United States v. Samuel Potts

NONPRECEDENTIAL DISPOSITION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 March 24, 2010
Decided April 14, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 09-3301 & 09-3319
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. Nos. 09-CR-58 & 97-CR-205
SAMUEL J. POTTS, Rudolph T. Randa,
Defendant-Appellant. Judge.
ORDER
Samuel Potts robbed six banks in 1997. For those crimes he was sentenced within the
guidelines imprisonment range to a total of 150 months. Five weeks after his release from
custody, Potts struck again. He was caught and pleaded guilty to armed bank robbery, 18
U.S.C. § 2113(a), (d), but this time he faced a lower imprisonment range of 92 to 115 months.
The earlier § 2113 convictions were counted as a single sentence because those robberies
were charged and adjudicated together, see U.S.S.G. § 4A1.2(a)(2), and several more of
Potts’s convictions were now too old to count for any criminal-history points. The district
court was not satisfied with this outcome and sentenced Potts to 216 months. The court also
imposed a consecutive 24-month term upon revoking the term of supervised release Potts
was serving when he committed the seventh bank robbery. Potts has filed notices of appeal
Page 2
from the new conviction and sentence and from the revocation of supervised release, but his
appointed attorney contends that both appeals would be frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738 (1967). Potts disagrees with counsel’s assessment.
See CIR. R. 51(b).
Regarding the new conviction, in his plea agreement Potts waived the right to appeal
his sentence except as to claims that (1) the punishment exceeds the statutory maximum,
(2) the sentencing court relied on a constitutionally impermissible factor, and (3) his lawyer
was ineffective. Counsel gives no indication that Potts wants his guilty plea set aside, and
Potts complains in his Rule 51(b) response only about the prison sentence and not the plea
itself. Therefore, the appeal waiver stands, and we will enforce it on its terms. See Nunez v.
United States, 546 F.3d 450, 454 (7th Cir. 2008); United States v. Hare, 269 F.3d 859, 860-61 (7th
Cir. 2001). As far as this record shows, none of the exceptions to the waiver applies, and so
Potts has no ground to appeal his 216-month sentence.
Potts also has no basis to appeal the revocation of supervised release and term of
reimprisonment. The guilty plea to the bank robbery provided sufficient evidence for the
district court to conclude that Potts violated the condition of supervised release prohibiting
him from committing another criminal offense while on supervision. See 18 U.S.C.
§ 3583(d), (e)(3); Morrissey v. Brewer, 408 U.S. 471, 490 (1972). And we would not find the 24-
month term of reimprisonment to be plainly unreasonable. See United States v. Berry, 583
F.3d 1032, 1034 (7th Cir. 2009). The term, which the court deemed necessary to account for
Potts’s lengthy criminal record and his speed in reoffending, is below the range of 31 to 41
months recommended by the policy statements in the guidelines, see U.S.S.G. § 7B1.4, and is
within the statutory maximum, see 18 U.S.C. § 3583(e)(3) (setting two-year maximum on
revocation of supervised release imposed for Class C felony). Finally, Potts could not
challenge the court’s decision to run the term of reimprisonment consecutively to the new
sentence. The policy statements recommend this outcome, and the court adequately
explained why a longer sentence was necessary to protect the public from Potts. See
U.S.S.G. § 7B1.3(f); United States v. Gear, 577 F.3d 810, 811-12 (7th Cir. 2009).
Accordingly, we GRANT counsel’s motions to withdraw and DISMISS the appeals.