United States v. James Assad ( 2020 )

NONPRECEDENTIAL DISPOSITION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 January 21, 2020
Decided January 22, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-2077
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
No. 07-30099-001
v.
Sue E. Myerscough,
JAMES ASSAD, Judge.
Defendant-Appellant.
ORDER
James Assad pleaded guilty to possession with the intent to distribute
methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(C). After completing his term of
incarceration, he began serving six years of supervised release. Following violations of
the conditions of release, the district court revoked his supervised release three times,
twice in 2018 and once in 2019. He now appeals the 12-month prison sentence that he
received for the 2019 violation. His lawyer, however, moves to withdraw from the
appeal, arguing that it is frivolous. See Anders v. California, 386 U.S. 738 (1967). We grant
the motion to withdraw and dismiss the appeal.
No. 19-2077 Page 2
Assad had his term of supervision first revoked four years after his release from
prison in 2014. He admitted to the district court that he violated his conditions of
release by possessing methamphetamine, an admission confirmed by failed drug tests.
And just a year earlier, Assad had agreed to extend his term of supervised release by six
months after he had traveled with a person who possessed methamphetamine. The
court now revoked his term of release and sentenced him to 49 days’ imprisonment
followed by two more years of supervised release.
The district court revoked Assad’s second term of release after he failed another
drug test just three months after the term began. The court sentenced him to 18 months
of supervised release, commanding that while on release Assad “shall report” to jail
every weekend, beginning every Friday at 6:00 PM.
Only three months later, Assad violated the terms of his supervised release
again, this time by failing to report for weekend confinement. He phoned his probation
officer almost a half hour after he was obligated to report to jail, at 6:25 PM on Friday,
and announced that he was not going to jail. He said that he had severe hip pain and
did not have anyone available to watch his dogs. Describing his excuses as “at best
disingenuous” and decrying his “utter disregard” for his conditions of release, the
government argued for 12 months of reimprisonment. Assad responded that he
behaved reasonably: he had acute hip pain, he went to the hospital after the phone call,
and when he tried to enter the jail later that evening, officers denied him entry because
the jail lacked certain paperwork.
After a revocation hearing, the district court found that Assad inexcusably failed
to report as required and revoked his supervised release. The district court highlighted
Assad’s history of violations of his terms of supervised release, noting that Assad was
“unwilling or unable to comply with the conditions.” Remarking that it had leniently
imposed sentences “well below” the recommended policy-statement ranges at his past
revocation hearings, the court stated that longer imprisonment was “necessary at this
time.” It sentenced Assad to 12 months’ incarceration (between the recommended range
of 8 to 14 months) with no additional term of supervised release.
In moving to withdraw, counsel briefs us on the nature of the case and addresses
the potential issues that this kind of appeal might involve. Assad has not responded to
counsel’s motion. See CIR. R. 51(b). Because Assad does not enjoy an unqualified
constitutional right to counsel on an appeal of a revocation order, see Gagnon v. Scarpelli,
411 U.S. 778, 790–91 (1973), the safeguards of Anders v. California, 386 U.S. 738 (1967)
No. 19-2077 Page 3
need not govern our review. Nonetheless, our practice is to follow them. See United
States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Because counsel’s analysis appears
thorough, we limit our review to the subjects that he discusses. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Assad could plausibly argue that the district
court abused its discretion in revoking supervised release because Assad’s hip pain and
the paperwork dispute may have a factual basis. But counsel correctly concludes that
this argument would be frivolous. As counsel explains, a district court may revoke a
term of supervised release if it finds by a preponderance of evidence that the defendant
violated a condition of release. See 18 U.S.C. § 3583(e)(3). We will assume that Assad’s
hip pain limited his mobility and that jail officials would not grant Assad a belated
entry. Nonetheless, Assad could have attempted to comply with his reporting duty by
phoning his probation officer before 6:00 PM. But he chose not to do so. Thus, Assad
could not plausibly argue that the district court unreasonably found that Assad violated
this condition and revoked his term of release.
Counsel next considers and rejects the argument that Assad’s 12-month prison
sentence was procedurally or substantively deficient. As counsel explains, the district
court correctly calculated the policy-statement range of 8 to 14 months’ imprisonment,
considered the 18 U.S.C. § 3553(a) factors (focusing mainly on the “history and
characteristics of the defendant,” id. at (a)(1)), and permissibly selected a sentence
within that range. The district court knew about Assad’s lengthy history of violating
terms of his supervised release and the ineffectiveness of the lenient sentences that
Assad received after those violations. True, in reimprisoning Assad, the district court
did not expressly acknowledge Assad’s asserted hip pain or his attempt to enter the jail
after leaving the hospital. But as counsel correctly states, the court had already
addressed these issues in overruling Assad’s opposition to revocation. Accordingly,
there would be no basis for us to conclude that Assad’s 12-month sentence is “plainly
unreasonable.” United States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004).
Finally, counsel properly determines that any claim of ineffective assistance of
counsel would not be appropriate on direct appeal. That argument is better saved for
collateral review. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); see also United
States v. Eskridge, 445 F.3d 930, 932 (7th Cir. 2006).
We thus GRANT the petition to withdraw and DISMISS the appeal.