United States v. Anthony Thomas

NONPRECEDENTIAL DISPOSITION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 July 13, 2010
Decided July 13, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-2906
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 96-CR-30054
ANTHONY THOMAS, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
Anthony Thomas was convicted of two counts of mailing threatening
communications. See 18 U.S.C. § 876. He was originally sentenced to 120 months’
imprisonment and 3 years of supervised release, but later resentenced to 115 months’
imprisonment and 3 years of supervised release because the district court declined to
group the counts under U.S.S.G. § 3D1.2(b). See United States v. Thomas, 155 F.3d 833, 840
(7th Cir. 1998). After Thomas violated the conditions of his supervised release by
possessing controlled substances and driving under the influence, the district court
revoked Thomas’s supervised release and ordered him to serve another 21 months’
imprisonment. Thomas appeals, but his appointed counsel has concluded that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Thomas
filed a motion to appoint counsel, which we construe as a response to counsel’s motion to
No. 09-2906 Page 2
withdraw. See C IR. R. 51(b). We limit our review to the potential issues identified in
counsel’s facially adequate brief and Thomas’s response. See United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002).
Counsel first considers whether Thomas could challenge the voluntariness of his
admitting, and stipulating to, a violation of his supervised release, or waiving his right to
an evidentiary hearing. In United States v. Wheaton, No. 09-3171, 2010 WL 2485749 (7th Cir.
June 22, 2010), which was decided after counsel filed his Anders brief, we instructed
appellate lawyers not to challenge the admissions underlying the revocation of supervised
release unless they are certain that their client wants to undo the revocation as well, see id.
at *1, and Thomas has not suggested that he wants to do so here. We have reviewed the
transcript nonetheless and confirm counsel’s conclusion that the record offers no basis to
conclude that Thomas’s admission, stipulation, or waiver was involuntary. At the
revocation hearing (at which he appeared with counsel) Thomas responded to inquiries by
the judge by admitting that he possessed marijuana, morphine, and cocaine, and
stipulating to the facts that supported the DUI charge. Given the explanation of the
charges and Thomas’s admissions, we agree with counsel that it would be frivolous for
Thomas to argue that any waiver of his rights under Rule 32.1 (such as the right to present
evidence, see FED. R. C RIM. P. 32.1(c)) was involuntary under the totality of the
circumstances. See United States v. LeBlanc, 175 F.3d 511, 516-17 (7th Cir. 1999). And once
Thomas admitted to possessing controlled substances, the record amply supported a
finding that he violated the terms of his supervised release and revocation was mandatory.
See 18 U.S.C. § 3583(g)(1); U.S.S.G. § 7B1.3(a)(1).
Next, counsel asks whether Thomas could challenge the length of the
reimprisonment. We will uphold a term of reimprisonment imposed on revocation of
supervised release unless it is “plainly unreasonable.” United States v. Kizeart, 505 F.3d 672,
674-75 (7th Cir. 2007). The district court adequately considered the nature of Thomas’s
offense and his mental health issues, the policy statements in the guidelines, see U.S.S.G. ch.
7, pt. B, and the sentencing factors set out in 18 U.S.C. § 3553(a). See United States v. Neal,
512 F.3d 427, 438 (7th Cir. 2008); United States v. Pitre, 504 F.3d 657, 664 (7th Cir. 2007). And
his 21-month term is within the statutory maximum of 2 years. See 18 U.S.C. § 3583(e)(3).
Thus we agree with counsel that any challenge to Thomas’s term of reimprisonment would
be frivolous.
In Thomas’s 51(b) response, Thomas argues that he received ineffective assistance of
counsel during the revocation proceedings. But a a claim of ineffective assistance generally
No. 09-2906 Page 3
should be presented in a collateral action under 28 U.S.C. § 2255. See Massaro v. United
States, 538 U.S. 500, 504-05 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.