United States v. Alvarez, Jose , 202 F. App'x 929 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2006
Decided November 3, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-2505
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Hammond Division
v.
No. 2:03 CR 44
JOSE ALVAREZ,
Defendant-Appellant. James T. Moody,
Judge.
ORDER
In 2003 Jose Alvarez pleaded guilty to using a telephone to facilitate the
commission of a drug offense, see 21 U.S.C. § 843(b), and was originally sentenced to
48 months’ imprisonment followed by 12 months’ supervised release. He
successfully completed his prison term but violated the conditions of his supervised
release when he tested positive for cocaine and missed or refused subsequent drug
tests. The district court revoked Alvarez’s supervised release and reimprisoned him
for 12 months. Alvarez filed a notice of appeal, but his appointed lawyer now moves
to withdraw because she cannot discern a nonfrivolous basis for the appeal. See
Anders v. California, 386 U.S. 738 (1967). For his part, Alvarez accepted our
invitation to comment on counsel’s motion. See Cir. R. 51(b). Because counsel’s
supporting brief is facially adequate, we limit our review to the potential issues
No. 06-2505 Page 2
identified by counsel and Alvarez. See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997).
The procedural history of this case is not fully developed in counsel’s brief.
On December 1, 2004, Alvarez was placed on supervised release. As a condition of
his release, he was required to refrain from using drugs and to participate in a
drug-treatment program. On August 12, 2005, Alvarez tested positive for cocaine.
He also failed to attend nearly a dozen appointments for drug testing and treatment
between August 25, 2005, and October 27, 2005. In November 2005, approximately
two weeks prior to the expiration of Alvarez’s supervised release, his probation
officer petitioned the district court to revoke the term of supervised release. A
summons issued on that petition, which by statute extended Alvarez’s release until
the petition could be resolved. See 18 U.S.C. § 3583(i) (explaining that supervised
release is extended for “any period reasonably necessary for the adjudication of
matters arising before its expiration if, before its expiration, a warrant or summons
has been issued on the basis of an allegation of such a violation”). Subsequently,
Alvarez again tested positive for cocaine, refused drug testing, and admitted to his
probation officer that he had a “serious addiction.” His probation officer amended
the petition to revoke, but before Alvarez’s case could be heard by the district court,
Alvarez and the probation office entered into an agreement that Alvarez would
voluntarily participate in a residential-treatment program. They called their
agreement an “intermediate sanction” or “special condition” of release and agreed to
defer the revocation hearing until after Alvarez completed the program. In January
2006 Alvarez entered residential treatment. But on March 8, 2006, he refused drug
testing at the facility, was belligerent to staff in violation of the facility’s rules, and
was recommended for removal from the program. On March 10, 2006, Alvarez’s
probation officer again amended the petition to revoke, incorporating into the
petition all of Alvarez’s violations from August 2005 through March 2006.
At the revocation hearing, the district court found that Alvarez had violated
the conditions of his supervised release. As an initial matter, Alvarez conceded that
his participation in the residential-treatment program had been voluntary. He also
admitted to testing positive for cocaine and missing scheduled drug tests on
multiple occasions between August 2005 and January 2006. He denied, however,
committing any violation on March 8, 2006. Based solely upon conduct admitted by
Alvarez, the district court found that Alvarez had committed Grade B violations of
his supervised release. The court made no finding as to the alleged violation on
March 8. The court then calculated an advisory guidelines range of 21 to 27
months’ imprisonment but noted that it could sentence Alvarez to no more than 12
months. See 18 U.S.C. § 3583(e)(3).
In his Anders brief counsel first considers whether Alvarez could argue that
the district court abused its discretion by revoking his supervised release. Even
No. 06-2505 Page 3
though Alvarez now contends that the original petition to revoke was “bogus,” he
admitted at the revocation hearing that in August 2005 he tested positive for
cocaine and subsequently failed to comply with the drug-testing condition of his
release. In light of those admissions, the court was required to revoke his
supervised release. See U.S.S.G. § 7B1.3(a)(1). Thus any challenge on this ground
would be frivolous. See, e.g., United States v. Dillard, 910 F.2d 461, 464-65 (7th Cir.
1990) (finding no abuse of discretion where probationer admitted violations).
Counsel next considers whether Alvarez could argue that his 12-month term
of imprisonment is unreasonable. When imposing a term of reimprisonment for
violating a condition of supervised release, a district court must consider the
applicable policy statements and sentencing factors in 18 U.S.C. § 3553(a). United
States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005); United States v. Salinas, 365
F.3d 582, 588-89 (7th Cir. 2004). Alvarez’s most serious violation was Grade B and
his criminal-history category was VI, which yielded an advisory guidelines range of
21 to 27 months’ imprisonment. See U.S.S.G. § 7B1.4(a). Yet the district court was
limited by statute to sentencing him to a maximum of 12 months. See 18 U.S.C.
§ 3583(e)(3). In choosing to impose the maximum allowable term of imprisonment,
the district court considered that Alvarez had attempted rehabilitation during the
course of his release but “always get[s] drawn back into this drug usage.” See id.
§ 3553(a)(1), (2). We therefore agree with counsel that any challenge to the
reasonableness of his sentence would be a frivolous.
Finally, Alvarez asks us to consider whether he could argue that imposition
of the “intermediate sanction” in January 2006 prohibited the district court from
considering violations that occurred prior to that time. Agreements between the
probation office and the probationer do not “bind the district court or deprive it of
the power to inquire into a violation” of the conditions of supervision. See United
States v. Feinberg, 631 F.2d 388, 391 (5th Cir. 1980). Prior to the initial hearing on
the second amended petition, Alvarez and his probation officer agreed that Alvarez
would voluntarily enter residential treatment to address his escalating drug use
and dependency. At the hearing, Alvarez admitted to repeatedly violating the
conditions of his supervised release between August 2005 and January 2006 but
asked the court to “defer” the final revocation hearing until after he had completed
treatment. In his Rule 51(b) response, Alvarez explains that he understood this
agreement to mean that if he successfully completed treatment his supervised
release would be discharged; if he did not, he would go to prison. And there is no
indication in the record that the probation officer agreed to or did withdraw the
petition. So when the probation officer amended the petition for a third time to
reflect that Alvarez was terminated from the treatment program after he refused to
comply with the facility’s rules, the district court proceeded with the final
revocation hearing, where it had authority to determine whether revocation was
No. 06-2505 Page 4
warranted and on what grounds. See 18 U.S.C. § 3583(e)(3). Accordingly, this
argument too would be frivolous.
For the foregoing reasons, counsel’s motion to withdraw is GRANTED, and
the appeal is DISMISSED.