United States v. Bernard Mosley , 500 F. App'x 539 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 February 14, 2013
Decided February 14, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-3033
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v.
No. 3:10-CR-30086-WDS-001
BERNARD MOSLEY,
Defendant-Appellant. William D. Stiehl,
Judge.
ORDER
Bernard Mosley tested positive for marijuana, violating the conditions of his
supervised release, and the district court imposed 12 months’ reimprisonment. Mosley
filed a notice of appeal, but his appointed lawyer now seeks to withdraw because he
believes the appeal would be frivolous. See Anders v. California, 386 U.S. 738 (1967). Mosley
opposes his attorney’s motion. See CIR. R. 51(b). We confine our review to the potential
issues identified in counsel’s facially adequate brief and Mosley’s response. See United
States v. Aslan, 644 F.3d 526, 531 (7th Cir. 2011); United States v. Schuh, 289 F.3d 968, 973–74
(7th Cir. 2002).
No. 12-3033 Page 2
Six months after Mosley served a year-long prison sentence for possessing cocaine,
see 21 U.S.C. § 844(a), he tested positive for marijuana while on supervised release. He
agreed to a modification of the terms of his release to include home detention, but after his
eighth curfew violation the government petitioned the district court to revoke his
supervised release. Mosley admitted to those violations and others: marijuana possession,
twice driving with a suspended license, failure to report to his probation officer, and serial
failures to undergo drug testing. The district court revoked Mosley’s supervised release
and imposed the maximum 12 months permitted for his underlying offense, a class E
felony because of his prior drug convictions. See 18 U.S.C. §§ 3583(e)(3), 3559(a)(5); 21
U.S.C. § 844(a).
Mosley’s attorney relays that his client wishes to challenge only his term of
reimprisonment on appeal, and Mosley’s response does not suggest otherwise. Counsel
was thus not obliged to explore the validity of the revocation itself. See United States v.
Wheaton, 610 F.3d 389, 390 (7th Cir. 2010); United States v. Knox, 287 F.3d 667, 671 (7th Cir.
2002).
Counsel does explore whether Mosley could argue that the time he spent detained
at home should be counted with his reimprisonment term against the statutory cap of 18
U.S.C. § 3583(e)(3). Some courts interpreted a prior version of § 3583(e)(3) to prohibit
multiple impositions of reimprisonment, including home detention, beyond the limit set
forth in that provision for the underlying offense (one year for Mosley as a class E felon).
Compare, e.g., United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004), with United States v.
Hager, 288 F.3d 136, 137–38 (4th Cir. 2002). But the current version of the statute (which
applies to Mosley’s 2010 offense) applies the cap separately, as counsel notes, and does not
aggregate all terms of reimprisonment. United States v. Deutsch, 403 F.3d 915, 917 (7th Cir.
2005); United States v. Hampton, 633 F.3d 334, 338 (5th Cir. 2011); United States v. Knight, 580
F.3d 933. 937–38 (9th Cir. 2009) (collecting cases). Thus, even assuming that home detention
qualifies as “imprisonment” for purposes of § 3583(e)(3)—an uncertain proposition,
see United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999)—any previous split among the
circuits has been resolved by statute, and it would be frivolous for Mosley to argue that his
home detention should shorten his term of imprisonment.
Counsel also considers whether Mosley could argue that his term of 12 months is
plainly unreasonable. But the district court adequately considered the applicable guideline
policy statements, see U.S.S.G. § 7B1.4(a), and sentencing factors listed in 18 U.S.C. §
3553(a), in particular emphasizing the circumstances of his violations, noting that Mosley
had proved incapable of fully cooperating with his probation officer. Reviewing this
explanation, we would not find the term of reimprisonment plainly unreasonable.
No. 12-3033 Page 3
See United States v. Berry, 583 F.3d 1032, 1034 (7th Cir. 2009); United States v. Kizeart, 505 F.3d
672, 674 (7th Cir. 2007).
Mosley appears to propose arguing that he was punished twice for the same drug
violation (once by the curfew, again by the reimprisonment), in violation of the Double
Jeopardy Clause of the Fifth Amendment. But jeopardy does not attach to modifications or
revocations of supervised release. United States v. Sines, 303 F.3d 793, 800–01 (7th Cir. 2002);
United States v. Vargas, 564 F.3d 618, 624 (2d Cir. 2009); United States v. Dees, 467 F.3d 847,
853 (3d Cir. 2006).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.