NONPRECEDENTIAL DISPOSITION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 October 17, 2013
Decided December 2, 2013
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13‐1874
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 11‐CR‐34‐WMC
JOHN J. MILLER,
Defendant‐Appellant. William M. Conley,
Chief Judge.
O R D E R
The district court revoked John Miller’s supervised release after he violated two
release terms by refusing to take his prescribed psychotropic medication and driving
without permission. The court imposed a 10‐month reimprisonment term and 12
months’ of supervised release. Miller filed a notice of appeal, but his appointed attorney
asserts that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386
U.S. 738 (1967). Miller opposes counsel’s motion. See CIR. R. 51(b). We confine our
review to the potential issues discussed in counsel’s facially adequate brief and Miller’s
response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 13‐1874 Page 2
Miller has been convicted twice under 18 U.S.C. § 115(a)(1)(B) for threatening
federal judges. Miller was convicted first in 2008 when he pleaded guilty to threatening
to murder a federal bankruptcy judge and blow up a federal courthouse. See United
States v. Miller, 340 F.App’x 335 (7th Cir. 2009). While serving his supervised release
term for that conviction in 2011, Miller threatened to kidnap and kill the federal judge
who had presided over his criminal case. Miller was again convicted under 18 U.S.C.
§ 115(a)(1)(B) and sentenced to 12 months plus one day in prison and three years’
supervised release.
After completing his prison term for the second conviction, Miller began serving
his supervised release. He violated two conditions of his release when he (1) failed to
take his prescribed medication and (2) drove without his probation officer’s permission.
Miller’s probation officer noted that after he stopped taking his psychotropic
medication, he became obsessively fixated on his prior bankruptcy case and was unable
to control his anger.
In his motion to withdraw, counsel first explores whether Miller could challenge
the revocation of his supervised release on grounds that the government had not
proven the violations by a preponderance of the evidence. But Miller admitted at his
detention and revocation hearings that he violated the conditions, Detention Hr’g Tr.
18–19, Mar. 15, 2013; Revocation Hr’g Tr. 17, Apr. 16, 2013,— a point he denies in his
Rule 51(b) response (though he acknowledges not having reviewed the
transcript) — and so the district court correctly found that the government had
established the violations by a preponderance of the evidence. United States v. Flagg, 481
F.3d 946, 949 (7th Cir. 2007). Any challenge to the revocation of his release on this
ground would be frivolous.
Counsel next assesses whether Miller could challenge his reimprisonment term
as plainly unreasonable, see United States v. Jackson, 549 F.3d 1115, 1118 (7th Cir. 2008),
but properly concludes that any such challenge would be frivolous. The 10‐month
reimprisonment term is shorter than the two‐year authorized maximum when
supervised release is revoked on a Class C felony. See 18 U.S.C. § 3583(e)(3) (authorizing
two years reimprisonment following revocation on a Class C felony.) And the 12‐month
supervised release term is significantly less than the 26 months that could have been
imposed (the 36‐month statutory maximum under 18 U.S.C. § 3583(b)(2) less the 10
months’ reimprisonment imposed upon revocation of supervised release). See 18 U.S.C.
§ 3583(h) (authorizing a supervised release term equal to the maximum authorized term
of supervised release for the underlying offense, less any term of reimprisonment). The
No. 13‐1874 Page 3
district court correctly calculated a policy‐statement range of 5 to 11 months’
reimprisonment based on Miller’s Grade C violations of his supervised release and
category III criminal history. See U.S.S.G. §§ 7B1.1(a)(3), 7B1.4(a). Further the district
court’s comments reflect that it appropriately considered the sentencing factors in 18
U.S.C. § 3553(a), including the need to provide just punishment, afford adequate
deterrence, and protect the public.
Miller’s Rule 51(b) response is hard to decipher, but we glean three arguments
regarding his 2011 conviction and sentence and counsel’s performance at the revocation
hearing. First, he asserts that he was wrongly convicted of murdering a federal official.
But Miller misunderstands his conviction: he was convicted of threatening to kidnap and
murder a federal official, not murdering a federal official. Next he argues that his 2011
sentence was not authorized under 18 U.S.C. § 115(a)(1)(B) because the subsection does
not set forth a sentence. Although Miller correctly points out that § 115(a)(1)(B) does not
include a sentence, it mandates that a person guilty of an offense related to threatening
a federal official “shall be punished as provided in subsection (b),” which specifies a
prison term of not more than 10 years for a violation of 18 U.S.C. § 115(a)(1)(B). See 18
U.S.C. § 115(b)(4). Miller’s initial sentence of 12 months plus one day imprisonment is
well below that statutory maximum. Finally, Miller argues that his attorney’s
performance at the revocation hearing constituted ineffective assistance. A right to
counsel, however, attaches in revocation proceedings only if the defendant contests the
alleged violations (which Miller did not) or presents substantial and complex grounds
in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790–91 (1973); United States v.
Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006). Because those circumstances were not
present in Miller’s case, there was no constitutional right to counsel, thereby precluding
any claim of ineffective assistance.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.