# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 19, 2019

Decided December 20, 2019

Before

J OEL M. FLAUM, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19

‐ 2044

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

AARON WYATT,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 98

‐ CR

‐ 40002

‐ JPG

‐ 3

J

. Phil Gilbert,

J udge

.

O R D E R

Aaron Wyatt served a 264

‐ month prison sentence for his role in a

drug

‐ distribution conspiracy. Within a month of his release in August 2018, he admitted

to violating multiple conditions of his five

‐ year term of supervised release, and after

further violations, the probation office petitioned to revoke his supervised release.

Based on Wyatt’s admission to several violations, including possessing narcotics, the

district court sentenced him to twelve months’ imprisonment, below the range

recommended by the applicable policy statement in the sentencing guidelines.

Wyatt appeals the revocation, but his appointed counsel asserts that the appeal is

frivolous and moves to withdraw. Because a constitutional right to counsel in a

revocation proceeding exists only under the Due Process Clause and on a “case

‐ by

‐ case

basis,” Gagnon v. Scarpelli

, 411 U.S. 778, 790–91 (1973), the safeguards of Anders NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 19

‐ 2044 Page 2

v. California

, 386 U.S. 738 (1967) need not govern our review. Nonetheless, it is our

practice to follow them. United States v. Brown

, 823 F.3d 392, 394 (7th Cir. 2016). Wyatt

did not respond to counsel’s motion to withdraw. See CIR. R. 51(b). Counsel’s brief

explains the nature of the case and addresses the potential issues that this type of

appeal would be expected to involve, and the analysis appears thorough. We therefore

limit our review to the subjects she covers, see United States v. Wheeler

, 814 F.3d 856,

857 (7th Cir. 2016) (per curiam), with one exception.

Counsel does not address whether Wyatt wants to challenge whether he

knowingly and voluntarily made the admissions on which his revocation was based.

See Wheeler

, 814 F.3d at 857; United States v. Knox

, 287 F.3d 667, 670–71 (7th Cir. 2002).

Counsel should have consulted with Wyatt about this issue and told us his decision.

See Wheeler

, 814 F.3d at 857; United States v. Konczak

, 683 F.3d 348, 349 (7th Cir. 2012);

Knox

, 287 F.3d at 670–71. Wyatt, however, not only admitted that he violated the

conditions of his release, he tested positive for drug use and confirmed under oath that

his admissions were voluntary. Given that the district court sentenced him significantly

below the resentencing range, and that reopening the revocation proceeding could

result in a higher sentence, we see no nonfrivolous argument to raise with respect to his

admissions. See Konczak

, 683 F.3d at 349; Knox

, 287 F.3d at 671.

Counsel first considers whether Wyatt could argue that the district court

improperly revoked his supervised release and correctly concludes that he could not.

Revocation was mandatory under 18 U.S.C. § 3583(g)(1) because Wyatt admitted to

possessing, on separate occasions, methamphetamine, heroin, and cocaine, violating the

condition that he “shall not illegally possess controlled substances.” See United States

v. Jones

, 774 F.3d 399, 403 (7th Cir. 2014); see also U.S.S.G. § 7B1.3(a)(1) (“Upon a finding

of a Grade A or B violation, the court shall revoke

... supervised release.”).

Counsel also considers, and rightly rejects, the argument that the district court

did not comply with Federal Rule of Criminal Procedure 32.1(b)(2). As Wyatt confirmed

at the revocation hearing, the government provided notice of the allegations against

him, and he was represented by counsel and satisfied with her advice. The court also

afforded him an opportunity to make a statement and present information in

mitigation. See Jones

, 774 F.3d at 403.

Counsel also evaluates whether Wyatt could challenge his sentence but properly

resolves that doing so would be frivolous. Wyatt did not object to the district court ʹ s

application of the policy statements in Chapter 7 of the Sentencing Guidelines; indeed,

he affirmatively negotiated the sentence that the district court ultimately imposed. At

best, therefore, our review would be for plain error. See Wheeler

, 814 F.3d at 857;No. 19

‐ 2044 Page 3

see generally United States v. Gibson

, 356 F.3d 761, 765–67 (7th Cir. 2004) (Defendants who

bargain for a specific sentence cannot appeal that sentence unless the guilty plea was

involuntary, the sentence was imposed in violation of the law, or the sentence is greater

than the one he bargained for.).

We could not find such an error in this case. In selecting a sentence, the district

court correctly determined that Wyatt’s most serious violations—heroin, cocaine, and

methamphetamine possession—were Grade B, and that this ranking controlled.

See U.S.S.G. § 7B1.1(a)(2), (b). It then properly calculated Wyatt’s sentencing range for

each count based on the grade, the criminal history category of VI, and the statutory

maximum sentences of the original crimes of conviction. See U.S.S.G. § 7B1.4(a), (b)(1);

18 U.S.C. §§ 3559(a)(3), 3583(e)(3); 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Finally, after

discussing the seriousness of the violations (that Wyatt had begun using drugs almost

immediately upon his release) and stating that Wyatt would likely recidivate unless he

changed his “entire lifestyle,” the court “reluctantly” accepted the parties’ joint

sentencing recommendation. See 18 U.S.C. § 3553(a). Calling the sentence a “break,” the

district court imposed twelve months’ imprisonment, below the range suggested by the

policy statements, and three years of supervised release. This explanation was

sufficient. See United States v. Boultinghouse

, 784 F.3d 1163, 1177 (7th Cir. 2015);

see also United States v. Peterson

, 852 F.3d 629, 631 (7th Cir. 2017) (sentence below the

policy

‐ statement range).

Finally, counsel concludes that any claim of ineffective assistance of counsel is

best raised in a collateral proceeding so that Wyatt can develop an evidentiary record.

Massaro v. United States

, 538 U.S. 500, 508–09 (2003); Delatorre v. United States

, 847 F.3d

837, 845 (7th Cir. 2017). Noting the narrowness of any such claim to begin with,

see Gagnon, 411 U.S. at 790–91; Brown

, 823 F.3d at 394, we agree that it is best reserved

for a collateral hearing, see also United States v. Jones

, 861 F.3d 687, 690

‐ 91 (7th Cir. 2017)

(assuming but not deciding that an ineffective

‐ assistance

‐ of

‐ counsel claim can be

brought based on a Fifth Amendment due

‐ process right at a revocation hearing).

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.