United States v. Rush, Terbrian L. , 132 F. App'x 54 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2005
Decided May 16, 2005
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-1331
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 4:98CR40088-007-JPG
TERBRIAN L. RUSH,
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
Terbrian Rush pleaded guilty to distributing cocaine base, 21 U.S.C. § 841(a)(1),
and was sentenced to 108 months’ imprisonment, three years of supervised release,
and a fine of $250. His sentence was later reduced to 78 months under Federal
Rule of Criminal Procedure 35, and in April 2004 he was released from prison and
began serving his term of supervised release. Within eight days, though, he was
caught on videotape in the company of a convicted felon who was selling crack to an
undercover agent, and a few months after that he was arrested by state authorities
for selling drugs within 1,000 feet of a church. As a result the district court revoked
Rush’s supervised release and reimprisoned him for 23 months—a term just short
of the two-year statutory maximum applicable where the underlying conviction is
for a Class C felony, see 18 U.S.C. § 3583(e)(3)—to be followed by 12 additional
months of supervised release. Rush filed a notice of appeal, but his appointed
No. 05-1331 Page 2
counsel now moves to withdraw because she cannot find a nonfrivolous basis for
appeal. Anders v. California, 386 U.S. 738 (1967). Counsel’s supporting brief is
facially adequate, and Rush himself has not responded to our invitation to present
any objections, see Cir. R. 51(b), so we review only the potential issues identified in
the brief. United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
Rush’s counsel identifies three potential arguments. First, she considers
arguing that the district court abused its discretion in revoking his supervised
release. See United States v. Young, 41 F.3d 1184, 1186 (7th Cir. 1994). Since
Rush at his revocation hearing admitted the violations, he could not contest the
factual basis of the district court’s decision; thus, any challenge to the revocation
would have to be addressed to the court’s application of the relevant statutes and
sentencing guidelines. Under 18 U.S.C. § 3583(e), the district court may revoke
supervised release after considering essentially the same factors it considered in
imposing the original sentence, e.g., the nature and circumstances of the new
violations, the defendant’s history, the need to deter further crimes and protect the
public, and the recommendations of the Sentencing Commission. United States v.
Nonahal, 338 F.3d 668, 671 (7th Cir. 2003); United States v. McClanahan, 136 F.3d
1146, 1151 (7th Cir. 1998). We agree with counsel that the district court’s remarks
during the revocation hearing evidence that it considered the § 3583 factors—the
court was not required to make specific findings with respect to each, see
McClanahan, 136 F.3d at 1151—and we note that the decision to revoke was
consistent with the Sentencing Commission’s nonbinding policy statement that
supervised release should be revoked upon finding a Grade A violation, see
U.S.S.G. § 7B1.3(a)(1), which selling drugs is, see United States v. Trotter, 270 F.3d
1150, 1151 (7th Cir. 2001). In addition, counsel points out that the district court
complied with Federal Rule of Criminal Procedure 32.1, so there is no basis for a
challenge to the revocation on procedural grounds. Rush was notified of the alleged
violations, given appointed counsel, and advised about his rights at the revocation
hearing. For all of these reasons, we agree with counsel that arguing that the
district court abused its discretion in revoking Rush’s supervised release would be
frivolous.
Second, counsel considers whether Rush might argue that his new term of
imprisonment is not “reasonable” under United States v. Booker, 125 S. Ct. 738(2005). It is not clear that Booker requires any change in our evaluation of prison
terms imposed upon revocation of supervised release, since the revocation policy
statements have always been advisory only. See U.S.S.G. Ch. 7 Pt. A(1); United
States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004). Two of our sister circuits have
concluded that Booker replaced the “plainly unreasonable” standard we formerly
applied with its new “reasonableness” standard, see United States v. Fleming, 397
F.3d 95, 99 (2d Cir. 2005); United States v. Edwards, 400 F.3d 591, 592-93 (8th Cir.
2005); cf. United States v. Johnson, 2005 WL 857018, at *3 (6th Cir. Apr. 15, 2005),
No. 05-1331 Page 3
but even if the two formulations are qualitatively different we would not find error
under either. The new term of imprisonment is within the guideline range of 18 to
24 months for a Grade A violation and Category III criminal history, see U.S.S.G.
§ 7B1.4, and the relevant statutory factors were considered. See Salinas, 365 F.3d
at 588-90 (holding that term of imprisonment “significantly longer” than
recommended in policy statement was not plainly unreasonable because court
considered statutory factors and applicable guidelines and explained reasons for
extending term). We thus agree with counsel that it would be frivolous to contest
the term of imprisonment.
Finally, counsel considers whether Rush might argue that he received
ineffective assistance of counsel. Counsel asserts that such an argument would be
frivolous because we ordinarily refuse to review ineffective assistance claims on
direct appeal if appellate counsel also represented the defendant at trial. United
States v. Martinez, 169 F.3d 1049, 1052 (7th Cir. 1999). In addition, our
consideration on appeal is limited to matters shown in the record, and typically the
facts necessary to establish ineffective assistance will be outside the record. United
States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002); Martinez, 169 F.3d at 1052. For
this reason we frequently caution defendants that an action under 28 U.S.C. § 2255is a more appropriate vehicle for challenging counsel’s performance. Schuh, 289
F.3d at 976; Martinez, 169 F.3d at 1052. Rush, of course, is at liberty to later
utilize § 2255 if he can support a claim of ineffective assistance. Massaro v. United
States, 538 U.S. 500, 509 (2003). In any event, as far as this appeal is concerned,
counsel does not identify any deficiency in her performance that could arguably
serve as a predicate for an ineffective assistance claim. Thus, as best we can tell
here, ineffective assistance is not even a potential argument for appeal.
We GRANT the motion to withdraw and DISMISS the appeal.