Judges: Per Curiam
Filed: Jul. 02, 2018
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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 June 29, 2018 Decided July 2, 2018 Before DIANE P. WOOD, Chief Judge MICHAEL S. KANNE, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 17-2786 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Western District of Wisconsin. v. No. 3:12CR00015-001 GARY C. MAYS, Defendant-Ap
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 June 29, 2018 Decided July 2, 2018 Before DIANE P. WOOD, Chief Judge MICHAEL S. KANNE, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 17-2786 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Western District of Wisconsin. v. No. 3:12CR00015-001 GARY C. MAYS, Defendant-App..
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NONPRECEDENTIAL DISPOSITION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 June 29, 2018
Decided July 2, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17‐2786
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District
of Wisconsin.
v.
No. 3:12CR00015‐001
GARY C. MAYS,
Defendant‐Appellant. William M. Conley,
Judge.
O R D E R
A jury convicted Gary Mays of distributing heroin, 21 U.S.C. § 841(a)(1). He was
sentenced to 36 months in prison and three years of supervised release. Mays appeals
the revocation of his supervised release, but his appointed lawyer asserts that the
appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967).
We briefly recount the events since Mays began supervised release. One year
after leaving prison, he pleaded guilty in state court to possessing a firearm as a felon,
see Wis. Stat. § 941.29(2) (2015), and tested positive for marijuana. The district court
revoked his supervised release on these grounds, see U.S.S.G. 7B1.3(a)(1), and
resentenced him to 18‐months’ imprisonment to be followed by 24 months of
No. 17‐2786 Page 2
supervised release. His second term of supervised release—the subject of this appeal—
began in 2016, but Mays again failed to follow its requirements: He refused to attend
court‐ordered mental‐health treatment or comply with required drug testing, and he
neglected to pay his criminal‐assessment penalty. At his revocation hearing, the district
judge considered these violations, as well as the potential impact Mays’s health issues
had on his ability to satisfy the conditions of supervised release. The district judge then
stated that the court would forego revocation if Mays took a drug test that day without
testing positive for marijuana. Rather than complete the test, Mays absconded. The
probation office was unable to reach Mays until his arrest two months later. In light of
this and Mays’s other violations, the judge revoked his supervised release and ordered
Mays reimprisoned for 18 months.
A defendant facing revocation of supervised release typically does not have a
constitutional right to counsel unless he has a serious claim that he has not violated his
conditions of release or a substantial argument against revocation that would be hard to
develop without counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 790–91 (1973);
United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Unless those circumstances
are present, we need not apply the Anders safeguards in ruling on a motion to
withdraw. United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016). Yet we do so as a
matter of practice in revocation appeals, and consequently we invited Mays to comment
on counsel’s motion. See CIR R. 51(b). Mays has not responded, and counsel’s brief
explains the nature of the case and addresses the issues that an appeal of this kind
might be expected to involve. Because the analysis in the brief appears thorough, we
limit our review to the subjects counsel 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 considers whether Mays could argue that the district court abused
its discretion by revoking his supervised release. See United States v. Musso, 643 F.3d
566, 570 (7th Cir. 2011). But counsel properly concludes that Mays’s refusal to
participate in court‐ordered drug testing (and abscond instead) justified revocation, 18
U.S.C. § 3583(g)(3); U.S.S.G. § 7B1.4, cmt. n. 5 (“Upon a finding that a defendant
violated a condition of … supervised release … by refusing to comply with a condition
requiring drug testing, the court is required to revoke … supervised release and impose
a sentence that includes a term of imprisonment.”). Accordingly, a challenge to the
revocation would be frivolous.
Counsel next rejects as frivolous a contention that the term of reimprisonment is
“plainly unreasonable.” See United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008).
No. 17‐2786 Page 3
Because Mays had a criminal history category of I and his violations were Grade C,
see U.S.S.G. § 7B1.1(a)(3), the resulting imprisonment range recommended by the policy
statement set out in section 7B1.4(a) was three to nine months. This range was advisory
and nonbinding. The judge had to consider it, but he could impose a sentence outside
the range up to the two‐year maximum sentence allowed by 18 U.S.C. § 3583(e)(3). See
United States v. McClanahan, 136 F.3d 1146, 1150 (7th Cir. 1998); 18 U.S.C. § 3559(a)(3); 21
U.S.C. § 841(b)(1)(c). And the record reflects that the judge properly considered this
range and the sentencing factors in 18 U.S.C. § 3553. See 18 U.S.C. § 3583(c); United
States v. Flagg, 481 F.3d 946, 951 (7th Cir. 2007). The judge noted Mays’s criminal history,
his repeated supervision violations, see 18 U.S.C. § 3553(a)(1), and the need to hold him
accountable for his actions (including absconding), to protect the community, and to
promote specific and general deterrence, see id. § 3553(a)(2)(A)–(C); United States v. Clay,
752 F.3d 1106, 1108 (7th Cir. 2014) (sentencing judge may consider § 3553(a)(2)(A) so
long as he relies primarily on factors listed in § 3583(e)). Given Mays’s several, repeated
violations, it would be frivolous for him to argue that the judge’s decision to sentence
him to 18 months’ additional imprisonment was plainly unreasonable.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.