NONPRECEDENTIAL DISPOSITION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 4, 2011
Decided May 4, 2011
Before
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3435
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:01CR40030‐005‐GPM
SULLIVAN R. YOUNG G. Patrick Murphy,
Defendant‐Appellant. Judge.
No. 10‐3845
Appeals from the United States District
UNITED STATES OF AMERICA, Court for the Southern District of Illinois.
Plaintiff‐Appellee,
No. 4:01CR40030‐002‐GPM
v.
G. Patrick Murphy,
MICHAEL L. MILLER, Judge.
Defendant‐Appellant.
Nos. 10‐3435 & 10‐3845 Page 2
O R D E R
In 2001 Sullivan Young and Michael Miller participated in a scheme to distribute
crack cocaine and, with several other participants, were charged with offenses related to
their participation. Both Young and Miller pleaded guilty to conspiracy to possess with
intent to distribute crack cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and after serving their
sentences, were released to supervision. Young violated the terms of his supervised release
by robbing a bank and was resentenced to an additional 36 months’ imprisonment. Miller
violated the terms of his supervised release by possessing bags of Oxycodone and drug
paraphernalia, and was resentenced to an additional 24 months’ imprisonment. We
consolidated their appeals, and the appointed lawyer for each defendant seeks permission
to withdraw on the ground that her client’s appeal is frivolous. See Anders v. California, 386
U.S. 738 (1967). Miller, but not Young, has accepted our invitation to comment on counsel’s
facially adequate submissions. See CIR. R. 51(b). We limit our review to the potential issues
discussed by counsel and Miller. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir.
2002).
Both lawyers begin by considering whether it would be frivolous to argue that the
district court erred in revoking supervised release. But neither defendant has said or
suggested that he wants the revocation set aside, and in such situations counsel should not
explore possible challenges to a revocation. See United States v. Wheaton, 610 F.3d 389, 390
(7th Cir. 2010).
Both lawyers next ask whether the defendants could challenge the length of their
reimprisonment. But counsel correctly conclude that such a challenge would be frivolous
because the district court applied the proper methodology in setting the sentences. See
United States v. Neal, 512 F.3d 427, 438‐39 (7th Cir. 2008). With respect to Young, the district
court assessed his guidelines range of 15 to 21 months based on a criminal history category
of II and a ”Grade A” supervised‐release violation for the bank robbery. See U.S.S.G.
§§ 7B1.1(a)(2), 7B1.4(a). Although the court gave Young an above‐range sentence, the court
adequately explained its decision by reiterating the seriousness of the bank robbery, the
traumatic consequences for Young’s victims given the use of a gun, and the short passage of
time between Young’s release and his offense. 18 U.S.C. § 3553(a)(1). We would not deem
the term of reimprisonment plainly unreasonable. See Neal, 512 F.3d at 438‐39 (7th Cir.
2008); See United States v. Kizeart, 505 F.3d 672, 674‐75 (7th Cir. 2007).
With respect to Miller, the court assessed his guidelines range of 8 to 14 months
based on a criminal history category of III and a ”Grade B” supervised‐release violation for
drug possession. See U.S.S.G. §§ 7B1.1(a)(2), 7B1.4(a). Although the court gave Miller an
above‐range sentence, the court adequately explained its decision by noting that he had
been caught with drugs and drug paraphernalia, 18 U.S.C. § 3553(a)(1), and by voicing its
Nos. 10‐3435 & 10‐3845 Page 3
concern that Miller would not successfully complete his supervised release, id. § 3553(a)(2).
We would not consider his term of reimprisonment plainly unreasonable either.
In his Rule 51(b) response, Miller asks whether the district court at sentencing
erroneously took into account the drugs and drug paraphernalia that law enforcement
discovered in December 2010. His reasoning is difficult to follow, but Miller contends that
the court should not have considered the evidence because, he believes, these items were
not listed in the petition to revoke his supervised release. Miller is mistaken about the
listing; his December 2010 offense of possessing drugs and drug paraphernalia is the first
item listed in the petition to revoke.
Finally, both lawyers consider whether their clients could possibly argue ineffective
assistance. But neither lawyer identifies a shortcoming on which to premise a claim, and
since each lawyer also represented her client in the district court, it would have been
inappropriate to impugn her own performance. See United States v. Rezin, 322 F.3d 443, 445
(7th Cir. 2003). Thus the general rule that claims of ineffective assistance are best pursued
on collateral review, Massaro v. United States, 538 U.S. 500, 504‐05 (2003); United States v.
Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005), is all the more sensible in these cases.
The motions to withdraw are GRANTED, and these appeals are DISMISSED.