# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted January 6, 2015
Decided January 13 , 2015

Before

DIANE P. WOOD

, Chief Judge

RICHARD D. CUDAHY

, Circuit Judge

JOHN DANIEL TINDER

, Circuit Judge

No. 14

- 2293

UNITED STATES OF AMERICA

, Plaintiff

- Appell ee ,

v

.

ZAN MORGAN

, Defendant

- Appell ant

. Appeal from the United States District
Court for the Western District of Wisconsin

.

No. 02

- CR

- 141

- C

- 02

Barbara B. Crabb

, Judge

.

O R D E R

The district court reimprisoned Zan Morgan for 21 months after he admitted violating several conditions of his supervised release

. Morgan filed a notice of appeal

, but his appointed attorney asserts that the appeal is frivolous and seeks to withdraw
under Anders v. California , 386 U.S. 738 (1967). Counsel has submitted a brief that explains the nature of th e case and addresses the issues that an appeal of this kind might be expected to involve. We invited Morgan to comment on counsel’s motion, but he has not responded

. See C IR

. R. 51(b). T he analysis in the brief appears to be thorough, so we limit our revie w to the subjects that counsel discusse s

. See United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner , 103 F.3d 551, 553 (7th Cir. 1996). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 14

- 2293 Page 2

Morgan was convicted in 2003 of distributing crack cocaine, 21 U.S.C. § 841(a)(1),
and was s entenced to 154 months’ imprisonment and 60 months’ supervised release. Morgan’s offense involved at least 5 grams of crack, which, under the version of 21 U.S.C. § 841(b)(1) then in effect, made the crime a Class B felony. See 21 U.S.C. § 841(b)( 1)(B)(iii) ( 2000 ) ; 18 U.S.C. § 3559(a)(2) ( 2000 ). The district court reduced Morgan’s prison sentence to 120 months in 2009, s ee 18 U.S.C. § 3582(c)(2), and in May

2011 he was released from prison and began his term of supervised release.

About a year lat er, Morgan admitted to a probation officer that he had used marijuana and also tried to persuade an employee of the vendor conducting drug testing for the probation office to falsify the results of his urinalysis. At that time the district court simply adm onished Morgan to comply w ith the terms of his supervised release

, but in July 2013 police in Wisconsin arrested him for possessing drugs and a gun , which prompted the probation office to seek revo cation

. T he state dismissed its charg es, so the
district co urt decided against revocation . The court warned Morgan , however, to
dissociate from persons engag ed in criminal activity. Not long after this M organ failed

a nother drug test and admitted smok ing marijuana

. His probation office r recommended
that he attend drug counseling and continue to be tested.

I n May 2014 the probation office r again petitioned for revocation, this time alleging that Morgan had violated the conditions of his release by using marijuana, not attending hi s drug counseling

, and failing to report a change in address . At a revocation hearing, Morgan admitted s mok ing marijuana, tr ying to bribe a nother employee of the drug

- testing vendor, and diluting his urine samples

. He asked the district court to find
that his positive drug tests evidenced personal use , rather than possession of marijuana;

use is a Grade C violation , while possession not only constitutes a more serious Grade B violation, but also makes revocation mandatory

. S ee 21 U.S.C. § 844(a); U.S.S.G. § 7B1. 3 (a)( 1 ). T he judge a cknowledged that ordinarily she would treat marijuana use a s

a Grade C violation, though not in Morgan’s case because h is other conduct

— trying to
bribe a test taker and dilute his urine

— was “more serious behavior than simply smoking marijuana once in awhil e

. ” We have held that drug possession can fairly be inferred from evidence of use, United States v. Trotter , 270 F.3d 1150, 1151

– 52 (7th Cir. 2001)

, and on that basis the judge found that Morgan had committed a Grade B violation by possessing marijuana. Th e court therefore revoked Morgan’s supervised release and ordered him reimprisoned for 21 months, the bottom of the range recommended by the Sentencing Commission

. S ee U.S.S.G. §§ 7B1.3(a)(1), 7B1.4(a).No. 14

- 2293 Page 3

In her Anders brief, counsel first considers arguing that the district court abused its discretion by revok ing Morgan’s supervised release. We agree with counsel t hat such a challenge would be frivolous because Morgan admitted the alleged violations first to his probation officer and then during the revocat ion hearing

, and h e does not s eek to
retract those admissions. See United States v. Wheaton , 610 F.3d 389, 39 0 (7th Cir. 2010).

Counsel next considers challenging the 2 1

- month term of reimprisonment as unlawful or plainly unreasonable, b ut rightly conclud es that this challenge would be
frivolous . First, the term of reimprisonment is not unlawful. Morgan could have been reimprisoned for up to 3 years because t he crime for which he originally was convicted

was a Class B felony

. See 18 U.S.C. § 3583(e)(3) ; United States v. Flagg , 481 F.3d 946, 949 (7th Cir. 2007); United States v. Turlington , 696 F.3d 425, 426

– 28 (3d Cir. 2012)

. The

21

- month term that Morgan received is within that statutory limit. Second, M organ’s

21 months is not plainly unreasonable. See United States v. Robertson , 648 F.3d 858, 859 (7th Cir. 2011); United States v. Kizeart , 505 F.3d 672, 673 , 675 (7th Cir. 2007). The district court’s finding that Morgan not only used but also possessed marijuana is amply supported by the record, and p osse ssing a controlled substance after a prior drug conviction is punishable by up to two years in prison, see 21 U.S.C. § 844(a), and thus is a Grade B violation, U.S.S.G. § 7B1.1(a); Trotter , 270 F.3d at 1151

– 52. The finding that Morgan ha d committed a Grade B violation mandated revocation of his supervised
release

. S ee U.S.S.G. § 7B1.3(a)(1)

. A nd that violation, combined with Morgan’s category
VI criminal history, resulted in a range of imprisonment upon revocation of 21 to 27 months, see id. § 7B1.4(a). T he court sel ected the low end of that range, and w e would not find that term to be plainly unreasonable.

Accordingly, we G R ANT counsel’s motion to withdraw and D I SMISS the appeal.