United States v. Derrick Shannon

NONPRECEDENTIAL DISPOSITION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 19, 2013
Decided April 19, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3296
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 4:98CR40124-003
DERRICK SHANNON, J. Phil Gilbert,
Defendant-Appellant. Judge.
ORDER
In 1999 Derrick Shannon was convicted of drug crimes, see 21 U.S.C. §§ 841(a)(1),
846, and sentenced to a total of 168 months’ imprisonment to be followed by 5 years of
supervised release. He began serving the term of supervised release in January 2009, but
nine months later that term was revoked for driving under the influence. Shannon was
reimprisoned for another 24 months to be followed by 36 months of supervised release. He
began serving the new term of supervised release in June 2011.
Over the course of the next year, Shannon committed a series of violations,
including using alcohol and missing counseling classes. Modifications requiring him to be
tested for alcohol use and to live in a halfway house did not quell the infractions, and in
No. 12-3296 Page 2
August 2012 his probation officer again moved to revoke Shannon’s supervised release.
Shannon had tested positive for alcohol use (he says from mouthwash) and committed
other violations, including on one occasion being absent from the halfway house without
permission. Shannon waived his right to contest revocation and admitted each violation.
The district court revoked his supervised release and imposed 6 months’ reimprisonment
to be followed by a term of 36 months’ supervised release. See 18 U.S.C. §§ 3583(e)(3), (h)
(1994 & Supp. IV 1998). Shannon has filed a notice of appeal, but his appointed attorney
believes the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S.
738 (1967). Shannon has not responded to counsel’s motion. See CIR. R. 51(b). We review
only the potential issues identified in counsel’s facially adequate brief. See United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel informs us that Shannon wishes to challenge the revocation, see United
States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010), and so the lawyer discusses whether
“Shannon entered a knowing and voluntary plea.” Counsel analyzes that question by
looking to the requirements for guilty pleas under Federal Rule of Criminal Procedure 11.
But a waiver of the right to contest the revocation of supervised release is governed by
Federal Rule of Criminal Procedure 32.1 and need only be knowing and voluntary under
the totality of the circumstances; Rule 11 doesn’t apply. See United States v. LeBlanc, 175 F.3d
511, 516–17 (7th Cir. 1999); United States v. Hodges, 460 F.3d 646, 652 (5th Cir. 2006); United
States v. Farrell, 393 F.3d 498, 500 (4th Cir. 2005). Moreover, as counsel points out, the judge
engaged Shannon in a lengthy colloquy, which satisfies us that Shannon’s admissions were
knowing and voluntary. See LeBlanc, 175 F.3d at 516–17. The judge explained the nature of
the allegations, told Shannon the consequences of admitting their truth (including that he
was giving up various rights, including the rights to present witnesses and confront
adverse witnesses, see FED. R. CRIM. P. 32.1(b)(2)), and ensured that no one had induced him
to admit the violations.
Counsel also considers whether Shannon could argue that his 6-month term of
reimprisonment is plainly unreasonable. See United States v. Berry, 583 F.3d 1032, 1034 (7th
Cir. 2009); United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007). Counsel concludes that
any challenge to the length of the term would be frivolous, and we agree. Six months is
well below the 60-month statutory maximum. See 18 U.S.C. §§ 3559(a)(1), 3583(e)(3) (1994 &
Supp. IV 1998); 21 U.S.C. § 841(b)(1)(A)(iii) (1994 & Supp. IV 1998). The district court
calculated a policy-statement range of 6 to 12 months’ reimprisonment based on Shannon’s
criminal history category of IV and Grade C violations of his supervised release.
See U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a); United States v. Snyder, 635 F.3d 956, 960 (7th Cir. 2011).
The court considered counsel’s argument in mitigation that a term at the low end was
appropriate based on Shannon’s recent employment and independent living. The judge
accepted this argument and took into account the sentencing factors in 18 U.S.C. § 3553(a),
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telling Shannon that “you are holding down two jobs, have your own place, I think you can
make it,” but that “you just gotta quit taking a step backwards when you move forward.”
This is all the judge was required to do to revoke Shannon’s supervised release and impose
a term of reimprisonment. See United States v. Neal, 512 F.3d 427, 438–39 (7th Cir. 2008).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.