United States v. Ellis Lard

NONPRECEDENTIAL DISPOSITION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 25, 2013
Decided April 25, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3314
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 94-40009-001
ELLIS J. LARD, Sara Darrow,
Defendant-Appellant. Judge.
ORDER
In 1994 Ellis Lard pleaded guilty to being a felon in possession of a firearm, see 18
U.S.C. § 922(g)(1), and was sentenced under the Armed Career Criminal Act to 210 months’
imprisonment and five years’ supervised release. After his release in 2010, he was arrested
for selling cocaine; the district court revoked his supervised release and ordered Lard
reimprisoned for five years, the statutory maximum. Id. § 3583(e)(3). He filed a notice of
appeal, but his newly appointed lawyer contends that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Lard has not responded to
counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified
in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th
Cir.2002).
No. 12-3314 Page 2
Counsel first considers whether Lard could challenge his reimprisonment term as
substantively unreasonable. See Gall v. United States, 552 U.S. 38, 46 (2007). We agree with
counsel that any such challenge would be frivolous. The district court’s decision is subject
to “the narrowest judicial review of judgments we know,” see United States v. Kizeart, 505
F.3d 672, 675 (7th Cir. 2007), and we presume that Lard’s term is reasonable because it falls
within the range suggested by the sentencing commission’s policy statement on revocation
(51 to 60 months based on a Grade A violation that occurred while on release for a Class A
felony, a criminal-history category of VI, capped by a five-year statutory maximum.)
See U.S.S.G. § 7B1.4; Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Curtis, 645
F.3d 937, 943 (7th Cir. 2011). Counsel has not identified any ground to rebut the
presumption that this term is reasonable.
Counsel next considers whether Lard could challenge the adequacy of the district
court’s explanation in rejecting his argument at sentencing that his cognitive
deficiencies—he has a relatively low I.Q score—mitigate the seriousness of his crimes. But
an appeal on this ground would also be frivolous. The court in fact acknowledged Lard’s
“functioning issues as [they] relate to . . . mental health as well as . . . educational and
mental abilities,” and found that “despite your apparent low functioning, you have a high
propensity to commit crimes; and I have to balance your need for rehabilitation with the
public’s need to be protected from future crimes by you.” The court also observed that
Lard’s prior imprisonment had done little to deter him from lawbreaking—he committed
his drug offenses mere months after being released. This explanation is more than sufficient
for purposes of satisfying the factors set forth in 18 U.S.C. § 3553(a), as incorporated by
§ 3583(e). See United States v. Neal, 512 F.3d 427, 438–39 (7th Cir. 2008).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.