NONPRECEDENTIAL DISPOSITION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 November 7, 2007
Decided November 9, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-1334
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 1:05-CR-00164
ANTOINE PERRY,
Defendant-Appellant. David F. Hamilton,
Judge.
ORDER
After Antoine Perry violated the terms of his supervised release, the district
court ordered that he be reimprisoned for sixteen months. Perry timely appealed,
but his appointed attorneys now move to withdraw because they cannot discern a
nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). Perry
has not responded to our invitation to comment on counsel’s motion, see Cir. R.
51(b), and so we confine our review to the potential issues raised in counsel’s
facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
No. 07-1334 Page 2
Perry was convicted in the District of Columbia for damaging a computer
that he accessed without authorization. See 18 U.S.C. § 1030(a)(5)(A)(I). He was
sentenced to four months’ imprisonment and three years’ supervised release, with
the first four months to be served in home confinement under electronic monitoring.
Perry established residency in Indiana after completing his prison sentence, and
jurisdiction over his supervised release was transferred to the Southern District of
Indiana.
In November 2005 Perry’s probation officer petitioned the district court to
revoke his supervised release. Perry ultimately admitted that he violated the
conditions prohibiting drug use, regulating his home confinement, and requiring
monthly reports to the probation officer. Rather than order revocation, the district
court in January 2006 elected to modify the conditions of supervision. But within a
week the probation officer alleged that Perry again had violated the conditions
concerning drug use and home confinement. This time when Perry admitted to the
violations the court revoked his supervised release and ordered him reimprisoned
for six months. The court also imposed thirty months of supervised release and
directed that Perry reside in a community corrections center for the first six months
of that term.
Perry completed the prison term in July 2006. Less than one month later the
probation officer yet again petitioned to revoke his release. According to the
probation officer, Perry had failed to timely report to the community corrections
center after his release from prison and then departed without authorization after
only eleven days. He also had tested positive for cocaine use on four occasions and
failed to report as directed by the probation office.
At the revocation hearing, which was conducted in segments over several
months, Perry admitted absconding from the community corrections center and
using cocaine on one occasion. But he insisted that all of the positive drug tests
reflected residual metabolite levels from that one acknowledged use, and he denied
that the probation officer had contacted him to schedule a meeting. The district
court rejected the allegation that Perry had failed to report to his probation officer,
but found by a preponderance of the evidence that he used cocaine four times in the
first three weeks after his release from prison, and had departed the community
corrections center without authorization. The court revoked Perry’s supervision
and calculated an imprisonment range of four to ten months under the applicable
policy statements. See U.S.S.G. § 7B1.4(a). In addition, the court noted that it
could add to the range the time Perry should have served in community
confinement, see id., which was approximately six months. Thus, the court, noting
Perry’s light original sentence and “defiance” of past attempts to get him to conform
to less onerous forms of supervision, ordered Perry to serve sixteen months’
imprisonment.
No. 07-1334 Page 3
In their Anders submission counsel first consider arguing that the district
court abused its discretion in revoking Perry’s supervised release, but conclude that
this contention would be frivolous. We agree. To revoke a defendant’s supervised
release, a district court must find by a preponderance of the evidence that the
defendant violated the terms of his release. See 18 U.S.C. § 3583(e)(3); United
States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007). Here, Perry did not dispute that
he failed to report to the community corrections center as directed by the probation
officer or that he left without authorization. And Perry admitted that he used
cocaine. That admission was enough to raise an inference that he possessed a
controlled substance in violation of his supervised release, see United States v.
Trotter, 270 F.3d 1150, 1153-54 (7th Cir. 2001), which would have mandated
revocation and imprisonment, see 18 U.S.C. § 3583(g)(1). Indeed, the undisputed
evidence that Perry tested positive for cocaine use four times in less than a month
itself compelled the court to revoke his supervision and return him to prison. 18
U.S.C. § 3583(g)(4).
Next, counsel consider arguing that the district court imposed an
unreasonably long prison term. We will uphold a term of reimprisonment imposed
upon revocation of supervised release unless it is “plainly unreasonable.” United
States v. Kizeart, No. 07-1397, 2007 WL 2938374, at *2 (7th Cir. Oct. 10, 2007). And
we have held that it will not be plainly unreasonable so long as the district court
considered the applicable policy statements in the sentencing guidelines, see
U.S.S.G. ch. 7, pt. B, and the factors set out in 18 U.S.C. § 3553(a). See United
States v. Salinas, 365 F.3d 582, 588-89 (7th Cir. 2004). The district court did so
here. Counsel acknowledge that the court correctly applied the policy statements,
including the directive to add six months to Perry’s imprisonment range because he
failed to serve the period of community confinement that was “previously imposed
in connection with the sentence for which revocation” was ordered. See U.S.S.G.
§ 7B1.3(d). The court then took note of the nonviolent nature of Perry’s original
conviction and his service as a navy veteran, but was more persuaded by Perry’s
defiance of lesser sanctions, his repeated drug use, and his unwillingness to accept
responsibility. As counsel observe, the sixteen-month term chosen by the court is
within the parameters established by the policy statements, and any contention
that the term is plainly unreasonable would be frivolous.
For the above reasons, counsel’s motion to withdraw is GRANTED, and the
appeal is DISMISSED.