USA v. George Mattingly
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED and the appeal is DISMISSED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6850821-2] [6888567-1]  [17-1736]
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 December 6, 2017
Decided December 6, 2017
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Central District of Illinois.
James E. Shadid,
O R D E R
George Mattingly pleaded guilty to failing to register as a sex offender after
previously being convicted of aggravated sexual abuse of a girl who was between
thirteen and sixteen years old. See 18 U.S.C. § 2250(a). The district court sentenced him
to 41 months’ imprisonment and 17 years’ supervised release. Approximately two years
into his term of supervised release, however, his probation officer petitioned the court
to revoke his release. At the revocation hearing, Mattingly admitted to violating two
supervised‐release conditions. First, he had contact with minors without the probation
officer’s prior approval; with his daughter’s permission, he went to her home to see his
grandchildren and, without her permission, he recorded videos of his grandchildren.
Second, he viewed pornographic websites with father‐daughter themed content. The
district judge imposed a 2‐year prison term—the statutory maximum—and 13‐year
term of supervised release, see 18 U.S.C. § 3583(e)(3), (k). Mattingly filed a notice of
appeal, but his appointed lawyer asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967).
First we note, though counsel did not, that there is no Sixth Amendment right to
counsel in proceedings to revoke supervised release, which are not criminal
prosecutions. United States v. Jones, 861 F.3d 687, 690 (7th Cir. 2017); United States v.
Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015); see Gagnon v. Scarpelli, 411 U.S. 778, 790
(1973). In limited circumstances that are not present here, the Due Process Clause of the
Fifth Amendment requires the assistance of counsel. See Boultinghouse, 784 F.3d at 1171.
Mattingly concedes that he violated the conditions of supervised release, and he does
not offer any defense or present substantial and complex grounds in mitigation.
See Gagnon, 411 U.S. at 790; United States v. Eskridge, 445 F.3d 930, 931–32 (7th Cir. 2006).
Thus we do not need to observe the Anders safeguards when reviewing his attorney’s
motion to withdraw. Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987); United States v.
Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
Still, our practice is to apply the Anders framework even in the revocation
context. See Wheeler, 814 F.3d at 857. Mattingly has not responded to counsel’s motion to
withdraw. See CIR. R. 51(b). Counsel’s brief explains the nature of the case and addresses
the issues that an appeal of this kind might be expected to involve; his analysis appears
adequate so we limit our review to the subjects he 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 tells us that Mattingly does not want to challenge the revocation of
his supervision, and thus counsel appropriately avoids discussing whether Mattingly’s
admissions to the charged violations were knowing and voluntary. See Wheeler, 814 F.3d
at 857; United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel considers whether Mattingly could challenge the calculated policy‐
statement range, but correctly concludes this challenge would be frivolous. Because
Mattingly did not object to the range considered at sentencing, we would review only
for plain error. United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). The probation
officer who prepared the violation memorandum determined that Mattingly committed
a grade C violation and had a criminal history category of VI; from this, the officer
concluded that the appropriate range under the policy statement was 8 to 14 months.
See U.S.S.G. §§ 7B.1.(a)(3), 7B1.4(a). The government did not object, but noted that
Mattingly may have committed a more serious grade B violation because recording
videos of his grandchildren without their mother’s consent could be a felony under
state law. See 720 ILCS 5/11‐24(b)(3); U.S.S.G. § 7B.1.(a)(2). The range of imprisonment
would then be 21 to 27 months. See U.S.S.G. § 7B1.4(a). If the judge erred, it was by
considering too low of a range, and so Mattingly could not establish any prejudice.
Counsel next considers, but rightly rejects, challenging the reasonableness of the
reimprisonment term. He notes that Mattingly received the statutory maximum term
and assesses whether the judge adequately considered Mattingly’s principal argument
in mitigation: that Mattingly’s poor health warrants a shorter sentence. The judge
considered Mattingly’s health, but concluded that his various medical needs “can be
addressed at the Bureau of Prisons . . . without the distraction of cell phone viewing or
videotaping of minor children.” The judge also said he would recommend that
Mattingly serve his time in a medical facility. Further, as required by 18 U.S.C. § 3583(e),
the judge considered the sentencing factors in § 3553(a). See Brown, 823 F.3d at 394. He
cited instances of Mattingly’s repeated disregard for the law and the concerning nature
of his noncompliance: he had unapproved contact with his grandchildren and video
recorded them, and he viewed pornography portraying sexual activity between fathers
and daughters. He concluded the sentence was needed to deter further misconduct and
protect the public. Because the judge considered the statutory factors and Mattingly’s
mitigating argument, it would be frivolous to argue that the two‐year term of
imprisonment is unreasonable.
Finally, counsel evaluates whether he could bring a substantive challenge to any
conditions of supervised release imposed at revocation. Counsel concludes that
challenging any condition would be frivolous because this court has previously
approved “virtually all of the conditions imposed.” That is not enough of a reason,
because conditions of supervised release, as part of the entire sentence, always merit
close attention. See United States v. Thompson, 777 F.3d 368, 373 (7th Cir. 2015). We would
review for plain error a challenge to conditions that the defendant did not object to
when they were imposed. United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016).
(Mattingly arguably waived, and did not merely forfeit, the argument because he stated
that he had no objections to the conditions, but we give him the benefit of the doubt.)
Counsel does not examine any particular condition, but we note that we have
criticized as overly broad a condition prohibiting a defendant from having any contact
with minors without the presence of an adult who is aware of the defendant’s history
and who has been approved by the probation officer. Thompson, 777 F.3d at 376. But the
analogous condition imposed on Mattingly excepts contact with minors “in the course
of normal commercial business” and contact that is “unintentional and incidental.”
Thus, the condition is narrower than what we criticized in Thompson. See United States v.
Warren, 843 F.3d 275, 283 (7th Cir. 2016) (distinguishing between the “no‐contact
condition” in Thompson and a condition that “exempt[s] incidental contact with, for
example, waitresses or cashiers who could be minors”). (In any case, we have no reason
to believe that Mattingly wants to challenge the condition; neither counsel nor
Mattingly raises the issue. See Wheeler, 814 F.3d at 858.) Further, the court adopted the
probation officer’s reasons for imposing the condition: Mattingly’s prior sexual offense,
his continued disregard his supervised release conditions, and his history of
videotaping minors. A reasonableness challenge would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
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