery is an aggravated domestic battery punishable
by 3 to 7 years in prison. 720 ILCS 5/12-3.3(b). Because conduct constituting a crime of
violence punishable by more than a year in prison is a Grade A violation, see U.S.S.G.
§ 7B1.1(a)(1); De Leon Castellanos v. Holder, 652 F.3d 762, 764 (7th Cir. 2011), the court
correctly calculated a guidelines range of 33 to 41 months, see U.S.S.G. § 7B1.4(a).
Counsel also considers whether Johnson could challenge his below-guidelines
term of 30 months’ reimprisonment as plainly unreasonable. We agree with counsel that
any such challenge would be frivolous. After considering Johnson’s acceptance of
responsibility, the district judge reasonably applied the relevant § 3553(a) factors in
deciding that 30 months in prison was necessary to deter future crimes and reflect the
seriousness of the violations. See 18 U.S.C. § 3553(a)(1), (a)(2)(B); United States v. Clay,
No. 14-1023 Page 3
No. 13–3510, 2014 WL 2214212, at *3 (7th Cir. May 29, 2014); United States v. Neal, 512
F.3d 427, 438–39 (7th Cir. 2008).
Finally counsel informs us that Johnson wishes to pursue a claim of ineffective
assistance against him. But, as counsel observes, we would not expect him to serve as
Johnson’s appellate lawyer while challenging his own performance in the district court.
See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). Any potential claim of
ineffective assistance of counsel is best reserved for collateral review. See Massaro v.
United States, 538 U.S. 500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58
(7th Cir. 2005).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.