United States v. Garner, Dayna

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted May 11, 2005
Decided May 16, 2005

Before

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 05-1357

UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois

v. No. 4:98CR40124-004-JPG

DAYNA GARNER, J. Phil Gilbert,
Defendant-Appellant. Judge.

ORDER

In 1999 Dayna Garner pleaded guilty to four drug counts arising from her
involvement in a crack distribution conspiracy, see 21 U.S.C. §§ 846, 841(a)(1), and
was sentenced to a total of 70 months’ imprisonment—later reduced under Fed. R.
Crim. P. 35 to 47 months—and five years’ supervised release. Garner was released
from prison in August 2002, and in January 2005 the probation officer moved to revoke
her supervised release after she tested positive for marijuana, passed nine bad checks
totaling $1,150, and consistently failed to submit monthly reports and to make
payments on her fine and special assessment. Garner admitted the violations, and the
district court revoked her supervised release and reimprisoned her for 24 months, to
be followed by an additional 12 months’ supervised release. Garner filed a notice of
appeal, but her appointed counsel seeks to withdraw under Anders v. California, 386
U.S. 738 (1967), because she cannot discern a nonfrivolous argument for appeal.
Garner has not responded to counsel’s motion, see Cir. R. 51(b), and so we limit our
No. 05-1357 Page 2

review to the potential issues counsel identifies in her facially adequate brief. See
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).

Counsel sees four possible issues. First she considers arguing that the district
court abused its discretion in revoking Garner’s supervised release. But, as counsel
recognizes, the judge had no discretion. The revocation petition alleges that Garner
possessed a controlled substance; she admitted the violation, which in any event is
supported by a urine screening that tested positive for marijuana, see United States
v. Trotter, 270 F.3d 1150, 1153-54 (7th Cir. 2001). And given the admission to
possession, the judge was required to revoke her supervised release. See 18 U.S.C.
3583(g)(4); United States v. Hondras, 296 F.3d 601, 602 (7th Cir. 2002).

Counsel next considers whether Garner might rely on 18 U.S.C. § 3553(c)(2) to
argue that the district court failed to provide a written statement of reasons for
imposing a term of imprisonment greater than the range suggested in the guidelines
policy statement. But by its terms § 3553(c) applies only to sentencing, and we are
aware of no court extending its mandate to reimprisonment following revocation. See
United States v. Cotton, 399 F.3d 913, 915-16 (8th Cir. 2005). The enactments
governing revocation, see 18 U.S.C. §§ 3583(c), (g); Fed. R. Crim. P. 32.1, do not require
a written statement of reasons and do not reference § 3553(c)(2). The argument would
therefore be frivolous.

Counsel also assesses whether to contend that the district court failed to
consider the relevant guidelines policy statements, but, as she recognizes, the
argument would be frivolous because the court did consider the suggested range before
rejecting it as too short. No more was required. See United States v. Harvey, 232 F.3d
585, 588 (7th Cir. 2000)

Last, counsel contemplates arguing that Garner’s new term of imprisonment is
unreasonable. Two circuits have concluded that United States v. Booker, 125 S. Ct.
738 (2005), replaced the “plainly unreasonable” standard we formerly applied to
revocations with a “reasonableness” standard applicable now to all sentences, see
United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005); United States v. Edwards,
400 F.3d 591, 592-93 (8th Cir. 2005); cf. United States v. Johnson, 403 F.3d 813, 817
(6th Cir. 2005) (reserving issue), but if there is any difference of substance between the
two formulations, we would not find error under either. Garner’s new term of
imprisonment is above the 4- to 10-month range recommended for a Grade B violation
and a criminal history category of I. See U.S.S.G. § 7B1.4. But the court considered
the policy statements—noting Garner’s Rule 35 reduction for substantial
assistance—and relevant statutory factors, and so we agree with counsel that it would
be frivolous to argue that the new prison term is unreasonable. See United States v.
Salinas, 365 F.3d 582, 588-90 (7th Cir. 2004).; United States v. Hale, 107 F.3d 526, 530
(7th Cir.1997)
No. 05-1357 Page 3

Finally, counsel correctly observes that—as Garner’s counsel at the revocation
hearing—she cannot now argue that Garner received ineffective assistance. See
United States v. Martinez, 169 F.3d 1049, 1052 (7th Cir. 1999). If Garner has such a
claim she can raise it in an application for a writ of habeas corpus under 28 U.S.C. §
2255. See Massaro v. United States, 538 U.S. 500, 504 (2003); Cooper v. United
States, 378 F.3d 638, 640 n.1 (7th Cir. 2001).

Counsel’s motion to withdraw is GRANTED and this appeal is DISMISSED.