United States v. Jones, Andrew J. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 14, 2005
Decided December 1, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1792
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Eastern
District of Wisconsin
v.
No. 93-CR-222
ANDREW J. JONES,
Defendant-Appellant. Rudolph T. Randa,
Chief Judge.
ORDER
In February 1994, Andrew Jones pleaded guilty to four counts of bank
robbery under 18 U.S.C. § 2113(a). He was sentenced to four concurrent 137-month
terms of imprisonment, four concurrent three-year terms of supervised release, and
$11,448 in restitution. Upon his release from prison in December 2004, Jones
began to serve his terms of supervised release, subject to special conditions that he
reside for the first 60 days in a community correctional center, participate in
programs for substance abuse and mental health treatment, and make payments
toward the amount he owed in restitution. Within two months, however, Jones’s
probation officer petitioned to revoke his release because he had been kicked out of
the correctional center and failed to take any steps toward meeting the other special
conditions. After a hearing, the district court revoked Jones’s supervised release.
No. 05-1792 Page 2
Concluding that he was “unsupervisable,” the court reimprisoned him for 18
months with no further supervised release. Jones filed a notice of appeal, but his
appointed counsel has moved to withdraw because he is unable to find a
nonfrivolous basis for appeal. Anders v. California, 386 U.S. 738 (1967). Jones did
not respond1 to our invitation to explain why he believes his appeal has merit, see
Cir. R. 51(b), so we review only the potential issues identified in counsel’s brief.
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first considers whether Jones might argue 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). By statute the district court must take
two considerations into account when deciding whether to revoke a term of
supervised release and reimprison the defendant: it must find by a preponderance
of the evidence that he violated a condition of his release, see 18 U.S.C. § 3583(e)(3);
United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir. 2001), and it must bear in
mind essentially the same factors that it considered in imposing his original
sentence, see 18 U.S.C. § 3583(e) (incorporating by reference most of the factors
from 18 U.S.C. § 3553(a)); 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 any challenge to the revocation would be frivolous because
both considerations were satisfied. First, Jones did not contest the government’s
allegation that he violated conditions of his release, which means that his guilt was
established to a degree of reliability far exceeding the preponderance standard. See
United States v. Delatorre, 406 F.3d 863, 866 (7th Cir. 2005). Second, the district
court’s remarks concerning “the gravity of the offense, the character of the
defendant, [and] the need to protect the community” reflect that it adequately
considered the § 3553(a) factors. The court need not make explicit findings
regarding the factors; it is enough if its comments show that it considered the
appropriate factors. McClanahan, 136 F.3d at 1151.
Counsel next considers whether Jones might argue that the district court
abused its discretion in imposing an 18-month term of reimprisonment because it is
beyond the range recommended by the Sentencing Guidelines. See U.S.S.G.
§ 7B1.4 (suggesting range of 8 to 14 months for Grade C violation with Category VI
criminal history). But as counsel points out, the provisions for revocation are, and
have always been, only advisory. See U.S.S.G. Ch. 7, Pt. A(1); United States v.
Alburay, 415 F.3d 782, 787 (7th Cir. 2005); United States v. Salinas, 365 F.3d 582,
1
Jones filed a copy of a letter he sent to his attorney asking that a habeas
corpus petition be filed on his behalf. Even if we construed this submission as a
Rule 51(b) response, it would not help him because it does not identify any
nonfrivolous issues for appeal.
No. 05-1792 Page 3
588 (7th Cir. 2004). The district court was not required to adhere strictly to the
guidelines recommendation.
Finally, counsel contemplates challenging the term of reimprisonment on
grounds of its reasonableness. A term will not be unreasonable if the district court
selects it after considering the recommended guidelines range and the § 3553(a)
factors. See United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005); Salinas, 365
F.3d at 588-89. Our review of the revocation hearing transcript satisfies us that the
district court observed these requirements. The court was aware of the
recommended guidelines range, but chose to depart from it out of a belief that Jones
was unable to abstain from “self-defeating power struggles” with authorities. The
court also alluded to the § 3553(a) factors in remarking that, given Jones’s
numerous incident reports while incarcerated and his expulsion from the
community correctional center, the need to protect the public (see 18 U.S.C.
§ 3553(a)(2)(C)) and Jones’s own need for a controlled medical environment (see 18
U.S.C. § 3553(a)(2)(D)) outweighed the victims’ interest in having him free so that
he could begin to make restitution (see 18 U.S.C. § 3553(a)(7)). Just as in Carter
and Salinas, the district court adequately explained its reasons for imposing a
longer term of reimprisonment than that recommended by the guidelines. See
Carter, 408 F.3d at 854-55 (concluding that defendant’s “pattern of serial conduct
and of non-compliance with the requirements of supervised release” merited
reimprisonment at twice the recommended range); Salinas, 365 F.3d at 590
(holding that pattern of defiance of court orders and violent behavior justified
reimprisonment at nearly three times the range recommended). We thus agree
with counsel that it would be frivolous to contest the term of reimprisonment.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.