NONPRECEDENTIAL DISPOSITION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 22, 2011
Decided November 23, 2011
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1701
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:01‐CR‐00093(01)RM
NICHOLAS A. RUSHLOW,
Defendant‐Appellant. Robert L. Miller, Jr.,
Judge.
O R D E R
Nicholas Rushlow violated the conditions of his supervised release, and the district
court imposed a term of 54 months’ reimprisonment. Rushlow filed an appeal, but his
appointed counsel seeks to withdraw because he cannot find a nonfrivolous argument to
pursue. See Anders v. California,
386 U.S. 738, 744 (1967). Rushlow has not responded to his
attorney’s submission. See CIR. R. 51(b). We confine our review to the potential issues
identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74
(7th Cir. 2002).
Rushlow pleaded guilty in 2002 to possessing a gun during a drug trafficking crime,
18 U.S.C. § 924(c), and also while being an unlawful user of drugs,
id. § 922(g)(3). The
district court sentenced him to a total of 97 months’ imprisonment to be followed by
No. 11‐1701 Page 2
concurrent, 3‐year terms of supervised release. Rushlow was released from prison in May
2009. In October 2010 his probation officer petitioned to revoke Rushlow’s supervised
release after he allegedly had tried to gun down an old enemy in Elkhart, Indiana, by
shooting through the front door of the man’s house. Rushlow had shown up at the
residence in the middle of the night, banged on the front door and announced that he was a
police officer, and opened fire through the glass door after the man and his wife turned on
the house lights and were approaching the front door. At a revocation hearing, Rushlow
admitted that he had associated with a known felon, drank alcohol, missed eight months of
drug treatment, and failed to notify his probation officer that he was questioned by police.
But he denied allegations that he had committed the state crimes of battery, attempted
murder, and possession of a firearm. Rushlow also denied violating a court order to pay
child support.
The district court concluded that a preponderance of the evidence established that
Rushlow had committed each charged violation of his supervised release except for
nonpayment of child support. The court imposed a term above the recommended
reimprisonment range of 37 to 46 months, which corresponds to a Grade A violation and a
criminal history of IV. See U.S.S.G. §§ 7B1.1(a)(1), 7B1.4(a)(2). Rushlow had been employed
and drug free while on supervised release, the court explained, but the serious nature of his
violations necessitated “a significant penalty” near the statutory maximum. See
18 U.S.C.
§ 3583(e)(3).
Counsel first considers whether Rushlow might argue that the evidence presented by
the government is too thin to sustain the district court’s findings that he violated several
conditions of his supervised release. But counsel has not said that Rushlow wants to
challenge the revocation itself, so counsel need not have discussed possible challenges to the
revocation. See United State v. Wheaton,
610 F.3d 389, 390 (7th Cir. 2010).
Counsel next questions whether Rushlow could challenge the length of the term of
reimprisonment but concludes that any argument would be frivolous. We agree. The district
court discussed the particularly disturbing circumstances of the attempted murder, the need
for the term to reflect the seriousness of the violations, and Rushlow’s positive attributes
while on supervised release. This explanation demonstrates that the court considered the
applicable policy statements and sentencing factors before selecting the term. See
18 U.S.C.
§ 3553(a); U.S.S.G. § 7B1.4(a). Thus, we would not find the term of reimprisonment to be
plainly unreasonable. See United States v. Neal,
512 F.3d 427, 438 (7th Cir. 2008); United States
v. Kizeart,
505 F.3d 672, 674 (7th Cir. 2007).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
