United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 12, 2010

Decided May 13, 2010

Before

                     KENNETH F. RIPPLE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09‐3782

UNITED STATES OF AMERICA,

           Plaintiff‐Appellee,

v.

KENTARO L. HAWKINS,

Defendant‐Appellant.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 4:97 CR 40060‐002‐JPG

J. Phil Gilbert,

Judge.

O R D E R

Kentaro Hawkins was sentenced to a total of 151 months’ imprisonment and 3 years’

supervised release after he pleaded guilty to two counts of possessing and distributing

crack cocaine.  See 21 U.S.C. § 841(a)(1).  The prison term was later reduced after Hawkins’s

base offense level was lowered by a retroactive amendment to the guidelines, see 18 U.S.C. §

3582(c)(2); U.S.S.G. § 1B1.11, and in March 2008 he was released from custody.  In June 2009,

however, Hawkins violated the conditions of his supervised release by, among other things,

possessing and delivering marijuana on school grounds, which he admitted at a revocation

hearing.  The district court revoked Hawkins’s supervised release and ordered him to serve

another 24 months’ imprisonment.  Hawkins appeals, but his appointed counsel has

concluded that the appeal is frivolous and moves to withdraw.  See Anders v. California, 386

U.S. 738, 744 (1967).  We invited Hawkins to respond to counsel’s motion, but he did not.

See CIR. R. 51(b).  We limit our review to the potential issues identified in counsel’s facially

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 09‐3782 Page 2

adequate brief.  See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).

Counsel has identified several grounds for appeal, but all are frivolous.  First,

counsel questions whether Hawkins could argue that the district court abused its discretion

by revoking his supervised release.  But revocation was mandatory after Hawkins admitted

to possessing marijuana, a controlled substance.  See 18 U.S.C. § 3583(g)(1).  

Counsel also briefly considers whether there were any procedural irregularities in

the revocation proceedings but correctly concludes that the district court complied with

Federal Rule of Criminal Procedure 32.1.  Hawkins was represented by counsel, received

written notice of the alleged violations, and was allowed to make a statement in mitigation.

See FED. R. CRIM. P. 32.1(b).  We agree that it would be frivolous for Hawkins to claim any

procedural error.

Next, counsel wonders whether Hawkins could challenge the length of the

reimprisonment.  We will uphold a term of reimprisonment imposed on revocation of

supervised release unless it is “plainly unreasonable.”  United States v. Kizeart, 505 F.3d 672,

674‐75 (7th Cir. 2007).  In selecting an appropriate prison term to follow revocation, district

courts must consider the policy statements in the guidelines, see U.S.S.G. ch. 7, pt. B, and the

sentencing factors set out in 18 U.S.C. § 3553(a).  United States v. Neal, 512 F.3d 427, 438 (7th

Cir. 2008); United States v. Pitre, 504 F.3d 657, 664 (7th Cir. 2007).  Here, the court could not

imprison Hawkins for more than two years.  See 18 U.S.C. § 3583(e)(3).  Hawkins had

committed a Grade A violation, see U.S.S.G. § 7B1.1(a)(3), and the district court correctly

calculated a guidelines reimprisonment range of 18 to 24 months.  (The district court

announced the correct range but misspoke and said that Hawkins’s criminal history

category was II instead of III, which would have yielded a guidelines range of 15 to 21

months. See U.S.S.G. § 7B1.4.  Counsel, who represented Hawkins at the revocation hearing,

repeats the court’s misstatement in her brief and, inexplicably, describes the range

calculated by the court both as 12 to 18 months and 18 to 24 months.)  We agree that it

would be frivolous to challenge this term as plainly unreasonable.  The term, which the

district court deemed necessary in light of the nature of Hawkins’s offense, is within the

range of 18 to 24 months recommended by the policy statements in the guidelines,

see U.S.S.G. § 7B1.4, and is within the statutory maximum, see 18 U.S.C. § 3583(e)(3).

Last, counsel considers whether Hawkins could argue that he received ineffective

assistance of counsel during the revocation proceedings. Counsel correctly acknowledges,

however, that a claim of ineffective assistance generally should be presented in a collateral

action under 28 U.S.C. § 2255, especially where, as here, Hawkins’s appellate counsel also

represented him at his revocation  hearing.  See Massaro v. United States, 538 U.S. 500, 504‐05
No. 09‐3782 Page 3

(2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).  Moreover, during the

revocation proceedings, Hawkins conceded that he violated the terms of his supervised

release and did not offer any justification for doing so or any ground in mitigation.  

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