NONPRECEDENTIAL DISPOSITION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 June 2, 2021
Decided June 2, 2021
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3200
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v. No. 06-cr-14-bbc-1
EDGAR J. DELAROSA, Barbara B. Crabb,
Defendant-Appellant. Judge.
ORDER
While on supervised release in the Eastern District of Wisconsin for convictions
in the Western District of Wisconsin for possessing a firearm as a felon, 18 U.S.C.
§ 922(g)(1), Edgar Delarosa was charged in Illinois with aggravated domestic battery,
720 ILCS 5/12-3.3, and harassment, id. 5/26.5-3(a)(5). He absconded for three months,
and his probation officer petitioned to revoke his release. At the revocation hearing,
Delarosa conceded that he failed to report to the probation office, left the judicial district
without permission, and did not give his new address. Based on these violations, plus
evidence that Delarosa had consumed alcohol, the district court revoked his supervised
release and sentenced him to one year in prison with no further supervision. Delarosa
No. 20-3200 Page 2
filed a notice of appeal, but his attorney asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967).
Delarosa does not have an unqualified constitutional right to counsel when
appealing a revocation order. See Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1973).
Nevertheless, we apply the Anders safeguards to ensure that all potential issues receive
consideration. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Because
counsel’s brief adequately addresses the potential issues that an appeal of this kind
might involve, and Delarosa did not respond to counsel’s motion, see CIR. R. 51(b), we
limit our review to the issues counsel raises. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014). Counsel reports that Delarosa does not wish to retract his admissions
and challenge the revocation itself, so we focus only on whether Delarosa could
challenge his sentence. See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
Counsel first evaluates whether Delarosa could challenge the calculation of his
reimprisonment range under the policy statements in Chapter Seven of the Sentencing
Guidelines. The district court correctly determined that Delarosa’s admitted violations
were all Grade C, the lowest level. See U.S.S.G. § 7B1.1(a)(3)(B). So was drinking
alcohol—which Delarosa did not admit. See id. Based on that classification from his
original sentence, the district court properly applied a range of 7 to 13 months. See id.
§ 7B1.4(a). Further, because the underlying gun offense was a Class C felony, 18 U.S.C.
§ 3559(a)(3), the court correctly calculated the two-year statutory maximum. See id.
§ 3583(e)(3). We agree with counsel that Delarosa could not assert any error regarding
these calculations.
Next, counsel rightly rejects any argument that the district court improperly
relied on conduct from Delarosa’s pending criminal charges when selecting his
sentence. Courts may consider pending charges during sentencing, but the criminal
conduct must be proved by a preponderance of the evidence. United States v. Holton,
873 F.3d 589, 591 (7th Cir. 2017). Here, the court found that Delarosa physically
assaulted his nephew and sent harassing messages to his niece and sister. But the court
emphasized that it would “not take the defendant’s conduct in these incidents into
consideration … in determining a sentence” so that the state court could “handle these
matters.” And the court did not; it sentenced Delarosa within the range for a Grade-C
violation (7 to 13 months), not the Grade-B range (18 to 24) that would have applied if
the court revoked his supervision for committing a new crime. See U.S.S.G. § 7B1.4(a).
Counsel also concludes, correctly, that it would be frivolous to challenge the
finding that Delarosa drank alcohol (which a special condition of his supervision
No. 20-3200 Page 3
prohibited), based on his nephew’s statement to police officers that Delarosa was
intoxicated when the fight occurred. The alcohol use was not the basis of any pending
charge, and the district court had an evidentiary basis for its conclusion. A court may
consider hearsay during sentencing, and Delarosa did not submit any evidence to
dispute the statement. See United States v. Brown, 973 F.3d 667, 712 (7th Cir. 2020).
Counsel also explores but rightly rejects a challenge to the reasonableness of the
one-year term of reimprisonment. Review is deferential; we would ask only whether
the sentence is “plainly unreasonable.” United States v. Jones, 774 F.3d 399, 403 (7th Cir.
2014) (citation omitted). Here, the district court adequately addressed the 18 U.S.C.
§ 3553(a) factors, referring to the need to hold Delarosa accountable for his violations,
promote respect for the law, protect the community, and deter further crimes.
See id. § 3583(e). Then, it selected a sentence within the Guidelines range and below the
two-year statutory maximum. We would not determine such a sentence to be plainly
unreasonable. See Jones, 774 F.3d at 405.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.