USA v. Mark Harder

Filing

Filed Nonprecedential Disposition PER CURIAM. Counsel s motion to withdraw is GRANTED, and the appeal is DISMISSED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Daniel A. Manion, Circuit Judge. [6824794-2] [6840676-1] [6840676] [17-1196]

Case: 17-1196

Document: 14
Filed: 05/12/2017
Pages: 2
NONPRECEDENTIAL DISPOSITION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 May 12, 2017
Decided May 12, 2017
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 17-1196
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Appeal from the United States District
Court for the Western District of Wisconsin.

v.

No. 14-cr-67-jdp-1

MARK HARDER, also known as MARK
JAMES,
Defendant-Appellant.

James D. Peterson,
Chief Judge.

ORDER
Mark Harder pleaded guilty in 2014 to failing to register as a sex offender,
see 18 U.S.C. § 2250, and was sentenced to 2 years’ imprisonment and 5 years’
supervised release. Harder had completed his prison term and was on supervised
release when, in 2017, the government sought revocation, see 18 U.S.C. § 3583(e),
alleging that Harder violated the conditions of his release by associating with a minor
without approval of his probation officer, lying to his probation officer, and possessing
drug paraphernalia. After Harder admitted the violations, the district court revoked his
supervised release and imposed another year of imprisonment and 3 years’ supervised
release. Harder 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).

Case: 17-1196
No. 17-1196

Document: 14

Filed: 05/12/2017

Pages: 2
Page 2

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 (7th Cir. 2015); United States v.
Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Thus we are not compelled to use the
Anders safeguards for our review of counsel’s motion to withdraw, though we follow
that decision as a matter of policy to ensure consideration of potential issues.
See Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987); United States v. Wheeler, 814 F.3d
856, 857 (7th Cir. 2016). Harder opposes counsel’s motion to withdraw. See CIR. R. 51(b).
Because counsel’s brief appears to be thorough and addresses issues that an appeal of
this kind might be expected to involve, we limit our review to the subjects that counsel
discusses, along with the contentions in Harder’s response. 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 Harder could challenge the revocation. But
Harder admitted that he violated the conditions of his release during the revocation
proceeding, so any argument that the revocation was unfounded would be frivolous.
See 18 U.S.C. § 3583(e)(3) (allowing revocation when court finds by a preponderance of
the evidence that defendant violated a condition of release); United States v. Flagg, 481
F.3d 946, 948–51 (7th Cir. 2007) (affirming revocation when defendant admitted
violations). In his Rule 51(b) response, Harder argues that his due-process rights were
violated because no one investigated his justifications for the violations. But that
contention is belied by his colloquy with the district judge, who ensured that Harder
understood the proceedings, the alleged violations, and the possible penalties. See FED.
R. CRIM. P. 32.1(a)(3); United States v. LeBlanc, 175 F.3d 511, 515–17 (7th Cir. 1999).
Counsel also considers challenging Harder’s term of reimprisonment as plainly
unreasonable, but rightly concludes that this claim would be frivolous. The term
imposed is below the statutory maximum. See 18 U.S.C. §§ 3583(e)(3), (k). Also, the
district court applied the factors listed in 18 U.S.C. § 3553(a), taking into account
Harder’s history of repeatedly failing to comply with the terms of his supervision, the
need to deter him from future misconduct, and the need to protect the public.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.