NONPRECEDENTIAL DISPOSITION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 May 16, 2007
Decided May 22, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1224
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 3:06-CR-30089-001-DRH
ELIJAH CLAYTON MASON,
Defendant-Appellant. David R. Herndon,
Judge.
ORDER
Elijah Mason and another man robbed a couple at gunpoint and sexually
assaulted the woman on the grounds of the Gateway Arch in St. Louis. Mason was
prosecuted in federal court and sentenced in 1993 to a total of 180 months’
imprisonment. See United States v. Mason, 1993 WL 335764 (8th Cir. Sept. 7,
1993) (unpublished). After his release in May 2006, jurisdiction was transferred to
the Southern District of Illinois where Mason began serving a three-year term of
supervised release. Four months into that term, his probation officer petitioned to
revoke Mason’s supervised release. At the revocation hearing Mason admitted that
in July 2006 he was present while another felon burglarized a gas station and that
he was arrested for obstruction of justice related to that burglary. He did not tell
No. 07-1224 Page 2
his probation officer about the arrest. Mason also fled after he was released from
jail on his own recognizance and lied to his probation officer about his whereabouts.
He remained in hiding for several months, and in January 2007 he finally turned
himself in. He further admitted that he used marijuana and cocaine during his
release.
The district court determined that the most serious of these
violations—possession of marijuana and cocaine—met the Grade B classification
under the guidelines policy statements. See U.S.S.G. § 7B1.1(a)(2). Combining this
classification with Mason’s criminal history category of V yielded an imprisonment
range of 18 to 24 months. See id. § 7B1.4(a). The court sentenced him to 20
months’ imprisonment and 16 months’ supervised release, emphasizing the
seriousness of Mason’s lies to his probation officer, his long period of hiding, and the
danger that absconders who are “desperate” and “apt to make desperate decisions”
present to the public. The government requested that the court also order Mason to
undergo sex-offender treatment as a condition of his supervised release. Mason’s
probation officer explained that she would have proposed such treatment had
Mason not violated his conditions of release so quickly. She also told the court that
Mason had physically abused and threatened his former girlfriend while on
supervised release. Mason’s attorney objected, but the district court agreed with
the government and ordered Mason to undergo the treatment.
Mason filed a notice of appeal and wants to challenge the imposed
reimprisonment, supervised release, and sex-offender treatment, but his appointed
counsel moves to withdraw because she cannot discern a nonfrivolous basis for
appeal. See Anders v. California, 386 U.S. 738 (1967). Mason has not accepted our
invitation to respond to counsel’s submission, see Cir. R. 51(b), so our examination is
confined to those potential issues identified in counsel’s facially adequate brief, see
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Counsel first considers whether Mason could argue that his 20-month prison
term is unreasonably long. Before the decision in United States v. Booker, 543 U.S.
220 (2005), we would not disturb a term of reimprisonment unless it was “plainly
unreasonable,” and although there is some debate as to whether that standard or a
“reasonableness” standard applies post-Booker, see United States v. Flagg, No. 06-
3092, 2007 WL 861115, at *1-2 (7th Cir. Mar. 23, 2007), we agree with counsel that
Mason’s prison term is appropriate no matter which standard is applied. When
imposing a term of reimprisonment for violating supervised release, a district court
must consider the applicable policy statements and the sentencing factors in 18
U.S.C. § 3553(a), see id. at *4, which the district court did here. In choosing a
sentence within the properly calculated guidelines range, the court took into
account Mason’s lengthy period as a fugitive, his efforts to mislead his probation
officer, and the danger his conduct could pose to others. And the court also
No. 07-1224 Page 3
considered as a mitigating factor that Mason eventually turned himself in. We thus
agree with counsel that it would be frivolous for Mason to argue that he received too
much prison time.
Counsel next questions whether Mason might argue that, under the version
of 18 U.S.C. § 3585(e) in effect in 1993 when he was convicted, the district court
lacked authority to impose a further term of supervised release after revocation.
We agree with counsel that it would be frivolous to raise this potential argument.
Although in 1993 the statute did not explicitly provide for further supervised
release after revocation and reimprisonment, the Supreme Court has interpreted
the language of former § 3585(e)(3) to permit this option. See Johnson v. United
States, 529 U.S. 694, 713 (2000); United States v. Russell, 340 F.3d 450, 453-54 (7th
Cir. 2003). The combined length of any imprisonment and additional supervised
release may not exceed the original term of supervised release, Russell, 340 F.3d at
454, and the 20 months’ imprisonment and 16 months’ supervised release imposed
here does not exceed Mason’s original three-year term of supervised release.
Finally, counsel questions whether Mason could contest the sex-offender
treatment ordered as a condition of his new term of supervised release. We would
review the district court’s decision to order treatment for abuse of discretion, see
United States v. Ross, 475 F.3d 871, 873 (7th Cir. 2007), which we would not find if
the required treatment is reasonably related to the circumstances surrounding the
offense and Mason’s history and characteristics; is reasonably related to and
involves no greater deprivation of liberty than necessary to deter Mason, to protect
the public, and to provide him with treatment in an effective manner; and comports
with the policy statements in the sentencing guidelines. See 18 U.S.C. § 3583(d);
Ross, 475 F.3d at 873. And here we agree with counsel that the court took these
factors into account when ordering Mason to undergo sex-offender treatment.
Mason’s underlying conviction involved a “serious sexual abuse charge,” which the
court characterized as “attempted rape.” Mason’s probation officer informed the
court that after his release he became violent with his former girlfriend. It was
within the court’s discretion to consider the sexual-abuse conviction and to credit
the statements of Mason’s probation officer. Thus, counsel is correct that an
appellate challenge to this special condition of Mason’s new term of supervised
release would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.