United States v. Byron Pierson ( 2022 )

NONPRECEDENTIAL DISPOSITION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 April 4, 2022
Decided April 5, 2022
Before
WILLIAM J. BAUER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3162
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:12CR00026-001
BYRON PIERSON,
Defendant-Appellant. James P. Hanlon,
Judge.
ORDER
Byron Pierson appeals the district court’s revocation of his supervised release.
But his appointed counsel believes that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738 (1967). We grant the motion to withdraw and
dismiss the appeal.
A defendant does not have an unqualified constitutional right to counsel in
revocation proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 790–91 (1973), so the Anders
No. 20-3162 Page 2
safeguards need not govern our review. Even so, our practice is to apply them.
See, e.g., United States v. Wheeler, 814 F.3d 856 (7th Cir. 2016). Because counsel’s brief
appears adequate and addresses the issues we would expect in an appeal of this kind, we
limit our review to the issues she raises in the brief as well as those that Pierson addresses
in his response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); CIR. R. 51(b).
This appeal has a complicated procedural history. In October 2017, Pierson began
a two-year term of supervised-release, one condition of which barred possession of
firearms. Five months into his term of supervision, he was arrested, and police found a
gun in his waistband. The probation office then sought to revoke his supervised release.
Shortly thereafter, federal prosecutors, relying on the conduct set forth in the
revocation petition, charged Pierson with being a felon in possession, in violation of
18 U.S.C. § 922(g)(1). Pierson was detained pending both the revocation proceedings
and federal prosecution.
Both proceedings bogged down. In the criminal case, Pierson’s attorney
requested and received six continuances. In the revocation proceedings, more than a
year passed before Pierson agreed to plead guilty to the new federal offense (18 CR 155)
and admit to the supervised-release violations (12 CR 26). No change-of-plea hearing
was held, however. Later, Pierson’s retained counsel moved to withdraw in both the
revocation case and the new federal case. A magistrate judge granted the motion and
appointed the federal defender to represent him in both the criminal prosecution and
the revocation proceedings. But, a few months later, the district judge allowed Pierson
to proceed pro se in the revocation case.
Pierson then moved to withdraw from the agreement in the revocation case and
to dismiss the petition to revoke supervision. He argued that his supervised-release
term had long since expired and could not be tolled because the delays in his
adjudication had been unreasonable.
The district judge allowed Pierson to withdraw from the agreement but refused
to dismiss the petition. Based on the tolling provision in 18 U.S.C. § 3583(i), the judge
determined that Pierson had been responsible for most of the delays—meaning the
delays were reasonable—and thus Pierson’s term of supervision had not expired.
A magistrate judge held a hearing on the petition to revoke supervised release
and recommended that the petition be granted. In her report, she recommended finding
that Pierson was guilty of possessing a firearm (among other violations), revoking his
No. 20-3162 Page 3
supervised release, and sentencing him to 18 months’ imprisonment with no additional
supervised release.
Pierson objected to the report, arguing that he was entitled to credit for his time
served in pre-revocation detention. The district judge overruled the objection, saying
that time-served credit was left to the Bureau of Prison’s discretion. The Bureau ended
up crediting Pierson for his pre-revocation detention.
In the criminal case, a jury found Pierson guilty of possessing a firearm as a
felon. The judge there sentenced him to 96 months’ imprisonment, to run concurrently
with the revocation sentence.
Counsel first considers—and properly rejects as frivolous—an argument that the
district court lacked authority to revoke his supervised release because the term had
been set to expire a year earlier. (His term, which had been set to expire in October 2019,
was not revoked until October 2020.) An ongoing supervised-release term is tolled
during a period of pretrial detention that is later credited as time served for a
subsequent, separate conviction. Mont v. United States, 139 S. Ct. 1826, 1829, 1832 (2019).
Pierson’s term of supervised release thus was tolled when he was detained for the new
criminal conduct, beginning in April 2018. Some of the time Pierson spent in pretrial
detention has been credited to his 18-month supervised-release sentence and some has
been credited to the sentence on the new federal offense.
Pierson points us to United States v. Block, 927 F.3d 978, 981–82 (7th Cir. 2019),
where we said that defendants’ supervised-release terms do not toll when they are
imprisoned only for a supervised-release revocation. But Block is inapposite because it
does not address the situation like Pierson’s, in which a defendant subsequently is
convicted of another crime.
Counsel also considers whether Pierson could raise a nonfrivolous challenge
regarding the 30-month delay between his arrest and his revocation hearing.
Rule 32.1(b)(2) of the Federal Rules of Criminal Procedure requires that a revocation
hearing, unless waived, be held “within a reasonable time.” But on the facts of this case,
a challenge to the timing of the hearing would be frivolous. One of the factors we would
rely on to assess the delay of revocation proceedings is the reason for the delay.
See United States v. Rasmussen, 881 F.2d 395, 398 (7th Cir. 1989). And here Pierson—often
through his lawyer—was responsible for most of the delay, having requested at least
half a dozen continuances or extensions of time. See United States v. Robey, 831 F.3d 857,
864 (7th Cir. 2016) (no violation where defense requested ten continuances, requested
No. 20-3162 Page 4
multiple changes in counsel, and entered and withdrew from a plea agreement);
Ashburn v. Korte, 761 F.3d 741, 752 (7th Cir. 2014) (same when defense requested six
continuances).
Pierson responds that these delays should not be attributed to him because it was
his attorney who requested the continuances without his knowledge or consent. But
Pierson, as the principal of his attorney, is charged with the delays his attorney caused,
even if his attorney did not consult him beforehand. Vermont v. Brillon, 556 U.S. 81, 90
(2009); Ashburn, 761 F.3d at 753.
Counsel also considers whether Pierson could raise a nonfrivolous challenge
under the Double Jeopardy Clause, given that his possession of a firearm served as the
basis for both his supervised-release revocation and subsequent criminal conviction.
But counsel properly rejects this challenge as frivolous because double jeopardy is not
implicated if a defendant’s supervised release is revoked for committing a crime and he
later is convicted of committing the same crime. United States v. Wyatt, 102 F.3d 241, 245
(7th Cir. 1996); accord Ford v. Massarone, 902 F.3d 309, 322 (D.C. Cir. 2018). Pierson tries
to distinguish Wyatt on grounds that his revocation sentence post-dated the expiration
of his supervised release, but this argument is beside the point because his supervised-
release term had not expired.
Counsel next asks whether Pierson could raise a nonfrivolous challenge to his
sentence or any legal or factual conclusions the magistrate judge made at the revocation
hearing. But counsel properly concludes that any such challenge would be frivolous
because Pierson waived it. Defendants waive appellate review of an issue from a
magistrate judge’s report and recommendation when they fail to make a similar
objection to the district judge. United States v. Gibson, 958 F.3d 661, 662–63 (7th Cir.
2020); FED. R. CRIM. P. 59(b)(2). Here, Pierson made only one objection to the magistrate
judge’s report, and the district judge overruled that objection. By not objecting to any
other aspect of the report (i.e., procedural errors, factual findings, the decision to
revoke, or the revocation sentence), Pierson waived any such challenges.
Finally, Pierson wishes to challenge the lawfulness of his pre-revocation
detention. But challenges to pretrial detention become moot when the detention ends—
either by release or conviction. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540–
41 (2018).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.