United States v. Byron Blake ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2145
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BYRON BLAKE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:06-CR-30146-NJR-1 — Nancy J. Rosenstengel, Chief Judge.
____________________
SUBMITTED JANUARY 21, 2021 — DECIDED JANUARY 26, 2021
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Byron Blake is serving a sen-
tence of 420 months’ imprisonment for cocaine offenses. The
district court concluded that he is responsible for at least 13
kilograms of crack. Blake contended on appeal that this fig-
ure is too high. In affirming his sentence, we held that the
dispute was not material under the statutes and guidelines
then in force, because any amount over 1.5 kilos had the
2 No. 20-2145
same effect. United States v. Blake, No. 07-2704 (7th Cir. Aug.
8, 2008) (nonprecedential disposition). Five years later, the
court rejected Blake’s effort to set aside his sentence on col-
lateral review under 28 U.S.C. §2255. Blake v. United States,
723 F.3d 870 (7th Cir. 2013).
Blake was sentenced before the Fair Sentencing Act of
2010 took effect, and he therefore did not benefit from the
changes it made to the rules (both statutes and Sentencing
Guidelines) for sentencing persons convicted of crack-
cocaine offenses. Dorsey v. United States, 567 U.S. 260 (2012).
But §404 of the First Step Act of 2018 makes the 2010 Act ret-
roactively applicable to persons who would have been with-
in its scope had they been sentenced after its effective date.
Blake then asked the district court for a lower sentence. The
district judge concluded, however, that Blake, who has a his-
tory of violence, does not deserve a benefit from the 2018 Act
whether or not he is eligible for one. United States v. Blake,
2020 U.S. Dist. LEXIS 107708 (S.D. Ill. June 19, 2020).
We do not consider whether the district judge made a le-
gal error or abused her discretion, because a preliminary
procedural issue requires resolution. Blake’s lawyer wants to
withdraw, and Blake opposes that motion; he contends that
we should compel counsel to continue the representation.
This poses the question whether Blake has a right to the as-
sistance of counsel at public expense. If not, there is no ap-
parent ground for obliging a lawyer to carry on with an ap-
peal he deems frivolous.
In seeking leave to withdraw, defense counsel filed a
brief modeled on the procedure established by Anders v. Cali-
fornia, 386 U.S. 738 (1967). The brief explains why counsel
deems the appeal to be frivolous. But it does not rely on An-
No. 20-2145 3
ders, recognizing that Anders does not apply. The Supreme
Court devised the Anders procedure to reconcile competing
rules: on the one hand, a person sentenced to prison has a
constitutional right to the assistance of counsel on appeal
(and at public expense, if indigent); on the other hand, every
lawyer has an ethical obligation not to pursue frivolous liti-
gation. An “Anders brief” laying out the arguments pro and
con enables a court to decide whether the appeal really is
frivolous. If so, it concludes the appeal; if there is a non-
frivolous issue, however, the court requires the lawyer to
continue representing the defendant, because the ethical ob-
ligation to avoid frivolous litigation drops out.
Once the direct appeal is over, however, the Constitution
no longer requires the government to ensure that the de-
fendant has a lawyer. So there is no constitutional right to
counsel at public expense when asking the Supreme Court
for a writ of certiorari. See Ross v. MoffiB, 417 U.S. 600 (1974).
Nor is there a constitutional right to appointed counsel when
pursuing a collateral alack under §2255. See Lavin v. Red-
nour, 641 F.3d 830, 833–34 (7th Cir. 2011). Lavin observes that
courts may ask lawyers to represent prisoners, and many
lawyers do so willingly, but it holds that a prisoner does not
have a right to have a court compel a lawyer to represent him
on collateral review.
The statute authorizing many retroactive adjustments, 18
U.S.C. §3582(c)(2), is not part of the process of conviction or
direct appellate review, and a request for resentencing under
that section does not entail the sort of procedure that is ap-
propriate to an initial sentencing. See Dillon v. United States,
560 U.S. 817 (2010). We have accordingly held that the Con-
stitution does not entitle a prisoner seeking a lower sentence
4 No. 20-2145
to the appointment of counsel at public expense. See, e.g.,
United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (cit-
ing cases). United States v. Foster, 706 F.3d 887 (7th Cir. 2013),
adds that the Criminal Justice Act, 18 U.S.C. §3006A, also
does not entitle a defendant to appointed counsel at public
expense when seeking a lower sentence under §3582(c). See
also United States v. Webb, 565 F.3d 789, 795 (11th Cir. 2009).
District judges have discretion to recruit and sometimes ap-
point counsel for prisoners seeking post-judgment benefits,
see United States v. Guerrero, 946 F.3d 983, 985 (7th Cir. 2020),
but prisoners do not have a constitutional or statutory enti-
tlement to appointed counsel.
Section 3582(c)(2) is not the only law permiling a district
court to reduce sentences because of retroactive legal chang-
es. Section 404(b) of the 2018 Act provides its own authority
to do this:
A court that imposed a sentence for a covered offense may, on
motion of the defendant, the Director of the Bureau of Prisons,
the alorney for the Government, or the court, impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010
(Public Law 111–220; 124 Stat. 2372) were in effect at the time the
covered offense was commiled.
See also United States v. SuBon, 962 F.3d 979 (7th Cir. 2020).
But this does not imply a constitutional entitlement to ap-
pointed counsel, nor does the 2018 Act supply a statutory
entitlement. An administrative order issued by the Southern
District of Illinois (where Blake’s litigation occurred) recog-
nizes that he does not have an entitlement to counsel but ob-
serves that the Federal Defender has offered to supply repre-
sentation as a service to both the judges and the prisoners. It
is a lawyer from the Federal Defender who has represented
No. 20-2145 5
Blake so far. Having opted in as a service, counsel has not
locked the door behind himself.
It follows that we must deny Blake’s request that his cur-
rent lawyer be compelled to continue providing legal ser-
vices. Counsel may or may not be right in thinking that
Blake’s appeal is frivolous, but he is entitled to withdraw his
services to honor his ethical obligation not to pursue a claim
that he honestly believes to be frivolous.
This conclusion does not end the appeal. Blake is entitled
to represent himself or to seek the aid of a lawyer willing to
provide it. This appeal has yet to be briefed. Blake has told
us why (in his view) counsel should not be allowed to with-
draw, but he has not had an opportunity to file a brief on the
merits. And we have not heard from the United States.
This court therefore gives Blake 45 days (until March 12,
2021) to file an opening brief. The rest of the briefing sched-
ule will follow the Federal Rules of Appellate Procedure. If
within 30 days a lawyer files an appearance on Blake’s be-
half, we will entertain a motion from counsel to reset the
briefing schedule.
Bolom line: Counsel’s motion to withdraw is granted,
but his proposal to dismiss the appeal (a la Anders) is denied,
and a new briefing schedule is set.