NONPRECEDENTIAL DISPOSITION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 March 12, 2015
Decided March 12, 2015
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐2257
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 92‐30068‐002
ROBERT L. WALLACE, Richard Mills,
Defendant‐Appellant. Judge.
O R D E R
In United States v. Wallace, 557 F. App’x 567 (7th Cir. 2014), we reversed an order
revoking Robert Wallace’s supervised release because of an error in the admission of
hearsay testimony at his revocation hearing. On remand the district court conducted a
fresh hearing and again revoked Wallace’s term of supervision. Wallace has filed a
notice of appeal, but his appointed attorney asserts that any argument would be
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel
has submitted a brief that explains the nature of the case and addresses the issues that an
appeal of this kind might be expected to involve. Wallace has not responded to our
invitation to comment on counsel’s motion. See CIR. R. 51(b). Because the analysis in the
brief appears to be thorough, we limit our review to the subjects that counsel discusses.
No. 14‐2257 Page 2
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).
After serving a 235‐month term of imprisonment for his role in a drug conspiracy,
Wallace began a 5‐year term of supervised release in 2009. Four years later the district
court found that Wallace had violated several conditions of supervised release and
reimprisoned him for 60 months. The government’s principal evidence was the written
report of a nontestifying state trooper who had arrested Wallace in Texas. We reversed
that decision because the district court had violated Federal Rule of Criminal
Procedure 32.1(b)(2)(C) by admitting the trooper’s report without first explicitly
balancing Wallace’s interest in confronting and cross‐examining adverse witnesses
against the government’s reasons for relying on hearsay. See Wallace, 557 F. App’x
at 569–70.
On remand the district court conducted another revocation hearing, and this time
the arresting trooper, Carlos Wilson, testified by video. At the hearing the court
informed Wallace that he was accused of violating his conditions of release by
possessing marijuana, evading arrest, and driving recklessly in violation of Texas law;
leaving the Central District of Illinois without permission; associating with a felon; and
failing to notify his probation officer within 72 hours of his contact with law
enforcement. Wilson, the government’s sole witness, recounted conducting a traffic stop
of two men in November 2012 and writing his report the following day. According to
Wilson, the passenger provided an Illinois identification card and identified himself as
Wallace. The driver, Keith Jordan, also was on supervised release. After Jordan exited
the car, Wilson continued, Wallace jumped into the driver’s seat and sped away, leading
Wilson on a high‐speed chase for several minutes. Wilson stopped the car by shooting
one of the rear tires, but Wallace fled on foot and was not arrested until the next month.
Wilson and another officer searched the car and found almost 30 pounds of what
laboratory analysis confirmed to be marijuana.
Based on Trooper Wilson’s testimony, his written report, and a video of the traffic
stop, the district court concluded that the government had met its burden to show that
Wallace committed the alleged violations. The most serious—a controlled substance
offense punishable by more than a year in prison, see TEX. HEALTH & SAFETY CODE ANN.
§ 481.121(a), (b)(4) (West 2009); TEX. PENAL CODE ANN. § 12.34(a) (West 2009)—is a
Grade A violation mandating revocation, see 18 U.S.C. § 3583(g)(1); U.S.S.G.
§ 7B1.1(a)(1), and the statutory maximum term of reimprisonment was 5 years, see 18
U.S.C. § 3583(e)(3). Wallace did not object to the guidelines range of reimprisonment of
No. 14‐2257 Page 3
37 to 46 months. See U.S.S.G. § 7B1.4(a). The district court again imposed a 60‐month
term, explaining that the seriousness of Wallace’s violations warranted the maximum
term of incarceration.
In her Anders brief, counsel first considers challenging the evidence admitted at
the revocation hearing, specifically the district court’s decision to permit Trooper Wilson
to testify by video rather than in person, and the admissibility of hearsay contained in
the laboratory report. We agree with counsel that these arguments would be frivolous.
In United States v. Jordan, 765 F.3d 785 (7th Cir. 2014), we concluded that these same
arguments were meritless when made by the driver who was with Wallace in the car
that Trooper Wilson stopped, id. at 787–88. As in Jordan, the district court heeded our
suggestion that video conferencing could be appropriate for the trooper’s testimony.
See id. at 787; Wallace, 557 F. App’x at 569. And we could not say that Wallace was
harmed by admission of the laboratory report, even if that decision was erroneous,
because the government’s other evidence was enough to prove Wallace’s drug offense
by a preponderance. See Jordan, 765 F.3d at 788; United States v. Mosley, 759 F.3d 664,
668–69 (7th Cir. 2014); United States v. Turner, 709 F.3d 1187, 1195 (7th Cir. 2013). Wilson
testified in both Jordan’s and Wallace’s revocation proceedings that, based on his
12 years’ experience in law enforcement and his training in identifying marijuana, he
recognized by sight and smell that the substance was marijuana, and the laboratory
analysis simply confirmed this belief.
Counsel also considers challenging Wallace’s term of reimprisonment as plainly
unreasonable but rightly concludes that any claim would be frivolous. First, the
60‐month term is statutorily authorized. The drug conspiracy for which Wallace was
convicted is a Class A felony, see 21 U.S.C. §§ 846, 841(a)(1) (1988); 18 U.S.C. § 3559(a)(1);
United States v. Rogers, 382 F.3d 648, 652 (7th Cir. 2004); United States v. Turlington, 696
F.3d 425, 426–28 (3d Cir. 2012), and thus he could have been reimprisoned for up to 5
years, see 18 U.S.C. § 3583(e)(3). Second, we would not find the 60‐month term to be
plainly unreasonable. See United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008); United
States v. Kizeart, 505 F.3d 672, 674–75 (7th Cir. 2007). The district court acknowledged the
guidelines range of 37 to 46 months, see U.S.S.G. § 7B1.4, and evaluated the factors listed
in 18 U.S.C. § 3553(a), see Neal, 512 F.3d at 438; United States v. Pitre, 504 F.3d 657, 664–65
(7th Cir. 2007). After considering Wallace’s arguments in mitigation, the district court
concluded that Wallace had committed “very serious offenses,” including possessing a
large quantity of marijuana and evading arrest “in a reckless manner that endangered
the lives of others.” He also had traveled outside the judicial district multiple times and
No. 14‐2257 Page 4
associated with a felon, the court continued, and thus the seriousness of his violations
warranted a “lengthy” period of incarceration.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.