NONPRECEDENTIAL DISPOSITION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 January 22, 2009
Decided February 5, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐2712
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 2:02‐cr‐00127‐RTR‐1
BENNIE HYCHE,
Defendant‐Appellant. Rudolph T. Randa,
Chief Judge.
O R D E R
Bennie Hyche pleaded guilty to transferring a gun to a felon, see 18 U.S.C.
§ 922(d)(1), and was sentenced to 33 months’ imprisonment and 3 years’ supervised
release. He completed his prison sentence and began serving his term of supervised
release in January 2005, but in December of that year Mr. Hyche was involved in the
murder of a rival gang member. After Mr. Hyche pleaded guilty to reckless homicide
in state court and was sentenced to 15 years’ imprisonment, his federal probation officer
petitioned the district court to revoke his supervised release. Mr. Hyche waived his
right to contest the revocation, and in exchange the Government recommended that the
term of reimprisonment run concurrently with his state sentence. The court revoked
No. 08-2712 Page 2
Mr. Hyche’s supervised release and ordered him reimprisoned for 24 months, the
statutory maximum. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(e)(3). Declining the
Government’s recommendation, however, the court ordered the prison term to run
consecutively with his state sentence.
Mr. Hyche filed a notice of appeal, but his appointed attorney cannot identify
any nonfrivolous argument and has moved to withdraw. See Anders v. California, 386
U.S. 738 (1967). Mr. Hyche has declined our invitation to comment on counsel’s
submission, so our review is limited to the one potential issue considered in counsel’s
facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel contemplates challenging the term of reimprisonment. We would
uphold that term unless it is “plainly unreasonable,” one of the narrowest standards of
judicial review available. United States v. Kizeart, 505 F.3d 672, 674‐75 (7th Cir. 2007).
Before imposing a term of reimprisonment, a district court must consider the policy
statements in the sentencing guidelines, see U.S.S.G. ch. 7, pt. B, and the sentencing
factors set out in 18 U.S.C. § 3553(a). United States v. Neal, 512 F.3d 427, 438 (7th Cir.
2008). In this case, the court acknowledged that Mr. Hyche’s Grade A violation, see
U.S.S.G. § 7B1.1(a)(1), combined with his criminal history category of VI, yielded a
guidelines range of 33 to 41 months’ reimprisonment. The court correctly noted,
however, that by statute the term was capped at two years. The court then weighed the
§ 3553(a) factors, including the nature of the crime underlying the revocation, Mr.
Hyche’s history and characteristics, and the need for the penalty to reflect the
seriousness of Mr. Hyche’s new criminal conduct. Finally, although the court
commented that the guidelines provision uses “the imperative shall” in its statement
that any term of reimprisonment upon revocation be served consecutively and that this
“dictates” a consecutive term, in light of the discussion as a whole, we are confident that
the court understood‐‐as it stated‐‐that this provision is a recommendation only. See
U.S.S.G. § 7B1.3(f); United States v. Huusko, 275 F.3d 600, 603 (7th Cir. 2001). Thus, the
court’s consideration of the guidelines and statutory factors was adequate, and we
agree with counsel that any challenge to Mr. Hyche’s term of reimprisonment would be
frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.