NONPRECEDENTIAL DISPOSITION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 August 29, 2013
Decided September 3, 2013
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1322
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:98CR40075‐002‐JPG
FERNANDEZ M. WHITE, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Fernandez White pleaded guilty in 1998 to drug crimes committed that same year.
See 21 U.S.C. § 841(a)(1), 846. He was sentenced to a total of 132 months in prison to be
followed by 5 years of supervised release. White was released from prison in 2008. Within a
matter of months he violated the conditions of his supervised release, which was revoked.
He was reimprisoned for 3 more days and again released on supervision, but his ongoing
drug use resulted in a second revocation in 2009. See 18 U.S.C. § 3583(e)(3), (h) (1994). This
time the district court ordered White to serve 36 months in prison to be followed by a third
term of supervised release.
No. 13‐1322 Page 2
White was released from prison in 2012 and commenced the third term of
supervised release, but before long his probation officer had petitioned yet again for
revocation. White admitted several violations, including possession of controlled
substances. The district court revoked his supervised release and imposed 18 months’
reimprisonment. White filed a notice of appeal, but his appointed lawyer asserts that the
possible appellate claims are frivolous and seeks to withdraw under Anders v. California, 386
U.S. 738, 744 (1967). We invited White to comment on counsel’s motion, but he did not
respond. See CIR. R. 51(b). We limit our review to the potential issues discussed in counselʹs
facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel informs us that White wishes to challenge the revocation, and thus the
lawyer appropriately explores whether White could claim that the decision to revoke his
supervised release was an abuse of discretion. See United States v. Wheaton, 610 F.3d 389, 390
(7th Cir. 2010) But White’s admission to possessing drugs meant that revocation and prison
were mandated by statute. See 18 U.S.C. § 3583(g)(1) (1994). And, as counsel points out, the
judge conducted a lengthy colloquy with White, which satisfies us that his admissions were
knowing and voluntary. See FED. R. CRIM. P. 32.1; United States v. LeBlanc, 175 F.3d 511,
516–17 (7th Cir. 1999). The judge explained the nature of the alleged violations, told White
the consequences of admitting their truth (including that he was giving up his rights to
present witnesses and confront adverse witnesses, see FED. R. CRIM. P. 32.1(b)(2)), and
ensured that no one had induced his admissions.
Counsel next considers whether White could argue that the term of 18 monthsʹ
reimprisonment is plainly unreasonable. See United States v. Jackson, 549 F.3d 1115, 1118 (7th
Cir. 2008); United States v. Kizeart, 505 F.3d 672, 674–75 (7th Cir. 2007). We agree with
counsel, however, that any challenge to the length of that term would be frivolous. Eighteen
months is significantly less than the almost two years that, as White acknowledged, could
have been imposed (the 60‐month statutory maximum less the 36 months and three days’
reimprisonment already served as a result of prior revocations). See 18 U.S.C. §§ 3559(a)(1),
3583(e)(3) (1994); 21 U.S.C. § 841(b)(1)(A)(iii) (1994 & Supp. III 1997); United States v.
Tapia–Escalera, 356 F.3d 181, 187–88 (1st Cir. 2004); United States v. Jackson, 329 F.3d 406,
407–08 (5th Cir. 2003); United States v. Swenson, 289 F.3d 676, 677 (10th Cir. 2002); United
States v. Merced, 263 F.3d 34, 37 (2d Cir. 2001). The term imposed by the district court is also
within the policy‐statement range of 12 to 18 months (given White’s criminal history
category of IV and his Grade B violations for possessing drugs, see U.S.S.G. §§ 7B1.1(a)(2),
7B1.4(a); United States v. Trotter, 270 F.3d 1150, 1156 (7th Cir. 2001)). Moreover, the judge’s
comments at the revocation hearing reflect consideration of the sentencing factors in 18
U.S.C. § 3553(a). The judge said he was impressed with White’s efforts to obtain a G.E.D.
and improve himself but added that White must “start making better choices”and stay
No. 13‐1322 Page 3
“away from bad elements.” The judge was not required to say more before revoking Whiteʹs
supervised release and imposing a term of reimprisonment. See United States v. Neal, 512
F.3d 427, 438–39 (7th Cir. 2008).
Last, counsel discusses whether White could claim that his lawyer’s representation
during the revocation proceedings was constitutionally deficient. Counsel assumes that White
had a constitutional right to counsel, but that right attaches in revocation proceedings only if
the defendant contests the alleged violations (which White did not) or presents substantial and
complex grounds in mitigation. See Gagnon v. Scarpelli, 411 U.S. 778, 790–791 (1973); United States
v. Eskridge, 445 F.3d 930, 932–933 (7th Cir. 2006). In this case we do not have to decide if the
constitutional right attached or, if not, whether Whiteʹs statutory right to counsel under 18
U.S.C. § 3006A(a)(1)(C) and Federal Rule of Criminal Procedure 32.1(b)(2)(D) could support a
constitutional claim of ineffective assistance. See Eskridge, 445 F.3d at 932–933; Stevens v. Epps,
618 F.3d 489, 504–05 (5th Cir. 2010); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008);
Simpson v. Norris, 490 F.3d 1029, 1033–34 (8th Cir. 2007). Counsel also represented White in the
district court, and she acknowledges that she cannot serve as White’s appellate lawyer while
challenging her own performance. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003);
United States v. Martinez, 169 F.3d 1049, 1052 (7th Cir. 1999). Moreover, a claim of ineffective
assistance would be hollow unless a specific instance of deficient performance is articulated,
yet in her Anders submission counsel does not say on what basis White might argue that her
performance was substandard. See Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010); Berkey v.
United States, 318 F.3d 768, 772 (7th Cir. 2003). Thus, if there is a basis for a claim of ineffective
assistance, that claim is best reserved for collateral review. See Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58 (7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.