NONPRECEDENTIAL DISPOSITION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 December 22, 2008
Decided December 23, 2008
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2181
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 91‐CR‐290
ERNEST F. CLARK,
Defendant‐Appellant. Lynn Adelman,
Judge.
O R D E R
Ernest Clark was convicted in 1992 of armed bank robbery, see 18 U.S.C. § 2113, use
of a firearm while committing a crime of violence, see 18 U.S.C. § 924(c), and being a felon in
possession of a firearm, see 18 U.S.C. § 922(g)(1). Fourteen years later Clark was released
from custody, but he did not comply with the terms of his supervised release. After Clark
tested positive for cocaine on four separate occasions and missed various counseling
appointments, his probation officer petitioned the district court to revoke his release. At his
revocation hearing Clark admitted nearly all of the allegations, including that he had tested
positive for cocaine on at least three occasions in the previous year. The court found that it
was four, which made revocation mandatory under 18 U.S.C. § 3583(g)(4). In light of
No. 08‐2181 Page 2
Clark’s intractability and the potential danger he posed to the public, the court imposed
another six months’ imprisonment to be followed by a term of twelve months’ supervised
release.
Clark appeals. But his attorney cannot find a nonfrivolous basis for the appeal and
has asked to withdraw under Anders v. California, 386 U.S. 738 (1967). We invited Clark’s
comment on the pending motion; he did not respond. See Cir. R. 51(b). That leaves us with
only the potential issues raised in counsel’s supporting brief. See United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002).
Counsel first examines whether Clark could challenge the district court’s authority to
impose an additional term of supervised release on top of reimprisonment. But Johnson v.
United States, 529 U.S. 694, 712‐13 (2000), permits a district court to do just that, even if the
sentence is governed, as Clark’s is, by an earlier version of 18 U.S.C. § 3583, which does not
explicitly provide the authority. See also United States v. Russell, 340 F.3d 450, 453‐54 (7th
Cir. 2003). Still, under Johnson, the combined term of reimprisonment and additional
supervised release cannot exceed the original term of supervised release. See Johnson, 529
U.S. at 712‐13; Russell, 340 F.3d at 454. That is not a problem here. Clark’s original term of
supervised release was five years, so the eighteen months of incarceration and supervision
he now faces pass muster.
Counsel briefly examines the grounds for revocation as well but acknowledges that
they are adequate. There can be no debate here. Testing positive for illegal controlled
substances is reason for revocation. See 18 U.S.C. § 3583(g)(4); United States v. Pitre, 504 F.3d
657, 659‐65 (7th Cir. 2007).
Counsel next probes whether Clark could argue that his term of reimprisonment is
unreasonable. Our review of additional imprisonment imposed on revocation of
supervised release examines whether the term is plainly unreasonable, a standard that we
have described as very narrow. United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007). A
district court need only consider the policy statements found in Chapter 7 of the guidelines
and the sentencing factors set forth in 18 U.S.C. § 3553(a) before fashioning an appropriate
term of reimprisonment. See 18 U.S.C. § 3583(e); United States v. Neal, 512 F.3d 427, 438 (7th
Cir. 2008). In Clark’s case the court acknowledged that the revocation table proposed an
reimprisonment range of seven to thirteen months given Clark’s Grade C violations and his
criminal history category of V. See U.S.S.G. § 7B1.4. The court decided, however, that a
lesser term would preserve public safety and provide “some sort of hope for maybe getting
[him] more on to the right track.” The court noted as well that it sought to avoid an
excessively punitive sentence. That is appropriate consideration.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.