In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 16‐2493, ‐2494
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL PETERSON,
Defendant‐Appellant.
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Appeals from the United States District Court for the
Western District of Wisconsin.
Nos. 3:06‐cr‐00139‐bbc‐1 & 3:15‐cr‐00142‐bbc‐1
Barbara B. Crabb, Judge.
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SUBMITTED FEBRUARY 2, 2017 — DECIDED FEBRUARY 14, 2017
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Before WOOD, Chief Judge, and POSNER and KANNE, Cir‐
cuit Judges.
POSNER, Circuit Judge. In 2006 Michael Peterson was con‐
victed of distributing crack cocaine, see 21 U.S.C. § 841(a)(1),
for which he served eight years in prison. In January 2014,
fewer than two weeks after his release and the start of his
term of supervised release, Peterson was arrested for drunk
2 Nos. 16‐2493, ‐2494
driving while outside the judicial district without permis‐
sion. His probation officer did not seek revocation at that
time, and for nearly two years afterward Peterson took posi‐
tive steps toward reestablishing his life: He started a busi‐
ness, got married, and began caring for his new stepson.
But in November 2015 Peterson encountered a long‐term
adversary at a bar. According to Peterson the two men en‐
gaged in a verbal altercation (who started it or what it was
about remains undetermined), but a surveillance video
shows Peterson pursuing his adversary as he left the bar
armed with a pistol lent him by a friend “as a means of de‐
fense.” (Why Peterson pursued him is another undeter‐
mined feature of the case.) Out on the street the other man
attacked Peterson with a knife, seriously wounding him.
Though his borrowed gun was in his waistband, Peterson
didn’t attempt to use it but instead hid it under a garbage
can after fleeing two police officers who had observed the
attack.
Arrested and later charged with being a felon in posses‐
sion of a gun in violation of 18 U.S.C. § 922(g), Peterson
pleaded guilty and was sentenced to 48 months’ imprison‐
ment, 9 months below the guidelines imprisonment range
calculated by the district judge. The judge revoked Peter‐
son’s supervised release, the terms of which he’d violated by
having been armed, and replaced it with a 6‐month term of
imprisonment to run consecutively to the 48‐month term for
the illegal possession. See 18 U.S.C. § 3583(e)(3).
Peterson filed notices of appeal from both the revocation
of supervised release and his new conviction, but his ap‐
pointed counsel advises us that both appeals are frivolous,
and therefore seeks to withdraw from representing his cli‐
Nos. 16‐2493, ‐2494 3
ent, citing Anders v. California, 386 U.S. 738 (1967). We invited
Peterson to respond to counsel’s motion, but he has not done
so. Counsel represents that he consulted Peterson and con‐
firmed that he neither wants his guilty plea set aside nor
wishes to contest the revocation of supervised release. Left
to consider only whether a nonfrivolous argument could be
made against the procedural or substantive reasonableness
of his client’s prison terms, counsel concluded that any chal‐
lenge to the length of those terms would be futile because
the district judge had correctly calculated both the guide‐
lines range and the policy‐statement range applicable to the
revocation of supervised release, see U.S.S.G. §§ 7B1.1(a)(2),
7B1.4, had treated the ranges as advisory, had evaluated Pe‐
terson’s arguments in mitigation and applied the sentencing
factors set forth in 18 U.S.C. § 3553(a), and finally had im‐
posed a prison sentence below the applicable guidelines and
policy‐statement ranges. See United States v. Jones, 774 F.3d
399, 404–05 (7th Cir. 2014); United States v. Neal, 512 F.3d 427,
438 (7th Cir. 2008).
Counsel further notes that challenging the judge’s deci‐
sion to run Peterson’s two prison terms consecutively—
which counsel considers to be Peterson’s major complaint
about the sentence—would conflict with the Sentencing
Commission’s advice that consecutive terms be imposed
when revocation of supervised release is the result of a new
prison sentence. See U.S.S.G. § 7B1.3(f) and Application Note
4; United States v. Taylor, 628 F.3d 420, 423–24 (7th Cir. 2010).
Moreover, both sentences that the judge imposed on Peter‐
son were below their guideline ranges.
Counsel’s motion to withdraw is granted and the appeals
are dismissed.