United States v. Aaron Flota ( 2021 )

NONPRECEDENTIAL DISPOSITION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 15, 2021
Decided December 15, 2021
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
No. 21‐2060
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:15‐CR‐40079‐JPG‐1
AARON B. FLOTA, J. Phil Gilbert,
Defendant‐Appellant. Judge.
ORDER
While Aaron Flota was on supervised release for possessing a destructive device,
see 26 U.S.C. §§ 5861(d), 5871, a probation officer petitioned to revoke his release. He
tested positive for marijuana three times, tested positive for benzodiazepine once, and
had not paid his monthly court‐ordered restitution. At the revocation hearing, Flota
admitted to consuming drugs, but testified that he made the payments. The district
court revoked his supervised release based on his admitted drug‐use violations and
delayed resentencing for 60 days for additional drug testing. Two urine tests conducted
between the revocation and sentencing hearings showed marijuana usage, and the court
No. 21‐2060 Page 2
imposed a term of 21 months’ reimprisonment with no additional term of supervised
release. Flota filed a notice of appeal, but his appointed counsel asserts that the appeal
is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).
Flota does not have an unqualified constitutional right to counsel when
appealing a revocation order. See Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1973).
Nevertheless, we apply the Anders safeguards to ensure that all potential issues receive
consideration. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Because
counsel’s brief adequately addresses the potential issues that an appeal of this kind
might involve, and Flota did not respond to counsel’s motion, see CIR. R. 51(b), we limit
our review to the potential issues she identifies. See United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014).
In assessing the potential issues for appeal, counsel considers whether the
revocation is subject to a nonfrivolous challenge on appeal, but she does not first tell us,
as she should, if she consulted with Flota about whether he wishes to contest his
revocation. See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016). Regardless, we
agree with counsel that any challenge would be frivolous. The court held a hearing and
gave Flota a chance to defend against the allegations, as required by Federal Rule of
Criminal Procedure 32.1. Also, as counsel notes, Flota received written notice of the
charges against him, appointed counsel, and an opportunity to allocute. FED. R. CRIM. P.
32.1(b)(2). Finally, Flota admitted to five violations of his release conditions, and his
admissions made revocation mandatory under 18 U.S.C. § 3583(g)(1). United States v.
Jones, 774 F.3d 399, 403 (7th Cir. 2014).
Regarding his sentence, counsel next considers whether Flota could reasonably
challenge his reimprisonment term as procedurally unsound and rightly concludes that
he could not. Based on Flota’s category VI criminal history from his original sentencing,
and the Grade B violations for drug possession, see U.S.S.G § 7B1.1(a)(2), Flota’s policy‐
statement range was 21 to 27 months, see id. § 7B1.4, capped by a 24‐month statutory
maximum (because the underlying conviction was for a class C felony, see 18 U.S.C.
§ 3583(e)(3)). The government informed the district court of this range at the sentencing
hearing, and the court accepted it as correct when imposing the 21‐month sentence. See
United States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004). Further, the district court
adequately considered at sentencing the aggravating and mitigating factors. These
include Flota’s addiction to marijuana, his failed attempts at treatment, and his wife’s
pregnancy. See United States v. Williams, 887 F.3d 326, 328 (7th Cir. 2018). True, the
district court did not explicitly recite all the § 3553(a) sentencing factors that it was
required to consider under 18 U.S.C. § 3583(e). But we may infer that it considered those
factors based on its finding that Flota’s repeated drug usage, despite available treatment
No. 21‐2060 Page 3
options and his past, unmet promises that he would reform, warranted reimprisonment
at the low end of the guidelines range. See United States v. Dawson, 980 F.3d 1156, 1164
(7th Cir. 2020).
Counsel next asks whether Flota could challenge the substantive reasonableness
of the 21‐month term of reimprisonment. We would ask only whether the sentence is
“plainly unreasonable.” Jones, 774 F.3d at 403 (citation omitted). A within‐guidelines
sentence is presumed reasonable on appeal, and nothing in this record rebuts that
presumption. See United States v. Jarigese, 999 F.3d 464, 471 (7th Cir. 2021).
Finally, counsel correctly concludes that any argument based on ineffective
assistance of counsel is best raised on collateral review. See Massaro v. United States,
538 U.S. 500, 504–05 (2003).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.