NONPRECEDENTIAL DISPOSITION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 July 22, 2010
Decided July 23, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐2244
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 97‐CR‐055‐001
MICHAEL S. ELKINS, J.P. Stadtmueller,
Defendant‐Appellant. Judge.
O R D E R
Michael Elkins appeals from an order revoking his supervised release. His
appointed appellate lawyers have concluded that the appeal is frivolous and move to
withdraw under Anders v. California,
386 U.S. 738 (1967). Elkins was notified of counsel’s
submission but has not responded. See CIR. R. 51(b).
In 1997, Elkins was convicted of bank fraud,
18 U.S.C. § 1344, and sentenced to 24
months’ imprisonment and 5 years’ supervised release. He was also ordered to pay
No. 09‐2244 Page 2
restitution of $8,493. See United States v. Elkins,
176 F.3d 1016 (7th Cir. 1998). The federal
sentence was imposed to run consecutively to state terms Elkins already was serving, so he
was not released from federal prison until September 2007. The conditions of his release
barred Elkins from having a checking account and included requirements that he
participate in drug testing and pay at least $50 a month in restitution.
Elkins stopped paying restitution after the first $100, and when he also missed a
drug test and a meeting with his probation officer, the probation officer conducted a
surprise home visit. By then Elkins had absconded from Wisconsin to Illinois with his
girlfriend, herself a convicted felon. In the process, Elkins had procured a Wisconsin
driver’s license in the name of his girlfriend’s husband and used it to withdraw $7,500 from
the man’s bank account. Elkins later obtained a Social Security card in the name of a man
serving time in a Wisconsin prison. With this new identity, Elkins obtained an Illinois
driver’s license, opened a checking account, and got a job. Soon, though, the Marshals
Service tracked him down, and the probation officer petitioned the district court to revoke
his supervised release.
The district court conducted a revocation hearing after twice appointing new
lawyers at Elkins’s behest. Elkins did not contest the basis for the revocation petition, and
the court found that he had committed 10 violations, including engaging in new criminal
conduct, opening a checking account, failing to pay restitution, skipping a drug test,
associating with a felon, and leaving the Eastern District of Wisconsin without permission.
The most serious, a Grade A violation, was committing bank fraud. The district court
revoked the term of supervision and imposed 36 months’ reimprisonment. A Wisconsin
court already had revoked Elkins’s state supervision, and the district court ordered that the
federal incarceration run consecutively to the state time. As the district court explained, the
Grade A violation, see U.S.S.G. § 7B1.1(a)(1)(B), coupled with a criminal history category of
VI, yielded a reimprisonment range of 33 to 41 months. See id. § 7B1.4. In selecting 36
months, the court noted the number and severity of violations, the failure of past prison
sentences to deter Elkins, and the public’s need for protection. The district court also
reimposed restitution in the amount outstanding, $8,393.
Elkins has advised counsel that he wishes to challenge not just the length of his
reimprisonment, but also the decision to revoke his supervised release. Thus, counsel
consider potential challenges to the factual basis of the revocation and the district court’s
exercise of discretion to revoke. See United States v. Wheaton, — F.3d —,
2010 WL 2485749, at
*1 (7th Cir. 2010). According to counsel, Elkins particularly objects that he was found to
have committed new crimes even though he incurred no new convictions. A conviction,
though, is not a prerequisite to revocation. See U.S.S.G. § 7B1.1 cmt. n.1; United States v.
Perkins,
526 F.3d 1107, 1109 (8th Cir. 2008); United States v. Fleming,
9 F.3d 1253, 1254 (7th
No. 09‐2244 Page 3
Cir. 1993). In any event, a report prepared by the probation officer to document the
violations is replete with evidence (including photographs and video stills) of the bank
fraud and other crimes. And with the factual basis for the petition intact, the district court’s
decision to follow the Sentencing Commission’s recommendation and revoke supervised
release could not have been an abuse of discretion. See U.S.S.G. § 7B1.3(a)(1).
Counsel also explore whether to argue that the reimprisonment term is “plainly
unreasonable.” See United States v. Kizeart,
505 F.3d 672, 674 (7th Cir. 2007). The length of
the term is within the statutory maximum,
18 U.S.C. § 3583(e)(3), and, as counsel recognize,
the district court’s explanation for selecting 36 months reflects consideration of the
applicable policy statements and sentencing factors. See
18 U.S.C. § 3553(a); U.S.S.G. ch. 7,
pt. B. A challenge to the length of reimprisonment would thus be frivolous. See United
States v. Salinas,
365 F.3d 582, 588‐89 (7th Cir. 2004); United States v. Hale,
107 F.3d 526, 530
(7th Cir. 1997).
As their final point, counsel explain that Elkins wants to argue that some or all of his
three lawyers in the district court were constitutionally ineffective. Yet we have held that
the constitutional right to counsel does not extend to revocation proceedings where, as here,
the defendant did not deny committing the alleged violations or offer any substantial
ground in justification or mitigation. United States v. Eskridge,
445 F.3d 930, 931‐32 (7th Cir.
2006). Moreover, appellate counsel have not identified any arguable deficiency in the
performance of their predecessors. A claim of ineffective assistance, then, is likely a
nonstarter, though we agree with appellate counsel that Elkins should save any such claim
for collateral review where the record can be more fully developed. See Massaro v. United
States,
538 U.S. 500, 504‐05 (2003); United States v. Harris,
394 F.3d 543, 557‐58 (7th Cir. 2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
