NONPRECEDENTIAL DISPOSITION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 8, 2007*
Decided November 2, 2007
Before
Honorable RICHARD A. POSNER, Circuit Judge
Honorable ILANA DIAMOND ROVNER, Circuit Judge
Honorable ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-2372
UNITED STATES OF AMERICA, )
) Appeal from the United States
Plaintiff-Appellee, ) District Court for the Southern
) District of Indiana, Indianapolis
) Division
v. )
) No. 93 CR 11
DANIEL P. CANNON, )
) Hon. David F. Hamilton, Judge
Defendant-Appellant. )
ORDER
Daniel P. Cannon admitted violating the terms of his supervised release by
conspiring to possess, with the intent to distribute, more than five kilograms of
cocaine and possessing a firearm during and in connection with a drug trafficking
offense. The district court revoked Cannon’s release and imposed a prison term of
60 months for the violation, to be served consecutively to the 270-month term he
received on the crimes that triggered the revocation. We initially dismissed
*
Pursuant to Seventh Circuit Internal Operating Procedure 6(b), this
successive appeal was submitted to the panel of judges that disposed of the Gilbert’s
prior appeal.
2 No. 07-2372
Cannon’s appeal of the sentence he received on the revocation of his supervised
release, concluding that the appeal was frivolous. United States v. Douglas, 182
Fed. Appx. 558, 559 (7th Cir. 2006). Subsequently, however, we discovered that
Cannon did have a non-frivolous issue to raise with respect to that sentence: the
sentence appeared to exceed the statutory maximum term for the violation of his
supervised release. We therefore vacated the relevant portion of our original order,
recalled the mandate, reinstated Cannon’s appeal, and ordered briefing of the issue
we had identified. United States v. Cannon, No. 05-3073 (7th Cir. Oct. 18, 2006)
(unpublished order). The parties subsequently agreed that Cannon’s sentence
exceeded the statutory maximum and that he was therefore entitled to
resentencing. In light of that agreement, we summarily vacated Cannon’s sentence
and remanded the case to the district court for resentencing. United States v.
Cannon, No. 05-3073 (7th Cir. April 12, 2007) (unpublished order). On remand, the
district court ordered Cannon to serve a prison term of 24 months, the maximum
permissible term.**
Cannon has again appealed, but his counsel has come to the conclusion that
Cannon has no issue of arguable legal merit left to pursue. Counsel has filed a
motion for leave to withdraw along with a brief documenting his conclusion that
Cannon’s current appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-
45, 87 S. Ct. 1396, 1400 (1967). In that brief, counsel has identified and discussed
the sole issue that counsel believes Cannon might raise in this appeal and
concluded that Cannon can make no non-frivolous argument with respect to that
issue. Pursuant to Circuit Rule 51, we invited Cannon to file a response to his
counsel’s motion to withdraw and to the Anders brief. The 30-day deadline we set
for his response has come and gone without him filing anything. Counsel’s Anders
brief is adequate on its face. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.
1997) (per curiam). Therefore, we shall confine our consideration to the potential
appellate issue that his counsel has identified. See United States v. Wagner, 103
F.3d 551 (7th Cir. 1996).
**
The government noted on remand that, depending on whether the district
court had originally intended to impose one or two terms of supervised release, the
court potentially was free in revoking Cannon’s release to impose two separate
prison terms of 24 months each, to run consecutively to one another. R. 11 at 4; see
also United States v. Cannon, No. 05-3073 (7th Cir. Oct. 18, 2006) (unpublished),
citing United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006) (consecutive
terms of imprisonment may be imposed when court revokes multiple terms of
supervised release). However, the government did not ask the court to impose two
consecutive prison terms, and the district court indicated that it was disinclined to
impose more than one term. Id.
No. 07-2372 3
Counsel concludes that the only issue Cannon might pursue at this juncture
is the reasonableness of the 24-month sentence that the district court imposed on
remand. The new sentence comports with the statutory maximum of two years.
See 18 U.S.C. 3583(e)(3). Counsel notes that in United States v. Flagg, 481 F.3d
946, 949 (7th Cir. 2007), cert. denied, 2007 WL 1812221 (Oct. 1, 2007), we left open
the question whether, after the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a sentence imposed after the revocation
of supervised release may be set aside only if it is “plainly unreasonable,” as we had
held prior to Booker, or rather if it is simply “unreasonable.” Last month, however,
we resolved the question, concluding that such a sentence may only be set aside if it
is plainly unreasonable. United States v. Kizeart, — F.3d —, 2007 WL 2938374 (7th
Cir. Oct. 10, 2007).
We agree with counsel that Cannon has no plausible basis on which to argue
that his 24-month sentence is plainly unreasonable. The record reveals that the
district court properly considered the policy statements set forth in Chapter Seven
of the U.S. Sentencing Guidelines and the sentencing factors identified in 18 U.S.C.
§§ 3553(a) and 3583(e). R. 6 at 24-27; R. 8 at 5-8; see United States v. Carter, 408
F.3d 852, 854 (7th Cir. 2005). Cannon’s criminal history includes multiple violent
acts and a prison disciplinary record that the district judge described as “terrible.”
R. 8 at 7. The criminal conduct that resulted in the revocation of his supervised
release itself involved firearms and posed the potential for even more violence. R.
11 at 7. Finally, based on the nature of the conduct resulting in the revocation and
Cannon’s criminal history category, the Guidelines recommended a sentence of 37
to 46 months, see U.S.S.G. § 7B1.4(a); R. 8 at 8; it was only by virtue of the fact that
the floor of the recommended range exceeded the maximum sentence allowed by
statute that the statutory maximum term of two years became the recommended
sentence, see U.S.S.G. § 7B1.4(b)(1), which of course is the very term that the
district court imposed.
For these reasons, we conclude that Cannon’s appeal is legally frivolous. We
therefore GRANT his counsel’s request to withdraw and DISMISS the appeal.