Judges: Per Curiam
Filed: Aug. 26, 2016
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 August 26, 2016 Decided August 26, 2016 Before DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3777 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 12-CR-175 MATO O. MONTELONGO,
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 August 26, 2016 Decided August 26, 2016 Before DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3777 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 12-CR-175 MATO O. MONTELONGO, ..
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NONPRECEDENTIAL DISPOSITION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 August 26, 2016
Decided August 26, 2016
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐3777
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 12‐CR‐175
MATO O. MONTELONGO, William C. Griesbach,
Defendant‐Appellant. Chief Judge.
O R D E R
Mato Montelongo pleaded guilty in 2014 to using counterfeit credit and debit
cards, see 18 U.S.C. § 1029(a), and was sentenced to 16 months’ imprisonment and
3 years’ supervised release. Three months after he was released from prison and began
serving the term of supervision, the government sought revocation, see 18 U.S.C.
§ 3583(e), (g), alleging that Montelongo had absconded to Colorado after twice testing
positive for marijuana. At a hearing on the government’s motion, see FED. R. CRIM.
P. 32.1, Montelongo admitted that he had violated conditions of release prohibiting
illegal drug use, mandating drug testing and counseling, and requiring that he follow
his probation officer’s instructions. The district court revoked his supervised release and
imposed a prison term of 12 months and 1 day. Montelongo filed a notice of appeal, but
No. 15‐3777 Page 2
his appointed attorney asserts that the appeal is frivolous and seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967).
A defendant facing revocation of supervised release does not have a
constitutional right to counsel unless he challenges the appropriateness of revocation or
asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S.
778, 790–91 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015);
United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Montelongo did not do
either, so the Anders safeguards do not govern our review of counsel’s motion to
withdraw. See Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987); Eskridge, 445 F.3d
at 933. That said, we invited Montelongo to comment on counsel’s submission,
see CIR. R. 51(b), but he did not. We evaluate counsel’s submission to assure that any
potential issues have been vetted. See United States v. Brown, 823 F.3d 392, 394 (7th Cir.
2016); United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016). Counsel’s supporting
brief explains the nature of the case and addresses potential issues that an appeal of this
kind might be expected to involve. The lawyer’s analysis appears to be thorough, so we
focus our review on the subjects he discusses. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel first assesses whether Montelongo could argue that the district court
lacked a sufficient basis to revoke his supervised release. We agree with counsel that an
appeal raising this contention would be frivolous because Montelongo admitted the
violations alleged by his probation officer and, in open court, specifically acknowledged
using marijuana and making “a conscious decision not to check in with” the probation
officer.
Counsel next questions whether Montelongo could challenge the calculation of
his reimprisonment range. The probation officer had applied the Chapter 7 policy
statements in calculating a reimprisonment range of 8 to 14 months based on
Montelongo’s original criminal history category of VI and the categorization of his
violations as Grade C offenses. See U.S.S.G. §§ 7B1.1(b), 7B1.4. The district court
accepted that calculation without objection from Montelongo, thus limiting our review
to plain error. See Wheeler, 814 F.3d at 857; United States v. Pitre, 504 F.3d 657, 661
(7th Cir. 2007). Counsel cannot find any fault with the calculated range, making any
claim of error frivolous.
Counsel finally discusses, but rightly rejects as frivolous, an argument that the
new term of imprisonment is unlawful or unreasonable. The term imposed is within the
policy‐statement range and is less than the statutory maximum of 24 months.
No. 15‐3777 Page 3
See 18 U.S.C. §§ 3559(a)(3), 3583(b)(2), (e)(3). As required by 18 U.S.C. § 3583(e), the
district court took into account the factors listed in 18 U.S.C. § 3553(a), including
Montelongo’s repeated failure to comply with the terms of his supervision, the need to
deter him from future misconduct, and the need to protect the public. We would not
find the new term of imprisonment to be plainly unreasonable. See United States v. Jones,
774 F.3d 399, 404–05 (7th Cir. 2014); United States v. Neal, 512 F.3d 427, 438–39 (7th Cir.
2008).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.