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NONPRECEDENTIAL DISPOSITION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 12, 2010
Decided May 14, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐3785
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:98‐cr‐40075‐JPG‐2
FERNANDEZ M. WHITE, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Fernandez White seeks appellate review of a district court order revoking his
supervised release. His appointed counsel moves to withdraw, unable to find a
nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738 (1967). Counsel identifies
three potential issues in her brief, and Mr. White’s response, see CIR. R. 51(b), identifies no
others, so we address only the issues identified by counsel. See United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002). We conclude that both are frivolous.
In March 2008 Mr. White completed a prison term for two drug‐conspiracy
convictions and began serving a five‐year term of supervised release. Two months later Mr.
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No. 09‐3785 Page 2
White violated the terms of his supervised release, so the district court reimprisoned him for
three days (time served) and imposed a new five‐year term of supervision, the first six
months of which were to be served in a re‐entry facility. After only weeks at the facility,
however, Mr. White left and did not return. When law enforcement officers caught up with
him more than a year later, he gave them a false name. He was also in possession of
marijuana.
The government petitioned to revoke Mr. White’s supervised release, alleging that
Mr. White committed multiple violations of the terms of his release: he illegally possessed
marijuana; he obstructed justice by lying to police about his name; he failed to remain in the
re‐entry center; he failed to notify his probation officer about a change in address; and he
failed to complete a substance‐abuse program. Mr. White admitted these allegations at a
revocation hearing in November 2009, and the district court revoked Mr. White’s
supervised release and imposed 36 months’ reimprisonment to be followed by 12 months’
supervised release.
In her Anders submission, counsel first considers whether Mr. White could argue that
the district court abused its discretion when it revoked his supervised release. As counsel
notes, however, this argument would be frivolous, for the district court had no discretion in
the matter. After Mr. White admitted to possessing marijuana, a controlled substance, the
court was required to revoke his supervised release and impose a sentence that included a
term of imprisonment. 18 U.S.C. § 3583(g)(1); United States v. Israel, 317 F.3d 768, 769 (7th
Cir. 2003).
Counsel next considers whether Mr. White could challenge his term of
reimprisonment as unreasonable. But counsel correctly concludes that this argument, too,
would be frivolous because the reimprisonment term was not “plainly unreasonable.”
United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007). The court correctly determined that
in light of Mr. White’s prior drug convictions, his possession of marijuana was a Grade B
violation. See United States v. Trotter, 270 F.3d 1150, 1151‐52 (7th Cir. 2001). Coupled with
his criminal history category of IV, the violation yielded a guideline range of 12 to 18
months and carried a statutory maximum of four years and 362 days. See 21
U.S.C. § 841(b)(1)(A); 18 U.S.C. § § 3559(a)(1), 3583(e)(3); U.S.S.G. § 7B1.4(a). The district
court settled on 36 months, noting the severity of the offense and doubting that Mr. White, a
drug addict who had once before violated his supervised release, was “supervisable.” The
district court’s explanation demonstrates that it considered the applicable policy statements,
see U.S.S.G. ch. 7, pt. B, and the factors set out in 18 U.S.C. § 3553(a), see United States v.
Salinas, 365 F.3d 582, 588‐89 (7th Cir. 2004); United States v. Hale, 107 F.3d 526, 530 (7th Cir.
1997).
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Next, counsel considers whether Mr. White could identify any procedural errors in
the revocation proceedings. But counsel correctly explains that any procedural challenge
would be frivolous because the district court complied with Federal Rule of Criminal
Procedure 32.1(b)(2). Mr. White received written notice of the alleged violations, was
allowed to speak in mitigation of his conduct, and was at all times represented by counsel.
Except for a short‐lived request for new counsel, which Mr. White promptly withdrew, the
proceedings carried on without any irregularities.
Finally, counsel correctly points out that Mr. White would be better off saving any
claim of ineffective assistance of counsel for collateral review, where the record can be more
fully developed. See Massaro v. United States, 538 U.S. 500, 504‐505 (2003); United States v.
Harris, 394 F.3d 543, 557‐558 (7th Cir. 2005).
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal. In light
of the foregoing, we also deny Mr. White’s request for new counsel.
United States v. Fernandez White
Combined Opinion