NONPRECEDENTIAL DISPOSITION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 February 24, 2014*
Decided February 27, 2014
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1536
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:00‐cr‐40101‐06
TYREE NEAL, SR., J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Tyree Neal pleaded guilty in 2001 to distribution of crack cocaine and conspiracy
to possess crack cocaine with intent to distribute. See 21 U.S.C. §§ 841(a)(1), 846. The district
*
This successive appeal has been submitted to the original panel under Operating
Procedure 6(b).
No. 13‐1536 Page 2
court sentenced him to 137 months’ imprisonment and 36 months’ supervised release.
Among the standard conditions of supervised release were prohibitions on drug use and
excessive alcohol consumption. In November 2012, however, after beginning his
supervised release, Neal tested positive for marijuana. Two months later, he tested positive
for cocaine. Neal admitted these violations, along with several others, including lying to
his parole officer about his drug use. The district court revoked his supervised release and
sentenced him to an additional prison term of 18 months, to be followed by a new
36‐month term of supervised release. Neal has filed a notice of appeal, but his appointed
lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v.
California, 386 U.S. 738, 744 (1967). Neal opposes the motion. See CIR. R. 51(b). We review
only the potential issues identified in counsel’s facially adequate brief and in Neal’s
response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
In his Anders submission, counsel first represents that Neal does not want to
challenge the revocation of his supervised release, and Neal’s response does not suggest
otherwise. Counsel thus need not have explored the validity of the revocation itself.
See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010); United States v. Knox, 287 F.3d
667, 670–72 (7th Cir. 2002).
Counsel considers whether Neal could challenge the length of his sentence, but the
lawyer appropriately rejects this potential argument as frivolous. Neal’s 18‐month prison
term is within the recommended reimprisonment range in U.S.S.G. § 7B1.4. And, as counsel
recognizes, the district court considered the sentencing factors in 18 U.S.C. § 3553(a), as
well as defense counsel’s arguments about Neal’s family troubles and lack of drug
treatment. After assessing the sentencing factors and counsel’s arguments in mitigation,
the court nonetheless concluded that Neal’s efforts to conceal his drug use from his parole
officer warranted additional punishment. Given these circumstances, it would be pointless
to argue that the within‐guidelines reimprisonment term is plainly unreasonable, the
applicable standard. See United States v. Berry, 583 F.3d 1032, 1034 (7th Cir. 2009); United
States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007).
In his pro se response, Neal contends that the district court erred by imposing a
combination of imprisonment and supervised release totaling 54 months, which is longer
than the original term of supervised release that the court imposed in 2001. But this
argument is based on an older version of 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V), which
limited the revocation sentence (reimprisonment plus supervised release) to a total no
greater than the term of supervised release initially imposed by the court for the
underlying offense. See Johnson v. United States, 529 U.S. 694, 704–06 (2000); United States
No. 13‐1536 Page 3
v. Russell, 340 F.3d 450, 454 (7th Cir. 2003). A 1994 amendment to 18 U.S.C. § 3583, however,
changed the language of subsection (e)(3) and added a new subsection (h); both subsections
now state that a combined sentence of imprisonment and supervised release imposed after
revocation may not exceed “the term of supervised release authorized by statute for the offense
that resulted in [the initial] term of supervised release.” 18 U.S.C. § 3583(e)(3), (h) (emphasis
added); see Johnson, 529 U.S. at 705. Neal was initially sentenced in 2001, after the
amendment took effect.
The new sentence complies with the amended statute. Every circuit that has
addressed the 1994 amendment has concluded that the statute now allows a district court
to impose a revocation sentence longer than the original term of supervised release.
See United States v. Spencer, 720 F.3d 363, 365–66 (D.C. Cir. 2013); United States v. Lamirand,
669 F.3d 1091, 1094–97 (10th Cir. 2012); United States v. Williams, 675 F.3d 275, 280 (3d Cir.
2012); United States v. Hampton, 633 F.3d 334, 339–41 (5th Cir. 2011); United States v. Palmer,
380 F.3d 395, 398 (8th Cir. 2004) (en banc); United States v. Pla, 345 F.3d 1312, 1314–15 (11th
Cir. 2003). (Our circuit’s only decision on the subject, United States v. Sullivan, 327 F. App’x
643, 645 (7th Cir. 2009), though nonprecedential, is consistent with those from our sister
circuits.) Neal does not suggest a reason why these decisions are wrong.
Under the amended statute, the upper boundary now is not the original term of
supervised release that the court imposed for the initial offense, but the statutory
maximum term of supervised release for that offense. The maximum supervised‐release
term for Neal’s initial drug offenses is life. See 21 U.S.C. § 841(b)(1)(C); United States v.
Rogers, 382 F.3d 648, 652 (7th Cir. 2004); United States v. Shorty, 159 F.3d 312, 315–16 n.6 (7th
Cir. 1997); United States v. Sanchez‐Gonzalez, 294 F.3d 563, 566–67 (3d Cir. 2002). It would
therefore be frivolous to argue that the district court erred by imposing 36 months’
supervised release on top of 18 months’ reimprisonment.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.