United States v. Jonus Wheeler , 814 F.3d 856 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2785
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONUS L. WHEELER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:06-CR-30073-SMY — Staci M. Yandle, Judge.
____________________
SUBMITTED JANUARY 7, 2016 — DECIDED FEBRUARY 26, 2016
____________________
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
PER CURIAM. Appellant Jonus Wheeler pled guilty in 2006
to possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1),
and was sentenced to 108 months in prison followed by 36
months of supervised release. Ten months after he was re-
leased from prison and began serving the term of supervi-
sion, the government sought revocation, see 18 U.S.C.
§ 3583(e) and (g), alleging that Wheeler had tested positive
for (and thus possessed) marijuana four times, missed nine
2 No. 15-2785
drug-treatment sessions, and twice failed to submit a month-
ly supervision report. After Wheeler admitted the allega-
tions, the district court revoked his supervised release and
imposed 21 months of reimprisonment to be followed by
another 12 months of supervised release. Wheeler filed a no-
tice of appeal, but his appointed attorney asserts that the ap-
peal is frivolous and seeks to withdraw under Anders v. Cali-
fornia, 386 U.S. 738 (1967).
There is no constitutional right to counsel in a revocation
proceeding where, as here, the defendant admits violating
the conditions of his supervision and neither challenges the
appropriateness of revocation nor 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, 1171–72 (7th Cir. 2015); United States v. Eskridge,
445 F.3d 930, 932–33 (7th Cir. 2006). Thus the Anders safe-
guards do not govern our review of counsel’s motion to
withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554–55
(1987); Eskridge, 445 F.3d at 933. We may affirm “if we de-
termine that the appeal, though not frivolous, is also not
meritorious.” Eskridge, 445 F.3d at 933.
We invited Wheeler to comment on counsel’s motion, but
he has not responded. See Cir. R. 51(b). Counsel has submit-
ted a brief that explains the nature of the case and addresses
the potential issues that an appeal of this kind might be ex-
pected to involve. The analysis in the brief appears to be
thorough, so we focus our review on the subjects that coun-
sel 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).
No. 15-2785 3
Counsel first notes that Wheeler does not want to chal-
lenge the revocation of his supervision, and thus the lawyer
properly refrains from discussing whether Wheeler’s admis-
sions to the charged violations were knowing and voluntary.
See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010);
United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Counsel next discusses whether Wheeler could raise an
appellate claim about the calculation of his reimprisonment
range. Wheeler did not object to the district court’s applica-
tion of the Sentencing Guideline Chapter 7 policy state-
ments, so our review would be limited to plain error. See
United States v. Pitre, 504 F.3d 657, 661, 664 (7th Cir. 2007);
United States v. Harvey, 232 F.3d 585, 587 (7th Cir. 2000).
At Wheeler’s revocation hearing the district court said
that his reimprisonment range would be 21 to 27 months.
(Wheeler’s criminal history category is VI, and the court
found that his possession of marijuana constituted a Grade B
violation because he already had a conviction for a drug of-
fense, see 21 U.S.C. § 844(a); United States v. Trotter, 270 F.3d
1150, 1154 (7th Cir. 2001).) But the district court did not say
specifically that the reimprisonment range was subject to a
statutory maximum of 24 months given that the underlying
§ 922(g)(1) offense was a class C felony. See 18 U.S.C.
§§ 924(a)(2), 3559(a)(3), 3583(e)(3); U.S.S.G. §§ 7B1.1, 7B1.4(a),
(b)(3)(A). Counsel thus questions whether Wheeler could
argue that the district court was misinformed about the true
range when deciding on the appropriate term of reimpris-
onment.
But as appellate counsel points out, the prosecutor noted
that 24 months was the statutory maximum in recommend-
ing a term of that length. The probation officer also had
4 No. 15-2785
alerted the district court in writing that 24 months was the
maximum. The court said nothing suggesting a misunder-
standing about the statutory maximum, and the court even
referred to 18 U.S.C. § 3583, which defined that maximum,
when announcing the 21-month term. Thus, on this record
Wheeler could not make a meritorious claim that the district
court was misinformed about its options. See Pitre, 504 F.3d
at 663–64 (district court did not err when it did not explicitly
state reimprisonment range during revocation hearing).
Counsel also considers but rightly rejects an argument
that the new term of supervised release is unlawful or plain-
ly unreasonable. The 12-month term is less than the statuto-
ry maximum of 15 months (based on the 36 months of su-
pervised release authorized for Wheeler’s underlying con-
viction, less the 21 months of reimprisonment ordered on
revocation). See 18 U.S.C. § 3583(b)(2) & (h). The term im-
posed also is within the policy-statement range of up to 15
months. See U.S.S.G. § 7B1.3(g)(2). The district court ex-
plained that a new term of supervised release was justified
based on factors in § 3553(a), including Wheeler’s violations
during the initial period of supervised release, his significant
substance-abuse issues, and the need for supervision to as-
sist with his reintegration into society. The court also fully
explained the need for a special condition authorizing treat-
ment for drug and alcohol abuse, given Wheeler’s lengthy
history of using alcohol, cocaine, and marijuana. We would
not find the new term of supervised release to be plainly un-
reasonable. See United States v. Jones, 774 F.3d 399, 404–05
(7th Cir. 2014); United States v. Neal, 512 F.3d 427, 438
(7th Cir. 2008).
No. 15-2785 5
Counsel does not mention two standard conditions of
supervised release that we have criticized as vague. First, we
have said that language requiring Wheeler to notify his pro-
bation officer of any “change . . . in employment” leaves un-
clear whether this condition applies only to “changing em-
ployers or also includes changing from one position to an-
other for the same employer at the same workplace.” United
States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015). Second,
the condition prohibiting Wheeler from leaving the judicial
district without permission “improperly imposes strict liabil-
ity” because it lacks a scienter requirement. United States v.
Kappes, 782 F.3d 828, 849–50 (7th Cir. 2015). That being said,
we have no reason to believe that Wheeler wishes to chal-
lenge these conditions, as counsel has not identified them as
potential issues and Wheeler has not responded to the An-
ders brief. See United States v. Bryant, 754 F.3d 443, 447
(7th Cir. 2014). If Wheeler later perceives these conditions to
be problematic after he begins serving the term of super-
vised release, he will be free to seek modification under
18 U.S.C. § 3583(e)(2). United States v. Neal, 810 F.3d 512, 518
(7th Cir. 2016).
Counsel’s motion to withdraw is GRANTED, and the
appeal is DISMISSED.