*

 Pursuant to Seventh Circuit Internal Operating Procedure 6(b), this

successive appeal was submitted to the panel of judges that disposed of the Gilbert’s

prior appeal.

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 8, 2007*

Decided November 2, 2007

Before

Honorable RICHARD A. POSNER, Circuit Judge

Honorable ILANA DIAMOND ROVNER, Circuit Judge

Honorable ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-2372

 

UNITED STATES OF AMERICA, )

) Appeal from the United States

Plaintiff-Appellee, ) District Court for the Southern 

) District of Indiana, Indianapolis

) Division

v. )

) No. 93 CR 11

DANIEL P. CANNON, )

) Hon. David F. Hamilton, Judge

Defendant-Appellant. )

O R D E R

Daniel P. Cannon admitted violating the terms of his supervised release by

conspiring to possess, with the intent to distribute, more than five kilograms of

cocaine and possessing a firearm during and in connection with a drug trafficking

offense. The district court revoked Cannon’s release and imposed a prison term of

60 months for the violation, to be served consecutively to the 270-month term he

received on the crimes that triggered the revocation. We initially dismissed

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
2 No. 07-2372

** The government noted on remand that, depending on whether the district

court had originally intended to impose one or two terms of supervised release, the

court potentially was free in revoking Cannon’s release to impose two separate

prison terms of 24 months each, to run consecutively to one another. R. 11 at 4; see

also United States v. Cannon, No. 05-3073 (7th Cir. Oct. 18, 2006) (unpublished),

citing United States v. Eskridge, 445 F.3d 930, 934 (7th Cir. 2006) (consecutive

terms of imprisonment may be imposed when court revokes multiple terms of

supervised release). However, the government did not ask the court to impose two

consecutive prison terms, and the district court indicated that it was disinclined to

impose more than one term. Id. 

Cannon’s appeal of the sentence he received on the revocation of his supervised

release, concluding that the appeal was frivolous. United States v. Douglas, 182

Fed. Appx. 558, 559 (7th Cir. 2006). Subsequently, however, we discovered that

Cannon did have a non-frivolous issue to raise with respect to that sentence: the

sentence appeared to exceed the statutory maximum term for the violation of his

supervised release. We therefore vacated the relevant portion of our original order,

recalled the mandate, reinstated Cannon’s appeal, and ordered briefing of the issue

we had identified. United States v. Cannon, No. 05-3073 (7th Cir. Oct. 18, 2006)

(unpublished order). The parties subsequently agreed that Cannon’s sentence

exceeded the statutory maximum and that he was therefore entitled to

resentencing. In light of that agreement, we summarily vacated Cannon’s sentence

and remanded the case to the district court for resentencing. United States v.

Cannon, No. 05-3073 (7th Cir. April 12, 2007) (unpublished order). On remand, the

district court ordered Cannon to serve a prison term of 24 months, the maximum

permissible term.**

Cannon has again appealed, but his counsel has come to the conclusion that

Cannon has no issue of arguable legal merit left to pursue. Counsel has filed a

motion for leave to withdraw along with a brief documenting his conclusion that

Cannon’s current appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-

45, 87 S. Ct. 1396, 1400 (1967). In that brief, counsel has identified and discussed

the sole issue that counsel believes Cannon might raise in this appeal and

concluded that Cannon can make no non-frivolous argument with respect to that

issue. Pursuant to Circuit Rule 51, we invited Cannon to file a response to his

counsel’s motion to withdraw and to the Anders brief. The 30-day deadline we set

for his response has come and gone without him filing anything. Counsel’s Anders

brief is adequate on its face. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.

1997) (per curiam). Therefore, we shall confine our consideration to the potential

appellate issue that his counsel has identified. See United States v. Wagner, 103

F.3d 551 (7th Cir. 1996).
No. 07-2372 3

Counsel concludes that the only issue Cannon might pursue at this juncture

is the reasonableness of the 24-month sentence that the district court imposed on

remand. The new sentence comports with the statutory maximum of two years. 

See 18 U.S.C. 3583(e)(3). Counsel notes that in United States v. Flagg, 481 F.3d

946, 949 (7th Cir. 2007), cert. denied, 2007 WL 1812221 (Oct. 1, 2007), we left open

the question whether, after the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a sentence imposed after the revocation

of supervised release may be set aside only if it is “plainly unreasonable,” as we had

held prior to Booker, or rather if it is simply “unreasonable.” Last month, however,

we resolved the question, concluding that such a sentence may only be set aside if it

is plainly unreasonable. United States v. Kizeart, — F.3d —, 2007 WL 2938374 (7th

Cir. Oct. 10, 2007).

We agree with counsel that Cannon has no plausible basis on which to argue

that his 24-month sentence is plainly unreasonable. The record reveals that the

district court properly considered the policy statements set forth in Chapter Seven

of the U.S. Sentencing Guidelines and the sentencing factors identified in 18 U.S.C.

§§ 3553(a) and 3583(e). R. 6 at 24-27; R. 8 at 5-8; see United States v. Carter, 408

F.3d 852, 854 (7th Cir. 2005). Cannon’s criminal history includes multiple violent

acts and a prison disciplinary record that the district judge described as “terrible.” 

R. 8 at 7. The criminal conduct that resulted in the revocation of his supervised

release itself involved firearms and posed the potential for even more violence. R.

11 at 7. Finally, based on the nature of the conduct resulting in the revocation and

Cannon’s criminal history category, the Guidelines recommended a sentence of 37

to 46 months, see U.S.S.G. § 7B1.4(a); R. 8 at 8; it was only by virtue of the fact that

the floor of the recommended range exceeded the maximum sentence allowed by

statute that the statutory maximum term of two years became the recommended

sentence, see U.S.S.G. § 7B1.4(b)(1), which of course is the very term that the

district court imposed.

For these reasons, we conclude that Cannon’s appeal is legally frivolous. We

therefore GRANT his counsel’s request to withdraw and DISMISS the appeal.