United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 4, 2022 

Decided April 5, 2022 

Before

WILLIAM J. BAUER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 20-3162 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v. 

BYRON PIERSON, 

Defendant-Appellant.

Appeal from the United States District 

Court for the Southern District of Indiana, 

Indianapolis Division. 

No. 1:12CR00026-001 

James P. Hanlon, 

Judge.

O R D E R

Byron Pierson appeals the district court’s revocation of his supervised release. 

But his appointed counsel believes that the appeal is frivolous and moves to withdraw. 

See Anders v. California, 386 U.S. 738 (1967). We grant the motion to withdraw and 

dismiss the appeal.

A defendant does not have an unqualified constitutional right to counsel in 

revocation proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 790–91 (1973), so the Anders

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 20-3162 Page 2 

safeguards need not govern our review. Even so, our practice is to apply them. 

See, e.g., United States v. Wheeler, 814 F.3d 856 (7th Cir. 2016). Because counsel’s brief 

appears adequate and addresses the issues we would expect in an appeal of this kind, we 

limit our review to the issues she raises in the brief as well as those that Pierson addresses 

in his response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); CIR. R. 51(b). 

This appeal has a complicated procedural history. In October 2017, Pierson began 

a two-year term of supervised-release, one condition of which barred possession of 

firearms. Five months into his term of supervision, he was arrested, and police found a 

gun in his waistband. The probation office then sought to revoke his supervised release. 

Shortly thereafter, federal prosecutors, relying on the conduct set forth in the 

revocation petition, charged Pierson with being a felon in possession, in violation of

18 U.S.C. § 922(g)(1). Pierson was detained pending both the revocation proceedings 

and federal prosecution. 

Both proceedings bogged down. In the criminal case, Pierson’s attorney

requested and received six continuances. In the revocation proceedings, more than a 

year passed before Pierson agreed to plead guilty to the new federal offense (18 CR 155) 

and admit to the supervised-release violations (12 CR 26). No change-of-plea hearing 

was held, however. Later, Pierson’s retained counsel moved to withdraw in both the 

revocation case and the new federal case. A magistrate judge granted the motion and 

appointed the federal defender to represent him in both the criminal prosecution and 

the revocation proceedings. But, a few months later, the district judge allowed Pierson 

to proceed pro se in the revocation case.

Pierson then moved to withdraw from the agreement in the revocation case and 

to dismiss the petition to revoke supervision. He argued that his supervised-release 

term had long since expired and could not be tolled because the delays in his 

adjudication had been unreasonable. 

The district judge allowed Pierson to withdraw from the agreement but refused 

to dismiss the petition. Based on the tolling provision in 18 U.S.C. § 3583(i), the judge

determined that Pierson had been responsible for most of the delays—meaning the 

delays were reasonable—and thus Pierson’s term of supervision had not expired. 

A magistrate judge held a hearing on the petition to revoke supervised release 

and recommended that the petition be granted. In her report, she recommended finding 

that Pierson was guilty of possessing a firearm (among other violations), revoking his 
No. 20-3162 Page 3 

supervised release, and sentencing him to 18 months’ imprisonment with no additional 

supervised release. 

Pierson objected to the report, arguing that he was entitled to credit for his time 

served in pre-revocation detention. The district judge overruled the objection, saying 

that time-served credit was left to the Bureau of Prison’s discretion. The Bureau ended 

up crediting Pierson for his pre-revocation detention. 

In the criminal case, a jury found Pierson guilty of possessing a firearm as a 

felon. The judge there sentenced him to 96 months’ imprisonment, to run concurrently 

with the revocation sentence.

Counsel first considers—and properly rejects as frivolous—an argument that the 

district court lacked authority to revoke his supervised release because the term had 

been set to expire a year earlier. (His term, which had been set to expire in October 2019, 

was not revoked until October 2020.) An ongoing supervised-release term is tolled

during a period of pretrial detention that is later credited as time served for a 

subsequent, separate conviction. Mont v. United States, 139 S. Ct. 1826, 1829, 1832 (2019). 

Pierson’s term of supervised release thus was tolled when he was detained for the new 

criminal conduct, beginning in April 2018. Some of the time Pierson spent in pretrial 

detention has been credited to his 18-month supervised-release sentence and some has 

been credited to the sentence on the new federal offense. 

Pierson points us to United States v. Block, 927 F.3d 978, 981–82 (7th Cir. 2019), 

where we said that defendants’ supervised-release terms do not toll when they are 

imprisoned only for a supervised-release revocation. But Block is inapposite because it 

does not address the situation like Pierson’s, in which a defendant subsequently is 

convicted of another crime. 

Counsel also considers whether Pierson could raise a nonfrivolous challenge 

regarding the 30-month delay between his arrest and his revocation hearing. 

Rule 32.1(b)(2) of the Federal Rules of Criminal Procedure requires that a revocation 

hearing, unless waived, be held “within a reasonable time.” But on the facts of this case, 

a challenge to the timing of the hearing would be frivolous. One of the factors we would 

rely on to assess the delay of revocation proceedings is the reason for the delay. 

See United States v. Rasmussen, 881 F.2d 395, 398 (7th Cir. 1989). And here Pierson—often 

through his lawyer—was responsible for most of the delay, having requested at least 

half a dozen continuances or extensions of time. See United States v. Robey, 831 F.3d 857, 

864 (7th Cir. 2016) (no violation where defense requested ten continuances, requested 
No. 20-3162 Page 4 

multiple changes in counsel, and entered and withdrew from a plea agreement);

Ashburn v. Korte, 761 F.3d 741, 752 (7th Cir. 2014) (same when defense requested six 

continuances). 

Pierson responds that these delays should not be attributed to him because it was 

his attorney who requested the continuances without his knowledge or consent. But

Pierson, as the principal of his attorney, is charged with the delays his attorney caused, 

even if his attorney did not consult him beforehand. Vermont v. Brillon, 556 U.S. 81, 90 

(2009); Ashburn, 761 F.3d at 753. 

Counsel also considers whether Pierson could raise a nonfrivolous challenge 

under the Double Jeopardy Clause, given that his possession of a firearm served as the 

basis for both his supervised-release revocation and subsequent criminal conviction. 

But counsel properly rejects this challenge as frivolous because double jeopardy is not 

implicated if a defendant’s supervised release is revoked for committing a crime and he 

later is convicted of committing the same crime. United States v. Wyatt, 102 F.3d 241, 245 

(7th Cir. 1996); accord Ford v. Massarone, 902 F.3d 309, 322 (D.C. Cir. 2018). Pierson tries

to distinguish Wyatt on grounds that his revocation sentence post-dated the expiration 

of his supervised release, but this argument is beside the point because his supervisedrelease term had not expired. 

Counsel next asks whether Pierson could raise a nonfrivolous challenge to his 

sentence or any legal or factual conclusions the magistrate judge made at the revocation 

hearing. But counsel properly concludes that any such challenge would be frivolous 

because Pierson waived it. Defendants waive appellate review of an issue from a 

magistrate judge’s report and recommendation when they fail to make a similar 

objection to the district judge. United States v. Gibson, 958 F.3d 661, 662–63 (7th Cir. 

2020); FED. R. CRIM. P. 59(b)(2). Here, Pierson made only one objection to the magistrate 

judge’s report, and the district judge overruled that objection. By not objecting to any 

other aspect of the report (i.e., procedural errors, factual findings, the decision to 

revoke, or the revocation sentence), Pierson waived any such challenges. 

Finally, Pierson wishes to challenge the lawfulness of his pre-revocation 

detention. But challenges to pretrial detention become moot when the detention ends—

either by release or conviction. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540–

41 (2018). 

We GRANT counsel’s motion to withdraw and DISMISS the appeal.