NONPRECEDENTIAL DISPOSITION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 11, 2009
Decided June 11, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1706
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 00‐30042‐001
DAVID LEE McCLAIN, Jeanne E. Scott,
Defendant‐Appellant. Judge.
O R D E R
David McClain was convicted of possession of a firearm by a felon, 18
U.S.C. § 922(g)(1), and sentenced to 95 months’ imprisonment and three years’ supervised
release. He was released from prison and commenced the term of supervised release in
September 2007, but soon he was using cocaine and marijuana and in early 2008 his
probation officer petitioned for revocation. At his revocation hearing McClain admitted the
drug use. The district court revoked his release and ordered him to serve another 22
months’ imprisonment. McClain appeals, but his appointed counsel has moved to
withdraw because he cannot identify any nonfrivolous argument to pursue. See Anders v.
California, 386 U.S. 738 (1967). McClain has not accepted our invitation to comment on
counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues outlined in
counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir.
No. 08‐1706 Page 2
2002).
Counsel first considers whether McClain could challenge the calculation of his
criminal history category. At his revocation hearing McClain asked for a new attorney
because his appointed lawyer would not challenge the criminal history points tallied at his
sentencing in 2002 for the § 922(g) offense. The district court denied McClain’s request for
new counsel and then explained how his prior convictions yielded a criminal history
category of V. McClain’s objection to that calculation could have been made in a direct
appeal from the underlying conviction and sentence, but it was not a permissible argument
for the revocation proceeding. See United States v. Miller, 557 F.3d 910, 913 (8th Cir. 2009);
United States v. Lewis, 498 F.3d 393, 395 (6th Cir. 2007); United States v. Moody, 277 F.3d 719,
721 (5th Cir. 2001). Counsel is thus correct that this potential argument would be frivolous.
Counsel then considers whether McClain could challenge the district court’s finding
that he violated the terms of his supervised release. The district court found that McClain
possessed drugs based on McClain’s admission of drug use and six positive drug tests,
which made revocation of his release mandatory. 18 U.S.C. § 3583(g)(1), (g)(4); United States
v. Israel, 317 F.3d 768, 769, 773 (7th Cir. 2003); United States v. Trotter, 270 F.3d 1150, 1154 (7th
Cir. 2001). We agree with counsel that it would be frivolous for McClain to challenge the
district court’s finding that he violated the terms of his supervised release.
Finally counsel considers whether McClain might argue that his term of
reimprisonment is unreasonable. We will uphold a term of reimprisonment imposed on
revocation of supervised release unless it is “plainly unreasonable,” a very narrow
standard. United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007). In selecting an
appropriate term, the district court must consider the policy statements in the 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
McClain’s Grade B violation, see U.S.S.G. § 7B1.4(a)(2), combined with his criminal history
category of V, yielded a range of 18 to 24 months. See U.S.S.G. § 7B1.4(a). Before settling on
22 months, the court considered the § 3553(a) factors, even going so far as to discuss each
prior conviction in McClain’s criminal history. Thus we agree with counsel that any
challenge to McClainʹs term of reimprisonment would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.