United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 24, 2020 

Decided February 24, 2020 

Before 

DIANE P. WOOD, Chief Judge 

WILLIAM J. BAUER, Circuit Judge 

MICHAEL B. BRENNAN, Circuit Judge

No. 19-2541 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

MARLON P. BUSH, 

 Defendant-Appellant.

 Appeal from the United States District 

Court for the Southern District of Illinois. 

No. 3:18-CR-30077-SMY-1 

Staci M. Yandle, 

Judge. 

O R D E R 

While serving as the director of the public library in East Saint Louis, Illinois, 

Marlon Bush stole over $48,000 of the library’s funds by making personal purchases on 

its credit cards and paying himself more than his approved salary. He pleaded guilty to 

one count of wire fraud, 18 U.S.C. § 1343, and one count of embezzlement, 18 U.S.C. 

§ 666(a)(1)(A). The district court assessed Bush a within-guideline sentence of 

12 months’ imprisonment and two years of supervised release; the first six months of 

the latter would be on home detention. The court also ordered that Bush pay restitution 

of $48,102.86. Bush appealed, but his appointed counsel asserts that the appeal is 

frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Bush did 

not respond to counsel’s brief, see CIR. R. 51(b), which explains the nature of the case 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-2541 Page 2 

and addresses the potential issues that an appeal of this kind might be expected to 

involve. Because counsel’s brief appears thorough, we limit our review to the subjects 

that he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). 

Counsel represents that he consulted with Bush and confirmed that Bush does 

not wish to withdraw his guilty plea, so he properly omits discussion of arguments 

related to the validity of his plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 

2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). 

Counsel first considers whether Bush could attack the calculation of his guideline 

sentencing range but properly concludes that doing so would be frivolous. By the time 

of the sentencing hearing, Bush had withdrawn his objections to the Presentence 

Investigation Report, and at the hearing, he agreed with the district court’s calculations 

based on the report. See United States v. Fuentes, 858 F.3d 1119, 1121 (7th Cir. 2017). And, 

like counsel, we cannot discern any nonfrivolous challenge to the increase in his base 

offense level for the amount of the library’s loss, U.S.S.G. § 2B1.1(b)(1)(D), or the 

enhancement for abusing a position of public trust, id. § 3B1.3. 

Next, counsel discusses whether Bush could argue that imposing home detention 

as a condition of supervised release was erroneous, but he correctly concludes that the 

argument would be frivolous. The PSR did not recommend home confinement, but 

Bush did not object when it was discussed at sentencing—indeed, he suggested 

splitting his sentence (albeit a shorter one) between imprisonment and home 

detention—so at most we would review for plain error. See United States v. Hunt, 

930 F.3d 921, 924 (7th Cir. 2019). As counsel discusses, home detention is a discretionary 

condition under 18 U.S.C. § 3563(b)(19) that is permitted “only as an alternative to 

incarceration,” which is how it was imposed here. Home detention was also proper 

under U.S.S.G. § 5C1.1(d) because Bush’s sentencing range of 12 to 18 months is among 

the ranges for which the condition is available, and the duration did not exceed the 

maximum allowed. 

Counsel also considers challenging the other conditions of Bush’s supervised 

release, but he rightly concludes that Bush waived any such arguments. Before 

sentencing, Bush received the PSR, which set forth the recommended conditions of 

supervised release, including community service. Bush did not object, and he then 

affirmatively agreed to those conditions at the hearing, so he cannot challenge them on 

appeal. See United States v. Flores, 929 F.3d 443, 447–48 (7th Cir. 2019). 
No. 19-2541 Page 3 

Counsel next discusses whether Bush could argue that the district court failed to 

explain his sentence or address his arguments in mitigation, see Gall v. United States, 552 

U.S. 38, 51 (2007), but he is right that Bush waived those arguments as well. At the end 

of the sentencing hearing, the judge asked Bush whether he wanted any further 

explanation of the statutory factors and whether the judge had adequately addressed 

Bush’s arguments in mitigation. Bush responded that the sentence was adequately 

explained and the arguments in mitigation adequately addressed. See United States v. 

Orozco-Sanchez, 814 F.3d 844, 849 (7th Cir. 2016). 

Finally, counsel correctly recognizes that any challenge to the substantive 

reasonableness of Bush’s sentence would also be futile. Bush’s 12-month prison 

sentence is at the bottom of the guideline range (home detention is not imprisonment, 

United States v. Elkins, 176 F.3d 1016, 1020–21 (7th Cir. 1999)), so we would presume it to 

be reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). That 

presumption is rebutted if the sentence is unreasonable “when measured against the 

factors set forth in § 3553(a).” Id. Here, the court reasoned that 12 months in prison was 

sufficient to “send a clear message that public corruption will not be tolerated,” while 

also accounting for “truly mitigating factors” like Bush’s insignificant criminal history 

and that he “appears to pose no risk of violence.” And, the district court explained, 

adding home detention and supervised release reflects the seriousness of Bush’s 

offense, which involved taking resources from “an impoverished community” that is 

“vulnerable to corruption and routinely taken advantage of by [its] ... leaders.” On that 

record, it would be frivolous to argue that Bush’s sentence was substantively 

unreasonable. 

We GRANT the motion to withdraw and DISMISS the appeal.