# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 15, 2021

Decided December 15, 2021

Before

DAVID F. HAMILTON, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

CANDACE JACKSON

‐ AKIWUMI, Circuit Judge

No. 21

‐ 2060

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

AARON B. FLOTA,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 4:15

‐ CR

‐ 40079

‐ JPG

‐ 1

J

. Phil Gilbert,

J udge

.

O R D E R

While Aaron Flota was on supervised release for possessing a destructive device,

see 26 U.S.C. §§ 5861(d), 5871, a probation officer petitioned to revoke his release. He

tested positive for marijuana three times, tested positive for benzodiazepine once, and

had not paid his monthly court

‐ ordered restitution. At the revocation hearing

, Flota

admitted to consuming drugs, but testified that he made the payments. The district

court revoked his supervised release based on his admitted drug

‐ use violations and

delayed resentencing for 60 days for additional drug testing. Two urine tests conducted

between the revocation and sentencing hearings showed marijuana usage, and the court NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with F ED

. R. A PP

. P. 32.1No. 21

‐ 2060 Page 2

imposed a term of 21 months’ reimprisonment with no additional term of supervised

release. Flota filed a notice of appeal, but his appointed counsel asserts that the appeal

is frivolous and moves to withdraw. See Anders v. California

, 386 U.S. 738, 744 (1967).

Flota does not have an unqualified constitutional right to counsel when

appealing a revocation order. See Gagnon v. Scarpelli

, 411 U.S. 778, 789–91 (1973).

Nevertheless, we apply the Anders safeguards to ensure that all potential issues receive

consideration. See United States v. Brown

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

counsel’s brief adequately addresses the potential issues that an appeal of this kind

might involve, and Flota did not respond to counsel’s motion, see C IR

. R. 51(b), we limit

our review to the potential issues she identifies. See United States v. Bey

, 748 F.3d 774,

776 (7th Cir. 2014).

In assessing the potential issues for appeal, counsel considers whether the

revocation is subject to a nonfrivolous challenge on appeal, but she does not first tell us,

as she should, if she consulted with Flota about whether he wishes to contest his

revocation. See United States v. Wheeler

, 814 F.3d 856, 857 (7th Cir. 2016). Regardless, we

agree with counsel that any challenge would be frivolous. The court held a hearing and

gave Flota a chance to defend against the alle gations, as required by Federal Rule of

Criminal Procedure 32.1. Also, as counsel notes, Flota received written notice of the

charges against him, appointed counsel, and an opportunity to allocute. F ED

. R. C RIM

. P.

32.1(b)(2). Finally, Flota admitted to five violations of his release conditions, and his

admissions made revocation mandatory under 18 U.S.C. § 3583(g)(1). United States v.

Jones

, 774 F.3d 399, 403 (7th Cir. 2014).

Regarding his sentence, counsel next considers whether Flota could reasonably

challenge his reimprisonment term as procedurally unsound and rightly concludes that

he could not. Based on Flota’s category VI criminal history from his original sentencing,

and the Grade B violations for drug possession, see U.S.S.G § 7B1.1(a)(2), Flota’s policy

‐

statement range was 21 to 27 months, see id. § 7B1.4, capped by a 24

‐ month statutory

maximum (because the underlying conviction was for a class C felony, see 18 U.S.C.

§ 3583(e)(3)). The government informed the district court of this range at the se ntencing

hearing, and the court accepted it as correct when imposing the 21

‐ month sentence. See

United States v. Salinas

, 365 F.3d 582, 588 (7th Cir. 2004). Further, the district court

adequately considered at sentencing the aggravating and mitigating factors. These

include Flota’s addiction to marijuana, his failed attempts at treatment, and his wife’s

pregnancy. See United States v. Wi lliams

, 887 F.3d 326, 328 (7th Cir. 2018). True, the

district court did not explicitly recite all the § 3553(a) sentencing factors that it was

required to consider under 18 U.S.C. § 3583(e). But we may infer that it considered those

factors based on its finding that Flota’s repeated drug usage, despite available treatmentNo. 21

‐ 2060 Page 3

options and his past, unmet promises that he would reform, warranted reimprisonment

at the low end of the guidelines range. See United States v. Dawson

, 980 F.3d 1156, 1164

(7th Cir. 2020).

Counsel next asks whether Flota could challenge the substantive reasonableness

of the 21

‐ month term of reimprisonment. We would ask only whether the sentence is

“plainly unreasonable.” Jones

, 774 F.3d at 403 (citation om itted). A within

‐ guidelines

sentence is presumed reasonable on appeal, and nothing in this record rebuts that

presumption. See United States v. Jarigese

, 999 F.3d 464, 471 (7th Cir. 2021).

Finally, counsel correctly concludes that any argument based on ineffective

assistance of counsel is best raised on collateral review. See Massaro v. United States

,

538 U.S. 500, 504–05 (2003).

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