USA v. Eugene Moore
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED and the appeal is DISMISSED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. [6816377-1]  [16-2897]
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 February 2, 2017
Decided February 3, 2017
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 03 CR 743-1
Ronald A. Guzmán,
Eugene Moore pleaded guilty in 2003 to possessing cocaine base with the intent
to distribute it in violation of 21 U.S.C. § 841(a)(1) and was sentenced to 135 months’
imprisonment plus 5 years’ supervised release. His sentence was later reduced to
120 months under 18 U.S.C. § 3582(c) based on a recent amendment to the Sentencing
Guidelines that lowered the base offense levels applicable to cocaine-base offenses.
Four years into his supervised-release term, the government sought revocation,
see 18 U.S.C. § 3583(e), based on a violation of one of his release conditions: committing
another state crime when he battered a police officer. After a hearing, the court revoked
Moore’s supervised release and sentenced him to the bottom of a policy-statement
range of 30 to 37 months’ imprisonment (based on Moore’s criminal history category of
III and his commission of a Grade A violation), to run consecutively to his state sentence
of 5 years. Moore filed a notice of appeal, but his appointed attorney asserts that the
appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967).
We note that there is no constitutional right to counsel in revocation proceedings
when, as here, the defendant admits violating the conditions of his supervision and
neither challenges the appropriateness of revocation nor 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, 1171–72 (7th Cir. 2015); United States v.
Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Thus we are not compelled to apply the
Anders safeguards, see Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987); United States v.
Wheeler, 814 F.3d 856, 857 (7th Cir. 2016), but we do so as a matter of practice, and
consequently invited Moore to file a response under Circuit Rule 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. The analysis in the brief
appears to be thorough, so 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. 1996).
Counsel first considers whether Moore could argue that the district court
improperly calculated his policy-statement range for reimprisonment (30–37 months)
because the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010), reclassified
his underlying offense of distributing 173 grams of cocaine base from a Class A felony
to a Class B felony. See 21 U.S.C. § 841(b)(1)(B)(iii); 18 U.S.C. § 3559(a)(2) (defining
classes of felonies). We agree with counsel that this argument would be frivolous
because revocation sanctions are part of the penalty for the underlying offense and thus
require district courts to apply the law in effect at the time of the original crime.
See Johnson v. United States, 529 U.S. 694, 700–01 (2000). Moore’s 2003 drug crime was a
Class A felony when he was sentenced, and the Fair Sentencing Act does not reduce the
penalties for those sentenced before the law changed. See Dorsey v. United States, 132 S.
Ct. 2321, 2335 (2012); United States v. Foster, 706 F.3d 887, 887–88 (7th Cir. 2013).
Counsel next discusses, but rightly rejects as frivolous, an argument that the
terms of reimprisonment and supervised release are unlawful or plainly unreasonable.
The district court appropriately applied the factors listed in 18 U.S.C. § 3553(a),
highlighting Moore’s history of repeated drug peddling, the seriousness of the offense,
and the need to afford adequate deterrence and protect the public from his further
crimes (as the district court put it, Moore “has been convicted, he came out, he was
given a chance, and he’s now back before me again, and we’re wasting valuable
resources and time dealing with his aberrant behavior”). Further, the statute for the
underlying conviction authorized a term of up to 5 years’ supervision, so the 24-month
term of supervised release that the judge imposed upon revocation was within the
acceptable range. See 18 U.S.C. § 3583(h); U.S.S.G. § 7B1.3(g)(2). Based on the district
court’s review of Moore’s criminal history and characteristics, we do not consider the
new term of supervised release unreasonable.
Counsel does not mention two standard conditions of supervised release that the
district court imposed and that we have criticized as being unconstitutionally vague.
First, there is ambiguity in the release condition that Moore must notify “third parties of
risks that may be occasioned by the defendant’s criminal record or personal history or
characteristics,” since no definition is given for “personal history” or “characteristics” or
the sort of “risks” that must be disclosed to unspecified “third parties.” United States v.
Bickart, 825 F.3d 832, 841 (7th Cir. 2016) (internal quotation omitted). Second, the
condition prohibiting Moore from leaving the judicial district improperly imposes strict
liability because it fails to include a scienter requirement. See United States v. Brown,
823 F.3d 392, 395 (7th Cir. 2016); Wheeler, 814 F.3d at 858.
But we have no reason to believe that Moore wishes to challenge these
conditions, as counsel has not identified them as potential issues and Moore has not
responded to our invitation to comment on counsel’s brief. And if Moore believes these
conditions to be vague, unclear, or burdensome after he begins serving the term of
supervised release, he is free to seek modification under 18 U.S.C. § 3583(e)(2).
See Brown, 823 F.3d at 395; United States v. Neal, 810 F.3d 512, 518–20 (7th Cir. 2016).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
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