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-Appellee,

v.

ZAN MORGAN,

Defendant-Appellant.

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 the 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 CIR. R. 51(b). The analysis in the brief appears to be thorough, so we 

limit our review to the subjects that counsel discusses. 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NONPRECEDENTIAL DISPOSITION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. 32.1
No. 14-2293 Page 2

Morgan was convicted in 2003 of distributing crack cocaine, 21 U.S.C. § 841(a)(1), 

and was sentenced 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, see 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 later, 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 admonished Morgan to comply with 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 revocation. The state dismissed its charges, so the 

district court decided against revocation. The court warned Morgan, however, to 

dissociate from persons engaged in criminal activity. Not long after this Morgan failed 

another drug test and admitted smoking marijuana. His probation officer recommended 

that he attend drug counseling and continue to be tested.

In May 2014 the probation officer again petitioned for revocation, this time

alleging that Morgan had violated the conditions of his release by using marijuana, not 

attending his drug counseling, and failing to report a change in address. At a revocation 

hearing, Morgan admitted smoking marijuana, trying to bribe another 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. See 21 U.S.C. § 844(a); U.S.S.G. 

§ 7B1.3(a)(1). The judge acknowledged that ordinarily she would treat marijuana use as 

a Grade C violation, though not in Morgan’s case because his other conduct—trying to 

bribe a test taker and dilute his urine—was “more serious behavior than simply smoking 

marijuana once in awhile.” 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. The court therefore revoked Morgan’s supervised release and 

ordered him reimprisoned for 21 months, the bottom of the range recommended by the 

Sentencing Commission. See 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 revoking Morgan’s supervised release. We agree with counsel that such

a challenge would be frivolous because Morgan admitted the alleged violations first to 

his probation officer and then during the revocation hearing, and he does not seek to 

retract those admissions. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010).

Counsel next considers challenging the 21-month term of reimprisonment as 

unlawful or plainly unreasonable, but rightly concludes 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 the 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, Morgan’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 possessing 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 had committed a Grade B violation mandated revocation of his supervised 

release. See U.S.S.G. § 7B1.3(a)(1). And 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). The court selected the low end of that range, and we would 

not find that term to be plainly unreasonable.

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