United States v. Willie Dabney ( 2018 )

NONPRECEDENTIAL DISPOSITION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 November 21, 2018
Decided November 21, 2018
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1020
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 05 CR 576-1
WILLIE P. DABNEY,
Defendant-Appellant. Rebecca R. Pallmeyer,
Judge.
ORDER
A jury convicted Willie Dabney of unlawfully possessing a firearm as a felon, 18
U.S.C. § 922(g)(1). The district judge sentenced him to 120 months’ imprisonment,
followed by 3 years’ supervised release. We affirmed that judgment, see United States v.
Dabney, 498 F.3d 455, 460 (7th Cir. 2007). Dabney violated the terms of his supervised
release in 2015, 2016, and 2017. He appeals from the imposition of 8 months’
imprisonment based on his latest violation. His lawyer moves to withdraw from the
appeal, arguing that it is frivolous. See Anders v. California, 386 U.S. 738 (1967). We agree
with his attorney, grant the motion to withdraw, and dismiss the appeal.
No. 18-1020 Page 2
A few months after Dabney left prison in 2015, he failed to report to his
probation officer and to participate in mental-health treatment. Based on Dabney’s
admission that he violated his conditions of supervised release, the district judge
mandated that he be placed in a halfway house for six months. But less than a year
later, Dabney admitted that he again failed to report and to participate in mental-health
treatment, and further, that he did not go to the halfway house. The judge revoked his
supervised release and resentenced him to twelve months’ imprisonment to be followed
by 6 months’ supervised release.
Soon after Dabney was back under supervised release, he again failed to follow
the terms. Dabney lied to a probation officer, failed to participate in a mental-health
treatment program, used a controlled substance (marijuana), and violated the terms of
his home-confinement program. At his revocation hearing, Dabney admitted to the
judge that he violated his conditions of supervised release, though he argued in
mitigation that he had not returned to his prior gang life and that he struggled with
mental-health conditions. Both the government and Dabney agreed that supervised
release was not working. The judge concluded that Dabney’s history of difficulty
complying with “basic things” like getting treatment showed that he did not want
“very badly” to change. After calculating the advisory range of imprisonment under the
Chapter 7 policy statements to be 8 to 14 months, the judge sentenced Dabney to eight
months in prison. Dabney appealed.
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). Because Dabney admitted that he
violated his conditions of release and does not offer a complex mitigating argument, we
are not obligated to apply the Anders safeguards in ruling on counsel’s motion to
withdraw. See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
As a matter of practice, however, we apply the Anders standard here. Counsel’s
brief explains the nature of the case and addresses the potential issues that an appeal of
this kind might be expected to involve. Because counsel’s analysis appears thorough,
and Dabney has not responded to counsel’s motion, see CIR. R. 51(b), 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).
No. 18-1020 Page 3
Counsel first considers whether Dabney 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). A judge is entitled to revoke supervised release under 18
U.S.C. § 3583(e)(3) upon finding by a preponderance of the evidence that the defendant
violated the terms. Johnson v. United States, 529 U.S. 694, 700 (2000); United States
v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007). Here, there is objective evidence that Dabney
violated his conditions of supervised release. Moreover, Dabney admitted that he
violated his conditions, and counsel finds no basis on which to argue that his
admissions were unknowing or involuntary. Challenging the revocation, therefore,
would be frivolous.
Next counsel appropriately concludes that a challenge to Dabney’s sentence as
procedurally unreasonable would be pointless. A district court would commit
procedural error by failing to correctly calculate the guidelines range or by treating the
guidelines as mandatory. Gall v. United States, 552 U.S. 38, 51 (2007). But here, the judge
correctly calculated the range of imprisonment, based on the Chapter 7 policy
statement, to be 8 to 14 months because of his criminal history category of VI and his
Grade C violation. See U.S.S.G. § 7B1.4(a). The judge then sentenced Dabney to 8
months, at the low end of the range. We would also find frivolous an argument that the
judge thought she could not deviate from the guidelines, since she acknowledged at the
revocation hearing that the policy-statement range was advisory.
Last, counsel considers a challenge to Dabney’s sentence as substantively
unreasonable. We would presume that a sentence within the policy-statement range is
reasonable, United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and we agree
with counsel that the record would present no basis to disturb that presumption. First,
the judge explained that the sentence was justified based on factors in 18 U.S.C.
§ 3553(a), including Dabney’s history of repeatedly violating the terms of supervised
release. This consideration led her to conclude that incarceration would help deter
Dabney from committing future offenses. Second, the judge considered Dabney’s
mitigation arguments, including his mental-health and substance-abuse issues, as well
as the fact that he is no longer a gang member. Therefore, counsel correctly concludes
that it would be frivolous to challenge the substantive reasonableness of the sentence.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.