United States v. Tony Lister ( 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NONPRECEDENTIAL DISPOSITION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 June 22, 2020
Decided June 22, 2020
Before
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-2086
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 04-cr-74-bbc-2
TONY M. LISTER, Barbara B. Crabb,
Defendant-Appellant. Judge.
ORDER
After serving a 168-month prison term for distributing cocaine base, 21 U.S.C.
§ 841(a)(1), Tony Lister began a five-year term of supervised release in July 2016.
(He originally was sentenced to 405 months in prison, but his prison term was reduced
three times after retroactive amendments to the Sentencing Guidelines.) Halfway
through his term of supervision, Lister was convicted in Illinois of possessing with the
intent to deliver cannabis, 720 ILCS 550/5(e) (2018), and was sentenced to four years in
state prison. The federal probation office petitioned the district court to revoke Lister’s
supervised release, alleging that he had violated his release conditions by possessing a
controlled substance, committing another crime, disregarding his probation officer’s
instructions, and associating with a convicted felon without permission. Lister
No. 19-2086 Page 2
stipulated to the violations at a May 2019 hearing, and the district court revoked his
release. See 18 U.S.C. § 3583(g) (mandating revocation for possession of a controlled
substance). The court sentenced him to 24 months’ reimprisonment, to run consecutive
to his state sentence, followed by 12 months of supervised release.
Lister filed a notice of appeal, but his attorney asserts that the appeal is frivolous
and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Lister did not
respond to counsel’s motion. See CIR. R. 51(b). A defendant does not have an
unqualified constitutional right to counsel when appealing a revocation order, see
Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1978), so the safeguards in Anders need not
govern our review. Even so, it is our practice to follow them. See United States v. Brown,
823 F.3d 392, 394 (7th Cir. 2016). Because the attorney’s analysis appears adequate, we
focus our review on the subjects he discusses in his brief. See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014).
Counsel first represents that Lister wishes to challenge only his sentence, so he
properly refrains from discussing whether he could raise any non-frivolous arguments
about the revocation decision. See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir.
2016); United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Next, counsel rightly concludes that Lister could not raise a non-frivolous
argument that his sentence was procedurally improper. The district court correctly
classified Lister’s most serious offense as a Grade A violation under U.S.S.G.
§ 7B1.1(a)(1) because his 2018 cannabis conviction, a Class 2 felony in Illinois, is a
controlled-substance offense punishable by a prison term of more than one year. See
730 ILCS 5/5-4.5-35(a) (requiring prison term of “not less than 3 years and not more than
7 years” for Class 2 felony). Pairing this classification with Lister’s criminal history
category of IV, the court correctly calculated a range of 24 to 30 months in prison under
the policy statements in Chapter Seven of the Sentencing Guidelines. See U.S.S.G.
§ 7B1.4(a).
Counsel also explores whether Lister could raise any non-frivolous challenge to
the substantive reasonableness of his sentence. Lister would have to show that his
sentence was “plainly unreasonable,” overcoming the presumption that a term of
reimprisonment within the policy-statement range is reasonable. United States v. Jones,
774 F.3d 399, 403–04 (7th Cir. 2014). He could not meet that burden. The district court
took into account the sentencing factors in 18 U.S.C. § 3553(a) as required by § 3583(e).
It noted that, after his release, Lister did “exactly what [he was] supposed to do” by
No. 19-2086 Page 3
finding a job. But then he started “hanging around” with a convicted felon and went on
to deliver a controlled substance. The court expressed concern that Lister still had not
learned “to make good decisions” for himself. So, in light of Lister’s “perplexing
decision” to resume criminal activity, the court believed that another prison sentence
was “necessary.” It further explained that the 12 months of additional supervised
release (which does not exceed the maximum term authorized by 18 U.S.C. § 3583(h))
was “necessary to provide additional opportunities to address [Lister’s] correctional
and rehabilitative needs and the risks associated with [his] personal history and
characteristics.” Finally, we see no basis for Lister to argue that the district court abused
its discretion when it imposed the federal sentence consecutive to the undischarged
state sentence. See 18 U.S.C. § 3584(a). We therefore agree with counsel that it would be
frivolous to argue that any aspect of the sentence is unreasonable.
We GRANT the motion to withdraw and DISMISS the appeal.