United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2011

Decided May 7, 2012

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD A. POSNER, Circuit Judge

   KENNETH F. RIPPLE, Circuit Judge

   

No. 11‐1570

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

WILLIAM C. BROWN

Defendant‐Appellant.                 

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 1:82‐cr‐00384‐1

Marvin E. Aspen,

     Judge.

O R D E R

William Brown pocketed federal funds received to pay ghost workers he created forthe

youth‐employment programs he supervised.  In 1983, he was found guilty on multiple counts

of embezzlement and making false claims, 18 U.S.C. §§ 665, 1001, and was sentenced to a total

of 5 years in prison followed by 5 more years of probation.  See United States v. Brown, 742 F.2d

363 (7th Cir. 1984). In 1990, after his release from federal prison, Brown was arrested by state

authorities and charged with sexually assaulting two boys.  That arrest prompted Brown’s

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11‐1570 Page 2

probation officer to seek revocation and obtain a bench warrant, which was lodged as a

detainer at the jail where Brown was being held.  Meanwhile, Brown also was charged by state

authorities with soliciting a murder, a crime for which he was convicted and sentenced to

30 years’ imprisonment.  While serving thatterm, Brown pleaded guilty to the pending charges

of sexual assault and was sentenced to 8 more years to run consecutively.  The federal bench

warrant remained in place as a detainer throughout Brown’s state incarceration, despite his

efforts to secure a revocation hearing or else have the warrant quashed.

Brown’s state sentences expired in September 2010.  At that point, the bench warrant

was executed, and Brown was transferred to federal custody.  After a hearing in February 2011,

the district courtrevoked Brown’s probation and resentenced him to time served plus another

18 months of probation.

Brown filed a notice of appeal, but his appointed lawyer moves to withdraw under

Anders v. California, 386 U.S. 738, 744 (1967).  Brown opposes counsel’s motion. See CIR.R.51(b).

We review only the potential issues identified in counsel’s facially adequate brief and in

Brown’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).  We grant

counsel’s motion to withdraw and dismiss the appeal.

In his Anders submission, counsel first considers whether Brown could challenge the

district court’s finding that he violated a condition of his probation.  Counselrightly deems this

potential claim frivolous because Brown admitted the violation and does not want the

revocation overturned. Cf. United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010) (defendant

who does not challenge the revocation of supervised release may not challenge the admissions

that undergird that revocation).  Moreover, the district court was entitled to rely on Brown’s

state conviction as proof of his probation violation. See United States v. Huusko, 275 F.3d 600,

602–03 (7th Cir. 2001); United States v. Fleming, 9 F.3d 1253, 1254 (7th Cir. 1993).

Counsel also recognizes that any challenge toBrown’s new sentence wouldbe frivolous.

Counsel analyzes thepossibility of a claim arisingunderthe SentencingReform Act of 1984 and

18 U.S.C. § 3553(a), but that discussion is misguided.  The Sentencing Guidelines and § 3553(a)

are irrelevant because Brown committed his underlying offense before either the Guidelines

or § 3553 took effect. See Knight v. United States, 73 F.3d 117, 120 n.7 (7th Cir. 1995); United States

v. Abdul‐Hamid, 966 F.2d 1228, 1230–31 (7th Cir. 1992).  A challenge to his sentence instead

would be frivolous because the district court did not stray beyond the statutory limits or rely

on improper considerations or unreliable information. See Abdul‐Hamid, 966 F.2d at 1231;

United States v. Veteto, 945 F.2d 163, 166 (7th Cir. 1991); United States v. Barnett, 961 F.2d 1327,

1328 (7th Cir. 1992).

In sentencing Brown to time served (about 5‐1/2 months) and 18 additional months of
No. 11‐1570 Page 3

probation, the district court imposed a “split sentence” of the type explicitly authorized by

statute. See United States v. Thomas, 934 F.2d 840, 843 & n.6 (7th Cir. 1991); Davis v. United States,

790 F.2d 716, 717 (8th Cir. 1986).  Section 3653 of Title 18, which applies to Brown’s probation

revocation, see Knight, 73 F.3d at 121, provides that a district court upon finding that a

probationer has violated the terms of his probation “may revoke the probation and require

[the probationer] to serve the sentence imposed, or any lesser sentence, and, if imposition

of sentence was suspended, may impose any sentence which might originally have been

imposed.”  And a defendant like Brown who was on probation for a federal crime carrying a

maximum penalty exceeding 6 months may, upon revocation, be given a split sentence of up

to 6 moths in prison plus a term of probation “for such period and upon such terms and

conditions as the court deems best.” 18 U.S.C. § 3651.

Brown suggests in his Rule 51(b) response that he suffered cruel and unusual

punishment and was denied equal protection and due process when the district court did not

accede to his demands to conduct the revocation hearing before his state sentences expired.

Those several demands were based upon the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–74,

and the Interstate Agreement on Detainers, 18 U.S.C. app. § 2.  The district court did not

respond to Brown’s submissions (on the record before us, we cannot tell why), but no liberty

interest was implicated until the bench warrant was executed in 2010, and thus it would be

frivolous for Brown to argue that the court violated his constitutionalrights by not conducting

the revocation hearing expeditiously. See Moody v. Daggett, 429 U.S. 78, 87 (1976); United States

v. Williams, 787 F.2d 1182, 1184 (7th Cir. 1986); United States v. Romero, 511 F.3d 1281, 1284 (10th

Cir. 2008); United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993).  Although Brown notes that

the warrant lodged as a detainer disqualified him from certain prison jobs and programs

during his state incarceration, such deprivations do not implicate a constitutionally protected

interest. See Moody, 429 U.S. at 87–89; Williams, 787 F.2d at 1184 n.3; Lekas v. Briley, 405 F.3d 602,

610, 613 (7th Cir. 2005); Hoskins v. Lenear, 395 F.3d 372, 374–75 (7th Cir. 2005).  And neither the

SpeedyTrialAct northe InterstateAgreement onDetainers is applicable to probation‐violation

detainers.  Apetition to revokeprobation isnot an“indictment,” “information,” or “complaint”

and does not lead to a “prosecution” or “trial,” see Carchman v. Nash, 473 U.S. 716, 724–26

(1985), leaving Brown outside the plain language of either statute, see 18 U.S.C. § 3161(a)–(c)

(establishing time limits forfiling indictment orinformation and commencing trial); Carchman,

473 U.S. at 733–34 (concluding that plain language of Interstate Agreement on Detainers

precludes application to probation‐violation detainers); Thomas, 934 F.2d at 846 (observing that

“[p]robation revocation hearings are not criminal prosecutions”).

Finally, Brown notes that he gave copies of his motions to his lawyer and claims that his

counsel was ineffective in disregarding these motions.  But while federal probationers have a

statutory right to counsel in revocation proceedings, 18 U.S.C. § 3006A(a)(1)(C); FED. R. CRIM.

P. 32.1; United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006), this right is not grounded
No. 11‐1570 Page 4

in the Constitution and cannot support a claim of ineffective assistance unless a denial of

counsel wouldhavedeprivedtheprobationer ofdueprocess—aswhenthedefendant colorably

denies the alleged violations or makes a substantial argument in mitigation. See Gagnon v.

Scarpelli, 411 U.S. 778, 790 (1973); Eskridge, 445 F.3d at 932–33; United States v. Yancey, 827 F.2d

83, 89–90 (7th Cir. 1987); United States v. Stocks, 104 F.3d 308, 311 (9th Cir. 1997). That was not

the situation here, since even Brown concedes that his commission of new crimes while on

probation made revocation a foregone conclusion, and a contention that he might have been

able to fashion a mitigating justification for soliciting a murder or sexually assaulting children

would be frivolous.

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.