United States v. Kizeart, Judious , 251 F. App'x 352 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 29, 2007
Decided October 10, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1397
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central District
of Illinois
v.
No. 06-30037-001
JUDIOUS A. KIZEART,
Defendant-Appellant. Jeanne E. Scott,
Judge.
ORDER
Judious Kizeart was convicted in 1996 of possessing ammunition as a felon,
see 18 U.S.C. § 922(g), and was sentenced to 120 months’ imprisonment and three
years’ supervised release. Kizeart served his time in prison and began his term of
supervised release, which a district judge revoked two years later after finding that
Kizeart had committed the crime of aggravated fleeing or attempting to elude a
police officer, see 625 Ill. Comp. Stat. 5/11-204.1 (West 2007). The judge imposed a
20-month term of reimprisonment. Kizeart filed a notice of appeal, but his appointed
counsel now moves to withdraw because he cannot discern a nonfrivolous basis for
appeal. See Anders v. California, 386 U.S. 738 (1967). We invited Kizeart to respond
to counsel’s brief, see Cir. R. 51(b), and he has done so. Counsel’s supporting brief is
No. 07-1397 Page 2
facially adequate, so we limit our review to the potential issues identified by counsel
and Kizeart.1 See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Kizeart could argue that the government
failed to adduce sufficient evidence that he violated a condition of his supervised
release by committing another crime. See 18 U.S.C. § 3583(e)(3). Before revoking a
term of supervised release, the district court must find a violation of the terms of the
release by a preponderance of the evidence. Id.; United States v. Flagg, 481 F.3d
946, 949 (7th Cir. 2007). Counsel notes that at Kizeart’s revocation hearing, the
government introduced a certified copy of his state-court conviction, which showed
that he pleaded guilty to misdemeanor fleeing or attempting to elude police, 625 Ill.
Comp. Stat. 5/11-204(a). Since Kizeart did not challenge the validity of that
conviction, we agree with counsel's assessment that it would be frivolous to argue
that the government did not establish, by a preponderance of the evidence, that
Kizeart committed a crime in violation of a condition of his release.
Counsel and Kizeart next consider whether he could challenge the district
court’s determination that he committed the felony offense of aggravated fleeing or
attempting to elude a police officer, a Grade B violation of the conditions of his
supervised release, see U.S.S.G. § 7B1.1(a)(2). Counsel notes that Kizeart pleaded
guilty only to the misdemeanor charge, which would be a Grade C violation, see id.
§ 7B1.1(a)(3). The felony offense requires an additional showing, as relevant here,
that Kizeart’s flight or attempt to elude was “at a rate of speed at least 21 miles per
hour over the legal speed limit.” 625 Ill. Comp. Stat. 5/11-204.1.
We agree with counsel that it would be frivolous to argue that the district
court erred in finding that Kizeart had committed a Grade B violation, because his
guilty plea on the misdemeanor charge and the officers’ uncontested testimony
established by a preponderance of the evidence that Kizeart committed the felony
offense. At Kizeart’s revocation hearing, the government introduced excerpts from
the transcripts of his trial for aggravated fleeing or attempting to elude police,2
1
We address the proper standard for appellate review of a sentence for violating
conditions of supervised release in a published opinion issued simultaneously with this
order.
2
A jury returned a guilty verdict in that trial, but a judge overturned it because
the state introduced no evidence that the police officers who chased him were in uniform,
a required element of the offense, 625 Ill. Comp. Stat. 5/11-204; People v. Murdock, 748
(continued...)
No. 07-1397 Page 3
including the testimony of two deputies from the Sangamon County Sheriff’s
department. Deputy Jason Hanson identified Kizeart as the driver of a speeding
motorcycle who, in the early morning hours of March 20, 2006, did not pull over
when Hanson engaged his emergency lights and siren, and sped up to 110 mph in a
55 mph zone. Deputy John Diefenback testified that he, along with approximately
six other police cars, chased the same motorcycle that night, and observed it
traveling at 75 mph in a 30 mph zone and later at 80 mph in a 30 mph zone. Thus,
according to the officers’ uncontested testimony, Kizeart was observed fleeing from
police at 55 mph, 45 mph, and 50 miles over the posted speed limits—well over the 21
mph required to qualify as aggravated fleeing or attempting to elude.
Counsel next considers mounting a challenge to the reasonableness of
Kizeart’s 20-month term of reimprisonment. As we explain in the opinion issued
simultaneously with this order, we would set aside his sentence only if it is plainly
unreasonable. See United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005).
Because Kizeart’s original conviction was a Class C felony, the court could have
imposed a sentence up to the statutory maximum of 24 months’ reimprisonment. See
18 U.S.C. §§ 922(g), 3559(a)(3), 3583(e)(3). As counsel notes, the court properly
calculated, based on a Grade B violation and a criminal history category of VI, a
recommended reimprisonment range of 21 to 27 months under the relevant policy
statements. See U.S.S.G. § 7B1.4(a). The district court chose a below-guideline
sentence after considering the 10 months Kizeart already had served in an Illinois
prison and the fact that he “helped the system out” by pleading guilty to the
misdemeanor. Neither counsel nor Kizeart identify any additional factors that would
compel a lesser term, and thus we agree that it would be frivolous to challenge his
sentence on this ground.
Counsel and Kizeart next consider whether he could argue that the court’s
additional 20-month sentence on top of the original 10-year term exceeded the 10-
year statutory maximum for possessing ammunition as a felon. But, as counsel
notes, we rejected that argument in United States v. Colt, 126 F.3d 981, 982-83 (7th
Cir. 1997), explaining that the district court is authorized, under 18 U.S.C.
2
(...continued)
N.E.2d 683, 684-85 (Ill. Ct. App. 2001). Kizeart then pleaded guilty to the misdemeanor
charge, and the state did not re-prosecute him. Nevertheless, at Kizeart’s hearing,
Lieutenant Bill Cearlock testified that he participated in the chase of Kizeart’s
motorcycle, and that the three deputies from the Sangamon County Sheriff’s
department—Hansen, Diefenback, and Travis Koester—were uniformed.
No. 07-1397 Page 4
§ 3583(e)(3), to revoke a term of supervised release and order reimprisonment even if
the defendant has already served a maximum term of imprisonment.
Finally, counsel and Kizeart consider whether he could argue that, because he
served 10 months of his 364-day state-court sentence despite the usual practice in
Illinois of serving just half a prison term, it was unreasonable for the district judge to
impose additional time. We agree with counsel that such a challenge would be
frivolous because the guidelines recommend imposing a consecutive sentence, see
U.S.S.G. § 7B1.3(f), and in any event Kizeart’s disagreement with his state-court
sentence is not for us to resolve.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.