United States v. Michael King ( 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NONPRECEDENTIAL DISPOSITION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 April 28, 2021
Decided April 28, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2354
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois.
v. No. 3:17-CR-30052-SMY-1
MICHAEL D. KING, Staci M. Yandle,
Defendant-Appellant. Judge.
ORDER
While on supervised release for failing to register as a sex offender, 18 U.S.C.
§ 2250, Michael King was discharged from his sex-offender treatment program for
threatening his therapist and planning to live with his girlfriend and her minor child
despite his sex-offender status. Based on his discharge and other violations (driving
uninsured, missing a therapy session, and not paying his fines), the district court
revoked his release and sentenced him to one year in prison followed by eight years’
supervision. King appeals the revocation, but his appointed counsel concludes that the
appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967).
No. 20-2354 Page 2
As a preliminary matter, we note that there is no constitutional right to counsel
in an appeal of a revocation of supervised release where, as here, the defendant neither
contests the underlying violations nor raises complex or substantial arguments in
mitigation of revocation. See Gagnon v. Scarpelli, 411 U.S. 778, 790–91 (1973);
United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Anders thus need not
govern King’s appeal, but we apply its safeguards anyway to ensure that all potential
issues receive consideration. United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016).
Because counsel’s brief adequately addresses the potential issues that an appeal of this
kind might involve, and King did not respond to counsel’s motion, see CIR. R. 51(b), we
limit our review to the issues counsel raises. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014). Counsel informs us that King does not wish to challenge the revocation
itself, and so counsel appropriately discusses only possible challenges to King’s new
sentence. See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
Counsel first considers and rightly rejects as pointless any challenge to the
district court’s calculation of King’s sentencing guidelines range. King could not
plausibly contest his assignment to criminal history category III because the court
properly adopted the category used at King’s original sentencing, U.S.S.G. § 7B1.4 n.1,
and King cannot appeal his original sentence in this revocation proceeding.
See United States v. Flagg, 481 F.3d 946, 950 (7th Cir. 2007). And, as counsel notes, the
court found that King’s violations were, at worst, Grade C violations, the least serious
category, see U.S.S.G. § 7B1.1(a)(3), and so King could not benefit from an argument
that his violations were wrongly categorized. Given King’s criminal history category III
and Grade C violations, the district court correctly calculated his guideline range as 5 to
11 months in prison. See U.S.S.G. § 7B1.4.
Counsel next considers whether King reasonably could argue that his term of
supervised release is greater than allowed by law and rightly concludes that he could
not. By statute and under the Sentencing Guidelines (both use the same language), a
new term of supervision following a revocation of supervised release “shall not exceed
the term of supervised release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment that was imposed
upon revocation of supervised release.” 18 U.S.C. § 3583; U.S.S.G. § 7B1.3(g)(2). King’s
failure-to-register conviction under § 2250 carried a mandatory term of supervised
release of five years to life. § 3583(k). The district court’s imposition of one year in
prison and eight years of supervised release was permissible under the statute and
guidelines.
No. 20-2354 Page 3
Next, counsel concludes, and we agree, that King could not plausibly argue that
his sentence was inadequately explained or substantively unreasonable under the
factors in 18 U.S.C. § 3553(a). In imposing a one-year prison term, the district court
adequately explained why it varied upward by one month from the guideline
recommendation of 11 months. It observed that, despite the condition barring King
from proximity to minors, King insisted on living with his girlfriend and her minor
child. The court therefore reasonably decided that enhanced prison time and extended
supervised release were essential to protect the public from King’s refusal to take
seriously his conditions of release. Moreover, as the court also noted, the Sentencing
Guidelines’ application notes contemplate an upward variance for a defendant who
associates with children while under supervision for sexual abuse. § 7B1.4 n.3. We thus
agree with counsel that the court’s explanation renders frivolous any argument that the
court failed to justify King’s sentence or strayed beyond the “bounds of reason” in
weighing the § 3553(a) factors. See United States v. Cunningham, 883 F.3d 690, 701–02
(7th Cir. 2018).
Finally, we agree with counsel that King could not base a potential appeal on
what was admittedly an error, albeit inconsequential, in how the district court referred
to the date of his original sex offense. The court stated that King’s most serious
convictions (for child molestation and sexual assault) occurred 17 years ago; in fact they
occurred about 23 years ago. Because King did not object to the court’s explanation for
his sentence, he forfeited any potential challenge to this misstatement, and we would
review an appellate challenge for plain error. See United States v. Williams, 949 F.3d 1056,
1066 (7th Cir. 2020). That is, we would remand only if King could show that the court’s
mistake affected his substantial rights and seriously affected the fairness of the
proceeding. See id. But, as counsel observes, the point of the court’s remark about
King’s long-past crimes was that his ongoing sex-offender status still matters even
though his offenses occurred long ago. The burden of proving plain error would be on
King, see id., and counsel does not suggest, nor can we find, any reason to think that the
court would have imposed a different sentence had it realized that those offenses
occurred about 23 years earlier instead of 17. Thus, King could not reasonably argue
that plain error contaminated the proceeding. See id. at 1066.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.