United States v. Aaron Wyatt ( 2019 )

NONPRECEDENTIAL DISPOSITION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 December 19, 2019
Decided December 20, 2019
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19‐2044
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 98‐CR‐40002‐JPG‐3
AARON WYATT, J. Phil Gilbert,
Defendant‐Appellant. Judge.
ORDER
Aaron Wyatt served a 264‐month prison sentence for his role in a
drug‐distribution conspiracy. Within a month of his release in August 2018, he admitted
to violating multiple conditions of his five‐year term of supervised release, and after
further violations, the probation office petitioned to revoke his supervised release.
Based on Wyatt’s admission to several violations, including possessing narcotics, the
district court sentenced him to twelve months’ imprisonment, below the range
recommended by the applicable policy statement in the sentencing guidelines.
Wyatt appeals the revocation, but his appointed counsel asserts that the appeal is
frivolous and moves to withdraw. Because a constitutional right to counsel in a
revocation proceeding exists only under the Due Process Clause and on a “case‐by‐case
basis,” Gagnon v. Scarpelli, 411 U.S. 778, 790–91 (1973), the safeguards of Anders
No. 19‐2044 Page 2
v. California, 386 U.S. 738 (1967) need not govern our review. Nonetheless, it is our
practice to follow them. United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Wyatt
did not respond to counsel’s motion to withdraw. See CIR. R. 51(b). Counsel’s brief
explains the nature of the case and addresses the potential issues that this type of
appeal would be expected to involve, and the analysis appears thorough. We therefore
limit our review to the subjects she covers, see United States v. Wheeler, 814 F.3d 856,
857 (7th Cir. 2016) (per curiam), with one exception.
Counsel does not address whether Wyatt wants to challenge whether he
knowingly and voluntarily made the admissions on which his revocation was based.
See Wheeler, 814 F.3d at 857; United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel should have consulted with Wyatt about this issue and told us his decision.
See Wheeler, 814 F.3d at 857; United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012);
Knox, 287 F.3d at 670–71. Wyatt, however, not only admitted that he violated the
conditions of his release, he tested positive for drug use and confirmed under oath that
his admissions were voluntary. Given that the district court sentenced him significantly
below the resentencing range, and that reopening the revocation proceeding could
result in a higher sentence, we see no nonfrivolous argument to raise with respect to his
admissions. See Konczak, 683 F.3d at 349; Knox, 287 F.3d at 671.
Counsel first considers whether Wyatt could argue that the district court
improperly revoked his supervised release and correctly concludes that he could not.
Revocation was mandatory under 18 U.S.C. § 3583(g)(1) because Wyatt admitted to
possessing, on separate occasions, methamphetamine, heroin, and cocaine, violating the
condition that he “shall not illegally possess controlled substances.” See United States
v. Jones, 774 F.3d 399, 403 (7th Cir. 2014); see also U.S.S.G. § 7B1.3(a)(1) (“Upon a finding
of a Grade A or B violation, the court shall revoke … supervised release.”).
Counsel also considers, and rightly rejects, the argument that the district court
did not comply with Federal Rule of Criminal Procedure 32.1(b)(2). As Wyatt confirmed
at the revocation hearing, the government provided notice of the allegations against
him, and he was represented by counsel and satisfied with her advice. The court also
afforded him an opportunity to make a statement and present information in
mitigation. See Jones, 774 F.3d at 403.
Counsel also evaluates whether Wyatt could challenge his sentence but properly
resolves that doing so would be frivolous. Wyatt did not object to the district courtʹs
application of the policy statements in Chapter 7 of the Sentencing Guidelines; indeed,
he affirmatively negotiated the sentence that the district court ultimately imposed. At
best, therefore, our review would be for plain error. See Wheeler, 814 F.3d at 857;
No. 19‐2044 Page 3
see generally United States v. Gibson, 356 F.3d 761, 765–67 (7th Cir. 2004) (Defendants who
bargain for a specific sentence cannot appeal that sentence unless the guilty plea was
involuntary, the sentence was imposed in violation of the law, or the sentence is greater
than the one he bargained for.).
We could not find such an error in this case. In selecting a sentence, the district
court correctly determined that Wyatt’s most serious violations—heroin, cocaine, and
methamphetamine possession—were Grade B, and that this ranking controlled.
See U.S.S.G. § 7B1.1(a)(2), (b). It then properly calculated Wyatt’s sentencing range for
each count based on the grade, the criminal history category of VI, and the statutory
maximum sentences of the original crimes of conviction. See U.S.S.G. § 7B1.4(a), (b)(1);
18 U.S.C. §§ 3559(a)(3), 3583(e)(3); 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Finally, after
discussing the seriousness of the violations (that Wyatt had begun using drugs almost
immediately upon his release) and stating that Wyatt would likely recidivate unless he
changed his “entire lifestyle,” the court “reluctantly” accepted the parties’ joint
sentencing recommendation. See 18 U.S.C. § 3553(a). Calling the sentence a “break,” the
district court imposed twelve months’ imprisonment, below the range suggested by the
policy statements, and three years of supervised release. This explanation was
sufficient. See United States v. Boultinghouse, 784 F.3d 1163, 1177 (7th Cir. 2015);
see also United States v. Peterson, 852 F.3d 629, 631 (7th Cir. 2017) (sentence below the
policy‐statement range).
Finally, counsel concludes that any claim of ineffective assistance of counsel is
best raised in a collateral proceeding so that Wyatt can develop an evidentiary record.
Massaro v. United States, 538 U.S. 500, 508–09 (2003); Delatorre v. United States, 847 F.3d
837, 845 (7th Cir. 2017). Noting the narrowness of any such claim to begin with,
see Gagnon, 411 U.S. at 790–91; Brown, 823 F.3d at 394, we agree that it is best reserved
for a collateral hearing, see also United States v. Jones, 861 F.3d 687, 690‐91 (7th Cir. 2017)
(assuming but not deciding that an ineffective‐assistance‐of‐counsel claim can be
brought based on a Fifth Amendment due‐process right at a revocation hearing).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.