United States v. Anthony Garrett ( 2010 )

NONPRECEDENTIAL DISPOSITION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 October 14, 2010*
Decided October 18, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10-2120
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 04 CR 40051
ANTHONY T. GARRETT, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
Anthony Garrett pleaded guilty to being a felon in possession of a firearm, see 18
U.S.C. § 922(g)(1), and was sentenced to 63 months’ imprisonment followed by 3 years’
supervised release. He left prison in September 2009, but within a matter of weeks he
began using illegal drugs. The district court revoked the term of supervision and
ordered him to serve an additional 24 months in prison. Garrett appeals, but his
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 10-2120 Page 2
appointed counsel moves to withdraw because she cannot identify any nonfrivolous
issues to pursue. See Anders v. California, 386 U.S. 738 (1967). Garrett has not opposed
counsel’s motion. See Cir. R. 51(b). Confining our review to the arguments developed
in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2002), we grant the motion to withdraw and dismiss Garrett’s appeal.
At a revocation hearing in December 2009, Garrett admitted that he had violated
the conditions of his supervised release. He confessed to using marijuana and opiates
and acknowledged that he had tested positive for illegal drugs three times in three
months. The district court attributed Garrett’s struggle to the abrupt transition from
prison; confident that he could overcome the odds against him, the court declined to
revoke his supervised release and instead had him placed in a halfway house. But the
court warned him that “if you mess up in the halfway house, you’re going to jail.”
Four months later, however, Garrett was discharged from the halfway house
because he had committed “multiple violations.” At a hearing in April 2010, he told the
district court, through counsel, that he was having “some difficulties” with supervised
release and was resigned to an additional term of imprisonment. The court ordered
him to serve 24 months in prison.
Counsel first considers challenging the district court’s decision to revoke
Garrett’s supervised release. But the record shows that Garrett admitted to using
marijuana and opiates after knowingly and voluntarily waiving his right to contest the
alleged violations. See Fed. R. Crim. P. 32.1; United States v. LeBlanc, 175 F.3d 511, 516-17
(7th Cir. 1999). Because Garrett’s admission establishes that he ran afoul of the
conditions of his supervised release, it would be frivolous to argue that the district
court’s decision to revoke the term of supervision was an abuse of discretion. See 18
U.S.C. § 3583(e)(3); United States v. Flagg, 481 F.3d 946, 948-49 (7th Cir. 2007).
Next counsel explores whether Garrett’s term of 24 months’ imprisonment is
plainly unreasonable. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007). But
any such challenge would be frivolous because the district court employed the proper
methodology to impose the term. See United States v. Neal, 512 F.3d 427, 438-39 (7th Cir.
2008). The court first noted that, because Garrett had a criminal history category of VI
and had committed Grade B violations of the conditions of his supervised release, the
guidelines recommended a term of 21 to 27 months in prison. See U.S.S.G. § 7B1.4(a).
And the court further noted that, because Garrett’s underlying offense was a Class C
felony, he faced a statutory maximum term of 24 months in prison. See 18 U.S.C.
No. 10-2120 Page 3
§ 3583(e)(3). Finally the court lamented that Garrett had not taken advantage of his
time in the halfway house and was “doing life imprisonment on the installment plan”;
although he had “some ability,” the court told him, “you need to put it to good use and
stay away from people that get you in trouble.” See id. § 3553(a)(1) (requiring court to
consider “history and characteristics of the defendant”); id. § 3553(a)(2)(A) (requiring
court to consider need “to promote respect for the law”); id. § 3553(a)(2)(B) (requiring
court to consider need “to afford adequate deterrence to criminal conduct”); id.
§ 3553(a)(3) (requiring court to consider “the kinds of sentences available”).
Counsel also considers discussing whether Garrett received effective assistance
of counsel. But counsel is correct to conclude that a claim of ineffective assistance is best
pursued on collateral review, where a more robust record can be developed. See
Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Harris, 394 F.3d 543,
557-58 (7th Cir. 2005).
We GRANT counsel’s motion to withdraw and DISMISS Garrett’s appeal.