United States v. Kevin Pulley ( 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NONPRECEDENTIAL DISPOSITION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 30, 2020
Decided June 30, 2020
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 20-1008
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 06-CR-40057-JPG-7
KEVIN PULLEY, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
After serving 80 months in prison for conspiring to manufacture and distribute
methamphetamine, see 21 U.S.C. §§ 841(a), 846, Kevin Pulley began a five-year term of
supervised release. Four years in, Pulley’s probation officer petitioned to revoke his
supervised release for, among other violations, using methamphetamine and marijuana,
failing to notify his probation officer that police had questioned him, and failing to
submit timely monthly reports. The district court delayed Pulley’s revocation hearing
so he could complete a residential drug-treatment program. But after Pulley completed
the program, his probation officer amended the petition to add additional allegations of
methamphetamine use, to which Pulley later admitted. The district court revoked
Pulley’s supervised release, see 18 U.S.C. § 3583(e),(g), and sentenced him to 24 more
months in prison to be followed by 36 months of supervised release. Pulley filed a
No. 20-1008 Page 2
notice of appeal, but his appointed counsel asserts the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Pulley did not respond to
counsel’s motion. See CIR. R. 51(b).
At the outset we note that a defendant facing revocation of his supervised release
has no constitutional right to counsel if he concedes the alleged violations without
asserting a substantial argument against revocation or one that would be difficult to
develop without counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 789–90 (1973);
United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Nevertheless, our practice
has been to apply the Anders safeguards. See United States v. Wheeler, 814 F.3d 856, 857
(7th Cir. 2016). Counsel’s brief explains the nature of the case and addresses issues that
an appeal of this kind might involve. Because counsel’s analysis appears thorough, we
limit our review to the subjects she discusses. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
Counsel first discusses whether Pulley could challenge the revocation of his
supervised release, but this discussion was unnecessary. Because Pulley—as counsel
tells us—wants to challenge only his sentence and not the grounds for revocation,
counsel need not have discussed any potential challenge to the revocation, including
whether his admissions to the violations were knowing and voluntary. See United States
v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010); United States v. Knox, 287 F.3d 667, 670–72
(7th Cir. 2002).
Counsel next considers whether Pulley could identify procedural errors in the
revocation proceedings, but correctly concludes that any procedural challenge would be
frivolous. The district court complied with Federal Rule of Criminal Procedure 32.1 by
ensuring that Pulley received written notice and evidence of his alleged violations, that
he was represented by counsel, and that he was given an opportunity to make a
statement and present mitigating evidence. See United States v. Jones, 774 F.3d 399, 403
(7th Cir. 2014).
Counsel then addresses whether Pulley could make any nonfrivolous challenge
to his sentence and rightly concludes that he could not. The court acknowledged
Pulley’s arguments in mitigation, specifically that he had been employed since his
release from prison and that his relapse had been prompted by the stress of financially
supporting and caring for his mentally-ill wife. The court properly calculated a
guidelines range of 8 to 14 months’ imprisonment based on Pulley’s Class B violation
and criminal history category of III. Pulley also could not challenge the substantive
reasonableness of his sentence because the court adequately considered the sentencing
factors set forth in 18 U.S.C. § 3553(a). The court justified an above-guideline sentence of
No. 20-1008 Page 3
24 months as necessary to protect the public and promote respect for the law,
see 18 U.S.C. § 3553(a)(2)(a), given Pulley’s continued use of methamphetamine even
after completing a drug treatment program—for which the court had agreed to delay
his revocation hearing.
Finally, as counsel rightly points out, any claim of ineffective assistance of
counsel would best be raised on collateral review, where a record could be made to
support it. Massaro v. United States, 538 U.S. 500, 504–05 (2003); see United States v. Stokes,
726 F.3d 880, 897–98 (7th Cir. 2013).
For these reasons, we GRANT the motion to withdraw and DISMISS the appeal.