United States v. Noah Heaser , 298 F. App'x 502 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 30, 2008
Decided October 30, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-1619
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
05-cr-125-bbc
NOAH P. HEASER,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
Noah Heaser stole from his employer, the Mayo Clinic, a variety of items,
including computer parts, cameras, microscope lenses, and dental hand pieces, and sold
them on eBay. He pleaded guilty in the District of Minnesota to mail fraud, see 18
U.S.C. § 1341, and was sentenced to five months’ imprisonment and three years’
supervised release, and was ordered to pay $136,967 in restitution. After Heaser was
No. 08-1619 Page 2
released from prison, the district court in Minnesota transferred jurisdiction over his
supervised release to the Western District of Wisconsin. Shortly before that supervision
was set to end, Heaser’s probation officer petitioned for revocation. Heaser, who was
represented by counsel, waived his right to a revocation hearing and admitted that in
most months he failed to make the minimum restitution payment of $100, and that after
being ticketed for driving offenses he failed to tell his probation officer about the
encounter with police. The district court found that Heaser had committed a Grade C
violation, see U.S.S.G. § 7B1.1(a)(3), and ordered him to serve an additional nine months’
imprisonment. The court also imposed a new 18-month term of supervised release.
Heaser filed a notice of appeal, but his newly appointed appellate lawyers seek to
withdraw under Anders v. California, 386 U.S. 738 (1967), because they are unable to
discern a nonfrivolous issue to pursue. Counsel’s supporting brief is adequate, and
Heaser has not responded to our invitation under Circuit Rule 51(b) to comment on
counsel’s submission. We limit our review to the potential issues identified in counsel’s
brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first evaluate whether Heaser might contest the transfer of jurisdiction
from Minnesota to Wisconsin. The district court in Minnesota typed the following
language on a standard form:
IT IS HEREBY ORDERED pursuant to 18 U.S.C. § 3605 the jurisdiction of the
named above be transferred with the records of this Court to the United States
District Court for the Western District of Wisconsin upon that Court’s order of
acceptance of jurisdiction. This Court hereby expressly consents that the period
of [sic] may be changed by the District Court to which this transfer is made
without further inquiry of this Court.
The district court in Wisconsin then approved the transfer, but no one noticed that the
word “supervision” is missing from the second sentence quoted above. Counsel
consider making an issue about the missing word but conclude, as do we, that any
argument would be frivolous. We have never held that defects in the transfer process
are jurisdictional, see United States v. Bass, 233 F.3d 536, 537 (7th Cir. 2000) (explaining
that § 3605 “merely regulates venue”), but, regardless, the missing word is
inconsequential. Not only is the omission obvious from the context, but the second
sentence is unnecessary; the first sentence accomplished the transfer of jurisdiction, and
by statute the district court in Wisconsin was thus “authorized to exercise all powers”
previously held by the sentencing court. 18 U.S.C. § 3605.
No. 08-1619 Page 3
Counsel next consider whether Heaser could challenge the decision to revoke his
supervised release. Heaser stipulated to the probation officer’s allegations and thus
waived his right to a contested hearing. See FED . R. CRIM . P. 32.1(b)(2); United States v.
LeBlanc, 175 F.3d 511, 517 (7th Cir. 1999). As counsel note, the record offers no basis to
conclude that Heaser’s waiver was involuntary. The relevant allegations are detailed in
the probation officer’s written petition to revoke supervised release, as are the possible
statutory penalties and the likely reimprisonment range under the revocation policy
statements. See U.S.S.G. §§ 7B1.3, 7B1.4. In particular with respect to the unpaid
restitution, the probation officer averred that she discussed the payment obligation with
Heaser “repeatedly” and that, in response, he characterized the sentencing court’s
restitution order as an interest-free loan that he would delay paying for as long as
possible. Heaser, who claimed to be self-employed, also admitted in court that he was
paying $1,000 per month for his children’s private-school tuition, and that he purchased
two vehicles for his “business.” Counsel are right to conclude that any argument about
the revocation decision would be frivolous.
Counsel also assess whether Heaser could contest the length of his
reimprisonment. We would uphold the term unless it is plainly unreasonable. United
States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008). A district court should give considerable
weight to the revocation policy statements, but the record must reveal that the court
chose a term of reimprisonment in accordance with the factors listed in 18 U.S.C.
§ 3553(a). See Neal, 512 F.3d at 438; United States v. Carter, 408 F.3d 852, 854 (7th Cir.
2005). Heaser’s reimprisonment range was three to nine months, see U.S.S.G. § 7B1.4,
and the district court concluded that a term at the top of that range was necessary to
deter Heaser and hold him accountable, two factors mentioned in § 3553(a). The court
could have gone as high as 24 months, see 18 U.S.C. § 3583(e)(3), and we agree with
counsel that any challenge to the relatively short period Heaser received would be
frivolous.
Finally, counsel consider challenging the special conditions of supervised release.
The district court ordered that, while on supervised release, Heaser must have
permission from his probation officer to engage in financial transactions of $500 or
more, and he cannot engage in self-employment, or accept contract work, or take a job
with an immediate relative. The court also directed that he allow his probation officer
to search him, his residence, his car, or his office on reasonable suspicion that he
possesses contraband or has violated a condition of supervised release. The district
court did not comment extensively on these conditions, except to mention that Heaser
cannot be trusted to work for himself after violating the conditions of his release.
No. 08-1619 Page 4
Because Heaser did not object to the imposition of these conditions, we would review
for plain error whether they are reasonably related to the circumstances of his case. See
18 U.S.C. § 3583(e); United States v. Silvious, 512 F.3d 364, 370-71 (7th Cir. 2008); United
States v. McKissic, 428 F.3d 719, 721-22 (7th Cir. 2005). As counsel recognize, the
conditions prohibiting Heaser from working for himself or an immediate relative are
reasonable because he used his “self employment” to conceal from the probation officer
purchases with funds that should have gone to his victims and could easily use a
business under the name of his wife or a close family member to do the same. As the
Eighth Circuit put it in United States v. Choate, 101 F.3d 562, 566 (8th Cir. 1996), Heaser
“needs an employment situation in which he is not left to his own devices.” Moreover,
though counsel consider challenging the breadth of the prohibition from working on a
contract basis, the lawyers correctly conclude that it would be more expedient for
Heaser to ask the district court to modify that condition under § 3583(e)(2) than to
attempt to show that the condition violates Heaser’s substantial rights and severely
compromised the fairness of the judicial proceeding. See Silvious, 512 F.3d at 371; United
States v. Tejeda, 476 F.3d 471, 475 (7th Cir. 2007). And, finally, counsel correctly realize
that Heaser’s failure to report his purchases to the probation officer, and his history of
selling stolen property, easily justify the court’s judgment that a probation officer
should be allowed to search Heaser if there is reasonable suspicion that he violated a
condition of his supervision. See United States v. Monteiro, 270 F.3d 465, 467, 469 (7th Cir.
2001) (upholding special condition of supervised release that allows any law
enforcement officer to search defendant at any time).
We therefore GRANT the motion to withdraw and DISMISS the appeal.