United States v. Jeffrey Farris ( 2021 )

NONPRECEDENTIAL DISPOSITION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 21, 2021
Decided January 22, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 20-1936
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 04-CR-40039-JPG-13
JEFFREY D. FARRIS, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
Jeffrey Farris appeals the sentence that the district court imposed after revoking
his supervised release. His attorney has moved to withdraw, arguing that the appeal is
frivolous. See Anders v. California, 386 U.S. 738 (1967). We agree with counsel, so we
grant the motion and dismiss the appeal.
In 2007, Farris pleaded guilty to conspiring to manufacture and distribute
methamphetamine. See 21 U.S.C. §§ 841, 846. He was sentenced to 262 months in prison
and 10 years’ supervised release. His prison sentence was later reduced to 128 months
due to his substantial assistance to the government, see FED. R. CRIM. P. 35, and
retroactive amendments to the Sentencing Guidelines, see 18 U.S.C. § 3582(c)(2).
No. 20-1936 Page 2
Halfway through Farris’s term of supervised release, the probation office
petitioned for revocation based on several alleged violations: As Farris would later
admit, he had unlawfully possessed and used methamphetamine and marijuana;
diluted a urine sample for a drug and alcohol screening; failed to attend meetings with
his probation officer and submit reports to her; and incurred several traffic violations,
including driving without a registration, license, and seatbelt.
Based on Farris’s admissions, the district court revoked Farris’s supervised
release. Instead of detaining him pending sentencing, however, the court continued the
sentencing hearing for three months and released Farris on bond, extending him an
opportunity to prove that he could abide by the law and the conditions of his
supervision. But Farris did not show up for the hearing, and his whereabouts were
unknown (including to his attorney) for over seven months. When he finally appeared,
the court sentenced him to 36 months in prison—a term 12 months above the applicable
range under the policy statements in Chapter Seven of the Sentencing Guidelines—and
no supervised release.
We start by noting that a defendant who appeals a revocation order does not
have an unqualified constitutional right to counsel, so the Anders safeguards need not
govern our review. Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1973). Even so, our practice
is to apply them. United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016). Counsel
explains the nature of the case and addresses the issues that an appeal of this kind
might involve, and Farris has not responded to counsel’s motion. See CIR. R. 51(b).
Because counsel’s analysis appears adequate, we limit our review to the subjects that he
discusses. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first assures us that he consulted with Farris about contesting the
revocation and the admissions upon which it was based, and Farris does not want to do
so. See Wheeler, 814 F.3d at 857. Thus, counsel properly omits discussion of potential
challenges to the revocation. See id.
Next, counsel concludes, and we agree, that Farris could not plausibly challenge
the legality of his three-year sentence. Because Farris’s underlying offense is a Class A
felony, see 18 U.S.C. § 3559(a)(1); 21 U.S.C. § 841(b), the court could have sentenced him
up to five years in prison for violating his supervised release. 18 U.S.C. § 3583(e)(3).
Counsel also considers whether Farris could raise any non-frivolous challenge to
the calculation of his imprisonment range but correctly concludes that he could not.
No. 20-1936 Page 3
Farris did not object to the district court’s calculation of the policy-statement range, so
our review would be for plain error. See Wheeler, 814 F.3d at 857. The court correctly
ruled that Farris’s possession of methamphetamine—one of his most serious
violations—was a Grade B violation because it was punishable by up to two years in
prison. See 21 U.S.C. § 844(a) (allowing up to two years in prison for defendants who,
like Farris, have a prior drug conviction); U.S.S.G. § 7B1.1(a)(2). Based on this
classification and Farris’s undisputed criminal history category of V, the court correctly
calculated an applicable range of 18 to 24 months in prison. See U.S.S.G. § 7B1.4(a).
Counsel next discusses whether Farris could argue that the district court
insufficiently addressed his arguments in mitigation, see Gall v. United States, 552 U.S.
38, 51 (2007), but he is right that doing so would be pointless. Farris raised only one
mitigating argument: that he evaded sentencing because he wanted to earn extra money
to support his family before he was reincarcerated. The court considered this excuse,
but it explained that if Farris had come in as initially ordered, instead of trying to dodge
sentencing, he would “still be with [his] family now.” That explanation was sufficient.
See United States v. Dawson, 980 F.3d 1156, 1165 (7th Cir. 2020).
Finally, counsel correctly recognizes that any challenge to the substantive
reasonableness of Farris’s 36-month sentence would also be futile. Our review would be
highly deferential, asking only whether the sentence was plainly unreasonable.
See Dawson, 980 F.3d at 1165–66. Here, the district court adequately justified the
above-range sentence based on the Chapter Seven policy statements and the relevant
factors under 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e)(3); United States v. Raney,
842 F.3d 1041, 1043 (7th Cir. 2016). The court highlighted Farris’s lengthy criminal
history, the number and seriousness of his violations, and the gravity of his post-
revocation conduct (absconding for seven months). Farris, the court explained, had
squandered a “big break”—the “rare” opportunity to avoid reimprisonment by proving
to the court, even after admitting his violations, that he could abide by the law. Instead,
he disappeared immediately after the court had “let [him] out to turn [his] life around.”
Further, the court reasonably concluded that Farris’s record of noncompliance
demonstrates that more supervised release would be ineffectual, so prison time was the
only appropriate penalty.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.