NONPRECEDENTIAL DISPOSITION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 February 22, 2012
Decided February 23, 2012
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐1984
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:93‐CR‐30132‐001‐WDS
TOMMY MITCHELL, William D. Stiehl,
Defendant‐Appellant. Judge.
O R D E R
Tommy Mitchell violated the conditions of his supervised release by distributing
methamphetamine. A judge in the Southern District of Illinois revoked his supervision and
imposed a term of 51 months’ reimprisonment. Mitchell filed this appeal, but his appointed
lawyer has concluded that the case is frivolous and seeks to withdraw. See Anders v.
California,
386 U.S. 738, 744 (1967). Mitchell has not responded to his attorney’s submission.
See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s facially
adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
Mitchell pleaded guilty in 1994 to conspiring to distribute heroin,
21 U.S.C. §§ 846,
841(a)(1), and possessing heroin with the intent to distribute,
id. § 841(a)(1). He was
sentenced in the Southern District of Illinois to 135 months’ imprisonment. We affirmed the
judgment. Mitchell v. United States,
79 F.3d 1150 (7th Cir. 1996). Mitchell was released from
No. 11‐1984 Page 2
prison in April 2004 and began serving his 8‐year term of supervised release. Two years
later he was indicted in the Southern District of California on two counts of distributing
methamphetamine.
21 U.S.C. § 841(a)(1). Based on those charges, Mitchell’s probation
officer in Illinois petitioned to revoke his supervised release. Rather than act on that
petition, the district court transferred jurisdiction over Mitchell’s supervision (and the
petition to revoke it) to the Southern District of California. See
18 U.S.C. § 3605. Mitchell
later pleaded guilty to the drug charges in California, and the district court there sentenced
him to a total of 95 months’ imprisonment and imposed a new term of 5 years’ supervised
release. The court never resolved the pending petition to revoke Mitchell’s original term of
supervised release but instead, after four years, transferred jurisdiction back to the Southern
District of Illinois. After that the probation office in Illinois elected to proceed with its
petition to revoke Mitchell’s supervised release.
At his revocation hearing, Mitchell admitted distributing methamphetamine, and the
district court revoked his supervised release. Mitchell’s recommended reimprisonment
range was 51 to 63 months, which corresponds to a Grade A violation and a criminal history
category of VI, U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a)(2), capped by a 60‐month statutory
maximum,
18 U.S.C. § 3583(e)(3). Mitchell sought a below‐range term because five years
already had passed since he committed the new crimes in California, and during that time,
Mitchell maintained, he had been committed to the education and training offered by the
Bureau of Prisons. He also requested that the term run concurrently with the 95‐month
sentence for his new convictions. The district court described the serious nature of the drug
offenses and imposed a term of 51 months’ reimprisonment, to run consecutively to
Mitchell’s other sentence.
Counsel first questions whether Mitchell might argue that the revocation of
supervised release was not warranted. That argument would be frivolous, however,
because revocation is permitted if a violation of a condition of supervised release is proven
by a preponderance of the evidence,
18 U.S.C. § 3583(e)(3), and Mitchell admitted that he
violated a condition by distributing drugs. Moreover, counsel has not said that Mitchell
wants to challenge the revocation itself, so counsel need not have discussed possible
challenges to the revocation. See United State v. Wheaton,
610 F.3d 389, 390 (7th Cir. 2010).
Counsel also considers challenging the term of reimprisonment but correctly
concludes that any argument would be frivolous. The district court considered the
recommended reimprisonment range in U.S.S.G. § 7B1.4 and the sentencing factors in
18
U.S.C. § 3553(a) before selecting a term. The court acknowledged that Mitchell may be
working to improve himself while incarcerated, see
18 U.S.C. § 3553(a)(1), but chose a term
within the recommended range to account for the serious nature of the offenses and to
protect society from Mitchell’s further crimes,
id. § 3553(a)(2)(A), (C). We would not find the
No. 11‐1984 Page 3
term of reimprisonment to be plainly unreasonable. See United States v. Kizeart,
505 F.3d 672,
674 (7th Cir. 2007); United States v. Pitre,
504 F.3d 657, 664 (7th Cir. 2007).
Finally, counsel questions whether Mitchell could argue that he received ineffective
assistance of counsel at the revocation hearing. Counsel has not indicated on what ground
Mitchell might base that argument, and we take no position on the merit of a potential
claim. We agree with counsel, however, that the contention would be best saved for
collateral review, where the necessary factual predicate can be developed. See Massaro v.
United States,
538 U.S. 500, 504–05 (2003); United States v. Harris,
394 F.3d 543, 557–58 (7th
Cir. 2005).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
