United States v. Corey Webster ( 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NONPRECEDENTIAL DISPOSITION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 20, 2021
Decided April 23, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20‐2652
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v. No. 09‐cr‐111‐bbc‐1
COREY WEBSTER, Barbara B. Crabb,
Defendant‐Appellant. Judge.
ORDER
Less than a year after serving a prison term for distributing heroin, 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), Corey Webster violated the conditions of his supervised release
when he failed over a dozen drug tests. A revocation hearing ensued, and soon
thereafter Webster again tested positive. He admitted to the positive drug tests, and the
court revoked his supervised release and sentenced him to 18 months in prison,
followed by 24‐months’ supervised release. Webster filed a notice of appeal, but his
attorney asserts that the appeal is frivolous and seeks to withdraw under Anders v.
California, 386 U.S. 738 (1967).
No. 20‐2652 Page 2
Webster does not have an unqualified constitutional right to counsel when
appealing a revocation order, see Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1973), so the
Anders safeguards need not govern our review. Even so, our practice is to follow them.
See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Webster filed a submission
that we construe as a Circuit Rule 51(b) response to counsel’s motion. Counsel’s brief
explains the nature of the case and addresses potential issues that an appeal of this kind
would be expected to involve. Because his analysis appears thorough, we limit our
review to the subjects that counsel and Webster raise. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
Counsel does not tell us, as he should, whether Webster wants to challenge the
revocation order or the admissions upon which it was based. See United States v.
Wheeler, 814 F.3d 856, 857 (7th Cir. 2016); United States v. Knox, 287 F.3d 667, 670–71
(7th Cir. 2002). But nothing in the transcript of the revocation hearing causes us to
doubt that the admissions were knowing and voluntary. Indeed, at his hearing Webster
not only stipulated through counsel that he violated the conditions of his release, but he
personally confirmed under oath that he had used drugs.
Counsel first considers whether Webster could argue that the court erred by
revoking his supervised release and properly concludes that this argument would be
frivolous. A judge must revoke supervised release upon finding that the defendant
failed more than three drug tests in a year, 18 U.S.C. § 3583(g)(4), and Webster
stipulated to doing so. See United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014).
Next, counsel evaluates whether Webster could challenge the court’s calculation
of his reimprisonment range, and appropriately concludes he could not. The court
properly calculated a range of 21 to 24 months, based on Webster’s commission of a
Grade B violation (because his previous drug conviction made his new infraction
punishable by more than one year), see U.S.S.G. § 7B1.1(a)(2); Wheeler, 814 F.3d at 858,
combined with a criminal history category of VI, see U.S.S.G. § 7B1.4(a), capped by a 24‐
month statutory maximum (because Webster’s original conviction was for a Class C
felony), see 18 U.S.C. § 3583(e)(3).
Counsel also explores but rightly rejects a challenge to the substantive
reasonableness of Webster’s 18‐month term of reimprisonment. We presume a below‐
guidelines sentence like Webster’s to be reasonable, see United States v. Wehrle, 985 F.3d
549, 557 (7th Cir. 2021), and counsel has not identified any ground to rebut this
No. 20‐2652 Page 3
presumption, nor can we. The district court adequately addressed the 18 U.S.C.
§ 3553(a) factors, alluding to the need to hold Webster accountable for his violations, to
protect the community, and to deter further crimes.
Counsel next considers arguing that Webster’s new 24‐month term of supervised
release exceeded the maximum allowed by 18 U.S.C. § 3583(h). Under § 3583(h), a post‐
revocation term of supervised release may 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.” In the
district court, counsel sought to correct the sentence to conform to the view of some
circuits that limit the maximum term of supervised release imposed for a violation of
§ 841(b)(1)(C). See, e.g., United States v. Kelly, 974 F.2d 22, 24 (5th Cir. 1992). Under that
view, § 841(b)(1)(C) authorizes a maximum term of supervised release of 36 months—a
term that, if applied to Webster’s case, would ultimately be reduced to just 18 months
(36 months less the 18‐month prison sentence). But as the district court determined, we
have interpreted § 841(b)(1)(C) as authorizing a maximum supervised release term of
life, see United States v. Shorty, 159 F.3d 312, 315–16 n.6 (7th Cir. 1998), so counsel is
correct that a challenge to the 24‐month supervised release term would be frivolous.
Counsel also considers whether Webster could argue that his lawyer during the
revocation proceedings was constitutionally deficient. This assumes that Webster had a
constitutional right to counsel, but that right attaches in revocation proceedings only if
the defendant contests the alleged violations or presents substantial and complex
grounds in mitigation. See Gagnon, 411 U.S. at 798–91; United States v. Boultinghouse, 784
F.3d 1163, 1171 (7th Cir. 2015). Those circumstances were not present in Webster’s case,
as he admitted that he failed the drug tests. Even if his constitutional right did attach,
counsel identifies no deficiency that could be the basis of a claim of ineffective
assistance. Moreover, such claims generally should be reserved for collateral review,
where the defendant may develop a full record, see Massaro v. United States, 538 U.S. 500,
504–05 (2003), and particularly here, where counsel on appeal also represented the
defendant in the district court. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir.
2003).
Finally, counsel correctly rejects a potential argument that Webster was
prejudiced by his revocation hearing being conducted via videoconference because of
the COVID‐19 pandemic. Although videoconferencing ordinarily is not an appropriate
substitute for a face‐to‐face revocation hearing, United States v. Thompson, 599 F.3d 595,
599–601 (7th Cir. 2010), Congress responded to the COVID‐19 pandemic by authorizing
No. 20‐2652 Page 4
the use of videoconferencing in revocation proceedings. See Coronavirus Aid, Relief,
and Economic Security Act, Pub. L. No. 116‐136, § 15002(b)(1)(F), 134 Stat. 281, 528
(2020). Regardless, the transcript does not reflect that the use of videoconferencing
hindered Webster’s ability to make his case to the judge. See Thompson, 599 F.3d at 601.
In his Rule 51(b) response, Webster blames procedural irregularities for a fake
urine sample that he was accused of giving in March 2020 (i.e., his sample was not
sealed in front of him, and he did not sign any paperwork before it was sent to a lab for
analysis). But any argument about the fake urine sample would not affect the outcome
here, given his stipulation to failing three drug tests in a year. See § 3583(g)(4).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.