United States v. Brandon Lowe ( 2014 )

NONPRECEDENTIAL DISPOSITION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 4, 2014
Decided June 4, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13-3902
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Southern District of Illinois.
v. No. 10CR40013-001
BRANDON R. LOWE, J. Phil Gilbert,
Defendant–Appellant. Judge.
ORDER
Brandon Lowe pleaded guilty in 2010 to possessing with intent to distribute
4-bromo-2, 5-dimethoxyphenethylamine, a Schedule I controlled substance commonly
known as 2C-B. See 18 U.S.C. § 841(a)(1); 21 C.F.R. § 1308.11(a), (d)(3). He was sentenced
to 6 months’ imprisonment and 3 years’ supervised release. See 18 U.S.C. § 841(b)(1)(C).
Lowe was released from prison in 2011 but failed to comply with several conditions of
his supervision. Based on these violations, the district court in January 2013 modified
his supervision and placed him in a halfway house for up to 180 days. Lowe again
violated the terms of his supervision and, in October, his probation officer petitioned
the court for revocation. After Lowe admitted a number of violations, including
possession of marijuana and heroin, the district court revoked his supervised release
No. 13-3902 Page 2
and imposed 14 months’ imprisonment, to be followed by 12 months of supervised
release. See 18 U.S.C. §§ 3583, (e)(3), (g)(1), (h).
Lowe appeals, but his lawyer asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We invited Lowe to
comment on counsel’s motion, see CIR. R. 51(b), but he has not responded. Counsel has
submitted a brief that 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 to be thorough, we limit our review to the subjects that counsel has discussed.
See United States v. Bey, — F.3d —, 2014 WL 1389090, at *2 (7th Cir. 2014); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel informs us that Lowe wishes to challenge the revocation, and thus the
lawyer appropriately considers whether Lowe could argue that the decision to revoke
his supervised release was an abuse of discretion. See United States v. Wheaton, 610 F.3d
389, 390 (7th Cir. 2010). We agree with counsel that any appellate claim challenging the
revocation would be frivolous. Lowe admitted possessing marijuana, heroin, and other
drugs, so the revocation and reimprisonment were mandated by statute. See 18 U.S.C.
§ 3583(g)(1). Moreover, the judge explained the nature of the allegations to Lowe, told
him the consequences of admitting their truth, and ensured that no one had induced his
admissions; therefore, there would be no basis for Lowe to argue that his admissions
were not knowing and voluntary. See FED. R. CRIM. P. 32.1(b); United States v. LeBlanc,
175 F.3d 511, 516–17 (7th Cir. 1999).
Counsel next considers whether Lowe could argue that his 14-month term of
reimprisonment is plainly unreasonable, see United States v. Jackson, 549 F.3d 1115, 1118
(7th Cir. 2008), but properly concludes that any such challenge would be frivolous.
Fourteen months is below the two-year statutory maximum that applies when
supervised release is revoked on a Class C felony, see 18 U.S.C. §§ 3583(g)(1), (e)(3),
3559(a)(3); 21 U.S.C. § 841(b)(1)(C), and also is within the range of 8 to 14 months
suggested by the Sentencing Commission, see U.S.S.G. § 7B1.4(a). Furthermore, the
judge reasonably applied the relevant factors under 18 U.S.C. § 3553(a) in determining
the sentence, taking into account Lowe’s history and characteristics, as well as the need
for deterrence, public safety, and drug treatment for Lowe. See 18 U.S.C. 3583(e). In
these circumstances, we would not conclude that the sentence was plainly
unreasonable. See United States v. Berry, 583 F.3d 1032, 1034 (7th Cir. 2009); United States
v. Neal, 512 F.3d 427, 438–39 (7th Cir. 2008).
No. 13-3902 Page 3
Counsel speculates that Lowe could claim that his lawyer during the revocation
proceedings was constitutionally deficient. This assumes that Lowe 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 v. Scarpelli, 411 U.S. 778, 798–91 (1973); United States v. Eskridge,
445 F.3d 930, 932–33 (7th Cir. 2006). Those circumstances were not present in Lowe’s
case. And we need not decide whether Lowe’s statutory right to counsel under 18 U.S.C.
§ 3006A(a)(1)(E) and Federal Rule of Criminal Procedure 32.1(b)(2)(D) could support a
constitutional claim of ineffective assistance. See Eskridge, 445 F.3d at 932–33. Counsel
identifies no deficiency that could be the basis of a claim of ineffective assistance.
See Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010). Moreover, counsel represented
Lowe in the district court and, as she recognizes, is in no position to challenge her own
performance. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Accordingly, the motion to withdraw is GRANTED, and the appeal is DISMISSED.