USA v. Morris Brown
Filed Nonprecedential Disposition PER CURIAM. We GRANT the motion to withdraw and DISMISS the appeal. Joel M. Flaum, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6833730-2] [6848272-1]  [17-1472]
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 June 14, 2017
Decided June 16, 2017
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
UNITED STATES OF AMERICA,
MORRIS E. BROWN,
Appeal from the United States District
Court for the Western District of Wisconsin.
William M. Conley,
O R D E R
Morris Brown pleaded guilty in 2009 to possessing a firearm as a convicted felon,
see 18 U.S.C. § 922(g)(1). He was sentenced to 76 months’ imprisonment and 3 years’
supervised release. After his release from prison, Brown repeatedly violated the
conditions of his supervision. The district court gave him multiple chances to fully
comply with those conditions before revoking his supervised release and reimprisoning
him for a year and a day. Brown 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 grant counsel’s motion and dismiss this appeal.
Seventeen months into Brown’s supervision, his probation officer alerted the
district court that Brown had violated the conditions of his supervision by possessing
marijuana (numerous urine specimens had tested positive) and by missing required
drug tests and counseling appointments. The district court conducted a hearing and
found that Brown had possessed a controlled substance and also had tested positive for
marijuana more than three times in a year, both violations requiring revocation.
See 18 U.S.C. § 3583(g)(1), (3)–(4); U.S.S.G. § 7B1.3(a)(1). Still, the court reasoned, Brown
had “prospects for a remunerative job” and recently had “obtained permanent housing,”
so the court deferred deciding whether to revoke Brown’s supervision and gave him
another chance to comply with the conditions of his release.
Less than two months later, the probation officer informed the district court that
Brown had tested positive for marijuana twice more since the hearing and also had
failed to report contact with police. The court conducted another hearing but again put
off deciding whether to revoke Brown’s supervised release. Brown had asked to be
allowed to attend a residential drug‐treatment program, so the court continued the
hearing to allow him to do so. But soon after the hearing, Brown refused to go into
treatment and asked to appear again before the judge. Although dismayed with Brown’s
decision, the court noted that he currently was compliant and so again deferred deciding
if his supervised release should be revoked. The court ordered the parties to return two
months later to discuss Brown’s progress.
Before that date, the probation officer reported that Brown had committed a slew
of additional violations, including engaging in criminal conduct, using drugs and
alcohol, associating with convicted felons, lying to the probation officer, refusing to
participate in treatment for substance abuse, and leaving the judicial district without
permission. In fact, the probation officer related, the previous week Brown had been
arrested twice in one day for driving under the influence of alcohol. On one of those
occasions, he was with a felon, the same man in the car with him when he recently had
been stopped twice by police out of state. Brown had not told the probation officer about
these encounters with police, nor had he sought permission to leave the judicial district
or to skip two recent drug tests. The district court considered all of this conduct, as well
as Brown’s earlier violations, and heard from both sides about the appropriate penalty.
Before revoking Brown’s supervised release, the court restated its earlier findings that
Brown had possessed marijuana and had tested positive more than three times in a year.
The court did not impose further supervised release to follow the term of
Counsel’s Anders submission explains the nature of the case and addresses
potential issues that an appeal of this kind might be expected to involve. Brown opposes
counsel’s motion to withdraw. See CIR. R. 51(b). Because counsel’s analysis appears to be
thorough, we limit our review to the subjects he discusses plus the additional issue that
Brown, disagreeing with counsel, believes has merit. 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 Brown could argue that the district court abused
its discretion in revoking his supervised release. Although at the final hearing Brown
contested the nature of his recent police contacts and out‐of‐state travel, he previously
had admitted using marijuana over the course of his supervision, thus supporting the
finding that he possessed the drug, see United States v. Trotter, 270 F.3d 1150, 1153
(7th Cir. 2001). Brown also had admitted skipping drug tests and conceded testing
positive for marijuana more than three times in a year. He does not seek to retract those
admissions, so we agree with counsel that challenging the revocation would be
frivolous, since, given the particular violations, revocation was mandatory. See 18 U.S.C.
§ 3583(g)(1), (3)–(4); United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014).
Counsel next questions whether Brown could argue that his term of
reimprisonment is plainly unreasonable. The term will survive challenge if the district
court accurately calculated the reimprisonment range and considered the policy
statements in Chapter 7 of the sentencing guidelines, the pertinent factors in 18 U.S.C.
§ 3553(a), and Brown’s arguments in mitigation. See United States v. Brown, 823 F.3d 392,
394–95 (7th Cir. 2016). In this case, the district court correctly found that Brown had
committed a Grade B violation by possessing marijuana. See U.S.S.G. § 7B1.1(a)(2).
Simple possession of a controlled substance by a repeat drug offender, such as Brown, is
a Grade B violation because under federal law the offense exposes the offender to a term
of imprisonment exceeding one year. See 21 U.S.C. § 844(a); United States v. Wheeler,
814 F.3d 856, 857–58 (7th Cir. 2016); Trotter, 270 F.3d at 1151–52, 1154–56. The Grade B
violation coupled with Brown’s original criminal history category of III yielded a
reimprisonment range of 8 to 14 months. In selecting a term of 12 months and 1 day, the
district judge considered the Chapter 7 policy statements and discussed relevant
§ 3553(a) factors, particularly that Brown repeatedly had violated the conditions of his
supervision and squandered multiple chances to comply by continuing to use marijuana
and driving while intoxicated. This was the appropriate methodology, and a challenge
to the choice of punishment would be frivolous.
Finally, counsel considers whether Brown could claim that his lawyers’
representation during the revocation proceedings (current counsel is the second of two
lawyers appointed to represent Brown in the district court) was constitutionally
deficient. We note that a defendant facing revocation of supervised release does not have
a constitutional right to counsel if he 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 (1973);
United States v. Eskridge, 445 F.3d 930, 932 (7th Cir. 2006). Brown admitted using
marijuana and skipping drug tests but contested the accusations of leaving the judicial
district and drunk driving. Yet we need not resolve whether Brown’s constitutional right
attached. In any case, a claim of ineffective assistance generally should be reserved for
collateral review, where the defendant may develop a full record, and should not be
addressed in a case like this one where counsel on appeal also represented the defendant
for at least part of the proceedings in the district court. Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Brown identifies only one potential issue in response to counsel’s brief,
contending that the sentence for his underlying criminal conviction was improperly
calculated. But “[t]he proper method for challenging a conviction and sentence is
through direct appeal or collateral review, not a supervised release revocation
proceeding.” United States v. Flagg, 481 F.3d 946, 950 (7th Cir. 2007). Brown’s challenge to
his sentence for possessing a firearm as a felon comes too late and thus would be
frivolous to pursue in this appeal.
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
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