USA v. Donnie Purifoy
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED and the appeal is DISMISSED.. Frank H. Easterbrook, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge. [6773331-2] [6811140-1]  [16-1058]
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 January 11, 2017
Decided January 12, 2017
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States
District Court for the Northern District
of Illinois, Western Division.
DONNIE R. PURIFOY,
No. 01 CR 50010
Philip G. Reinhard,
Donnie Purifoy pleaded guilty in 2001 to distributing crack cocaine, see 21 U.S.C.
§ 841(a)(1), and was sentenced to 141 months’ imprisonment to be followed by 5 years’
supervised release. In 2013, while on supervised release for that crime, Purifoy again
was caught distributing crack. He pleaded guilty and in December 2015 was sentenced
to 30 months in prison. Based on this new conviction, the district court revoked
Purifoy’s supervised release and ordered him to serve an additional 37 months in
prison, all but 7 months to run consecutively to the new 30-month sentence. Purifoy has
filed a notice of appeal from the order revoking his supervised release (as part of a plea
agreement he waived the right to appeal the new conviction and sentence). But
Purifoy’s appointed attorney asserts that the appeal is frivolous and seeks to withdraw
under Anders v. California, 386 U.S. 738 (1967).
A defendant facing revocation of supervised release does not have a
constitutional right to counsel unless he challenges the appropriateness of revocation or
asserts substantial and complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S.
778, 790–91 (1973); United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015);
United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Purifoy did not do
either—in fact, by pleading guilty to the 2013 drug offense, he admitted committing a
new crime in violation of conditions of his supervised release. Thus, Anders does not
govern our review of counsel’s motion to withdraw, though we follow its safeguards to
ensure consideration of potential issues. See Pennsylvania v. Finley, 481 U.S. 551, 554–55
(1987); United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016); United States v. Wheeler,
814 F.3d 856, 857 (7th Cir. 2016). We invited Purifoy to comment on counsel’s motion,
but he has not responded. See CIR. R. 51(b). Counsel has submitted a brief that explains
the nature of the case and addresses the potential issues that an appeal of this kind
might be expected to involve. Because the analysis in that brief appears to be thorough,
we focus our review on the subjects that counsel discusses. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.
Counsel first evaluates whether Purifoy could argue that the district court, in
calculating his reimprisonment range under the sentencing guidelines, misstated his
criminal history category. Under the version of the guidelines in effect when Purifoy
was sentenced on his 2001 conviction, his criminal history category was IV. But as a
result of postsentencing amendments to the guidelines, his criminal history category
had dropped to III by the time he was sentenced for the 2013 drug offense. The lawyer
contemplated arguing that the lower criminal history category should have applied in
the revocation proceeding, thus lowering Purifoy’s reimprisonment range. Counsel
correctly recognizes, though, that this potential argument would be frivolous because at
a revocation hearing the court uses the criminal history category applicable when the
defendant was sentenced for the underlying offense, see U.S.S.G. § 7B1.4; United States v.
McClanahan, 136 F.3d 1146, 1149–50 (7th Cir. 1998), so his criminal history category
remained at IV.
Counsel next questions whether Purifoy could argue that the district court
should have lowered the classification of his 2001 drug conviction from a Class A felony
to a Class B felony, see U.S.S.G. § 7B1.1, based on changes to the sentencing guidelines
after the Fair Sentencing Act of 2010. See Pub. L. No. 111-220, 124 Stat. 2372. But this
potential claim likewise would be frivolous. Sanctions imposed on revocation of
supervised release are punishment for the underlying crime, see Johnson v. United States,
529 U.S. 694, 700–01 (2000), and so the law in effect at the time of that crime applies.
Purifoy’s conviction in 2001 involved 65 grams of crack, making it a Class A felony.
21 U.S.C. § 841(b)(1)(A)(iii) (2000); 18 U.S.C. § 3559(a)(1) (2000). The Fair Sentencing Act
is not retroactive, see United States v. Robinson, 697 F.3d 443, 444–45 (7th Cir. 2012), so it
cannot help Purifoy.
Finally, counsel considers whether Purifoy could argue that the district court
should have run his 37-month term of reimprisonment fully concurrently with his
sentence for the new drug conviction. But this argument also would be frivolous, as that
decision is ultimately left to the discretion of the sentencing judge, and the policy
statements from the Sentencing Commission actually favor consecutive sentences.
See U.S.S.G. § 7B1.3(f); United States v. Taylor, 628 F.3d 420, 424 (7th Cir. 2010).
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
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