United States v. John High ( 2020 )

NONPRECEDENTIAL DISPOSITION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 April 2, 2020
Decided April 3, 2020
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-2754
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 07-cr-91-bbc-1
JOHN HIGH, Barbara B. Crabb,
Defendant-Appellant. Judge.
ORDER
John High was convicted of possessing a firearm and ammunition while a felon,
18 U.S.C. § 922(g)(1), and he was sentenced to 120 months in prison and three years of
supervised release. After the district court revoked High’s supervised release once, he
was convicted in state court on a new charge of misdemeanor bail jumping, and the
district court revoked it again. High appealed, but because we agree with his appointed
counsel that the appeal is frivolous, we grant counsel’s motion to withdraw and dismiss
the appeal. See Anders v. California, 386 U.S. 738 (1967).
As the district court noted, High has not been “amenable to supervision.” The
court revoked High’s first term of supervised release because he had violated multiple
No. 19-2754 Page 2
release conditions, including committing a new crime (for which he was released on
bond). It imposed one day of imprisonment and an additional year of supervision. Just
six weeks into that second term, High was arrested for violating his bond conditions
because he caused a domestic disturbance. High then stopped contacting his probation
officer, who did not know where High was until he was arrested again—this time on
charges of resisting and obstructing an officer, disorderly conduct, and two more counts
of bail jumping. (High refused to give officers his true name when confronted for
harassing shoppers and asking to trade food stamps for cash.) High pleaded guilty to
one count of misdemeanor bail jumping, and the remaining charges were dropped.
High’s federal probation officer then petitioned the district court to revoke his
supervised release again. High stipulated to three violations: he committed a new
crime; he failed to meet with his probation officer; and he failed to notify his probation
officer within 72 hours of an arrest. Because each was a Grade C violation and he had a
criminal history category of VI, the policy statements in the Sentencing Guidelines
recommended 8 to 14 months’ incarceration. U.S.S.G. §§ 7B1.1, 7B1.4. The government
requested that the court revoke High’s supervised release and impose a high-end
sentence of incarceration with no further supervised release. High asked the court to let
him continue to serve his current term. The court revoked High’s supervised release
and sentenced him to 14 months’ imprisonment with no additional supervised release.
High appealed, but his attorney can identify no non-frivolous issue to raise and
moves to withdraw. Because there is not an unqualified right to counsel on an appeal of
a revocation order, see Gagnon v. Scarpelli, 411 U.S. 778, 789–90 (1973), the safeguards of
Anders need not govern our review. Nonetheless, it is our practice to follow them.
United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). We invited High to identify
potential issues for appeal, see CIR. R. 51(b), and although he did not respond, counsel
conferred with High about the arguments that he wishes to make. Because counsel’s
brief explains the nature of the case and analyzes the potential issues that an appeal of
this kind might be expected to involve, we limit our review to the subjects discussed in
the brief. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
First, counsel notes that High questions whether his 2007 conviction was lawful,
but correctly concludes that the proper method for challenging the conviction is
through direct appeal or collateral review, not an appeal from this supervised-release
revocation proceeding. See United States v. Flagg, 481 F.3d 946, 950 (7th Cir. 2007).
No. 19-2754 Page 3
Counsel next conveys that High wishes to challenge the district court’s
revocation of his supervised release. Under 18 U.S.C. § 3583(e)(3), a district court may
revoke a term of supervised release if it finds by a preponderance of the evidence that
the defendant violated a condition of release, and we review revocation decisions for
abuse of discretion. See Flagg, 481 F.3d at 948. Here, High stipulated that he violated the
conditions of his release, but counsel does not address whether High would now like to
assert that his admissions were not knowing and voluntary. Counsel should have
consulted with High about this issue and told us his decision. See United States
v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
Nonetheless, we agree with counsel that any challenge to the revocation would
be frivolous. In its colloquy with High, the district court 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, High did not
merely admit that he violated the conditions of his release, he was also convicted in
state court of a new crime. See United States v. Huusko, 275 F.3d 600, 602–03 (7th Cir.
2001) (state conviction is sufficient proof that defendant violated conditions of release
by committing a new crime).
Counsel also considers whether the district court committed procedural error by
not adequately weighing the relevant policy statements, the sentencing factors set out in
18 U.S.C. § 3553(a), and High’s mitigation arguments. See United States v. Ford, 798 F.3d
655, 663 (7th Cir. 2015). Here, the district court correctly found that High had committed
a Grade C violation by committing a new crime that exposed him to less than one year
of imprisonment. See U.S.S.G. § 7B1.1(a)(3). (Misdemeanor bail jumping is punishable
by up to nine months’ imprisonment. WIS. STAT. §§ 939.51(3)(a), 946.49(1)(a).) Coupled
with High’s criminal history category of VI, the recommended sentence was 8 to 14
months’ incarceration. U.S.S.G. § 7B1.4. The court then chose to impose 14 months’
incarceration because it wanted “to hold [High] accountable for [his] behavior and to
protect the community.” Incarceration was necessary, the court reasoned, because, after
it had shown leniency when it revoked High’s first term of supervision by imposing
only a day in prison plus a new term, High soon committed multiple violations. This
explanation shows that the court considered High’s history and characteristics, the need
to deter criminal conduct, and the need to protect the public, as well as High’s
mitigation arguments. We therefore agree with counsel that it would be frivolous to
argue that the court did not say enough.
We therefore GRANT the petition to withdraw and DISMISS the appeal.