United States v. Brian George , 672 F. App'x 602 ( 2017 )

NONPRECEDENTIAL DISPOSITION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 January 11, 2017
Decided January 12, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1486
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, South Bend Division.
v.
No. 3:05CR100-001
BRIAN RAMON GEORGE,
Defendant-Appellant. Jon E. DeGuilio,
Judge.
ORDER
Brian George was convicted in 2007 of possessing a firearm as a felon, 18 U.S.C. §
922(g)(1), and was sentenced to 57 months’ imprisonment and two years’ supervised
release. He completed that initial prison term in July 2010, but twice the district court has
sent George back to prison after he violated conditions of his supervised release. The
first time, in 2011, the court reimprisoned George for 9 months to be followed by another
year of supervised release. Then in October 2013—a week before the new term of
supervised release would have expired—George was arrested by Indiana authorities for
possessing and selling cocaine. His probation officer immediately petitioned for an order
revoking George’s supervised release, but that petition was held in abeyance until after
No. 16-1486 Page 2
he was found guilty in state court. In March 2016 the district court revoked the term of
supervised release and reimprisoned George for 24 months. He filed a notice of appeal
but his newly appointed lawyer asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967).
A defendant facing revocation of supervised release does not have a
constitutional right to counsel unless he challenges the appropriateness of the revocation
or asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S.
778, 790–91 (1973); United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). George
did neither, so Anders does not govern our review of counsel’s motion to withdraw,
though we follow that decision’s safeguards to ensure consideration of potential issues.
See Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987); United States v. Brown, 823 F.3d 392,
394 (7th Cir. 2016). George opposes counsel’s motion to withdraw. See CIR. R. 51(b).
Because counsel’s brief appears to be thorough and addresses issues that an appeal of
this kind might be expected to involve, we limit our review to the subjects that counsel
discusses, along with the contentions in George’s response. See United States v. Bey, 748
F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether George could challenge the revocation, which
principally rests on a finding that he violated his conditions of release by committing the
state drug crimes. George admitted those crimes during the revocation proceeding, but
in his Rule 51(b) response he asserts that his former counsel coerced him to admit the
state charges. This contention is belied by George’s colloquy with the district judge, who
ensured that he understood the proceedings, the alleged violations, and the possible
penalties. See FED. R. CRIM. P. 32.1; United States v. LeBlanc, 175 F.3d 511, 515–17 (7th Cir.
1999). Moreover, George had been found guilty of the state crimes after a bench trial, so
his further acknowledgment of guilt in federal court was academic. See United States v.
Huusko, 275 F.3d 600, 602–03 (7th Cir. 2001) (noting that a district court, in ruling on
petition to revoke supervised release, may rely on a state conviction as sufficient proof
that the defendant violated conditions of release by committing a new crime). And since
the state crimes involved possession of a controlled substance, revocation was
mandatory. 18 U.S.C. § 3583(g)(1); United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014).
Thus an appellate claim challenging the revocation would be frivolous.
Counsel next questions whether George could challenge the calculation of his
reimprisonment range. The district court acknowledged that 24 months was the longest
period of reimprisonment George could receive, see 18 U.S.C. §§ 3559(a)(3), 3583(e)(3),
even though the Chapter 7 policy statements called for a range of 24 to 30 months based
No. 16-1486 Page 3
on George’s criminal history category of IV and Grade A violations of his conditions of
supervised release. See U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a). Appellate counsel cannot find
any fault with the calculated range, nor can we.
Last, counsel rejects as frivolous a contention that the term of reimprisonment is
plainly unreasonable. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007) (noting
that additional imprisonment imposed for violating conditions of supervised release will
be upheld unless plainly unreasonable). In evaluating the statutory factors, see 18 U.S.C.
§§ 3583(e), 3553(a), the district court noted that George had an extensive criminal history
and already had been reimprisoned for violating the conditions of his supervised
release. The court acknowledged that George’s new crimes had occurred shortly before
his supervised release was set to expire, that he was remorseful, and that he had
attended college classes and tried to obtain employment while on supervised release.
The court also took into account that George faced up to 50 years’ imprisonment on the
state charges, but still the court concluded that a term of 24 months to run consecutively
to the state sentence was necessary to deter George. We would not find this term to be
plainly unreasonable.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.