# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted November 1, 2021

Decided November 5 , 2021

Before

DIANE S. SYKES, Chief Judge

FRANK H. EASTERBROOK , Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 21-1421

UNITED STATES OF AMERICA , Plaintiff -Appell ee ,

v

.

DAMMARO D. PERKINS , Defendant

- Appell ant

. Appeal from the United States District Court for the Southern District of Illinois

.

No. 3:05- CR -30137- SMY -1

Staci M. Yandle, Judge

.

O R D E R

The district court revoked Dammaro Perkins’s supervised release based on a litany of violations, including distributing crack cocaine on six occasions , driving under the influence twice , and leaving the scene of a n accident

. Perkins appeals his five -year revocation sentence, but his appointed counsel moves to withdraw on the ground that th e appeal is frivolous. See Anders v. California , 386 U.S. 738 (1967).

T he Constitution does not guarantee counsel in an appeal of a supervised

- release revocation when, as in this case , the defendant ne i ther contests the violations nor raises NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 21-1421 Page 2

complex or substantial argument s in mitigation

. See Gagnon v. Scarpelli , 411 U.S. 778, 790–91 (1973); United States v. Eskridge , 445 F.3d 930, 932–33 (7th Cir. 2006). Therefore , Anders need not govern our review , but we n evertheless apply its safeguards to ensure that all potential issues receive consideration. United States v. Brown , 823 F.3d 392, 394 (7th Cir. 2016). Counsel submitted a brief that appears thorough, address ing the potential issues we would expect to see i n an appeal of this kind, and Perkins responded under Circuit Rule 51(b) with the issues he would like to raise . W e limit our review to the potential issues that counsel and Perkins discuss

. See United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014).

Perkins was convicted in 2007 of one count each of possessing more than five grams of crack cocaine with intent to distribute (enhanced by three prior felony drug convictions) , 21 U.S.C. § 841(b)(1)(B) (2007) ; possessi ng a firearm in relation to drug trafficking, 18 U.S.C. § 924(c)(1)(A); possessing marijuana with intent to distribute, 21 U.S.C. § 841(b)(1)(D) ; and possessing a firearm as a felon, 18 U.S.C. § 922(g). He was sentenced to 210 months in prison. In April 2019 the judge reduced his s entence to 106 months under § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222, which made retroactive the modified penalties for crack

- cocaine offenses under the Fair Sentencing Act , Pub. L. No . 111-220, 124 Stat. 2372. Because Perkins had already served well over 106 months, he was promptly released and began serving a six

- year term of supervised release.

Less than two years later, Perkins’s probation officer petitioned for a warrant for his a rrest and the revocation of his supervised release based on several violations of the conditions. The most se rious allegations were th at Perkins committed crime s, including driving under the influence , leaving the scene of an accident , and possess ion of methamphetamine

. Months later, the probation officer filed an amended petition add ing allegations that on six occasions Perkins distributed crack cocaine. At the final revocation hearing ( held by videoco nference ), Perkins admitted that he committed, or that the government could prove by a preponderance of the evidence that he committed, every violation alleged in the amended petition. As was statutorily mandated given certain violations, t he judge revoked his supervised release and sentenced him to a total of five years of reimprisonment and eight more years of supervised release. The prison sentence consist s of wholly concurrent sentences of 60 months for two counts and 24 months for the other two. The ne w supervised

- release
sentence consists of concurrent terms of eight , four , and three years on three of the counts of conviction (with none for the fourth count ).No. 21-1421 Page 3

The judge primarily justified the statutory

- maximum prison sentence by observing that Perkins left prison and “walked immediately into ... an illegal substance and alcohol abuse situation” while resisting any treatment, created danger for others by driving under the influence, and ultimately “returned to [his] illegal activity and [his] life of crime of dealing crack. ” S he also commented on the need to protect the public and deter Perkins from reoffending as reasons for the new term of supervised release

.
Counsel first considers whether there is a nonfrivolous argument that the judge erred by conducting a final revocation hearing when Perkins had not yet receive d a separate preliminary hearing on the amended petition

. See F ED

. R. C RIM

. P. 32.1(b). That issue was discussed a t the revocation hearing , and Perkins and his counsel affirmatively agreed to proceed

. The only purpose f or arguing that Perkins was entitled to a preliminary hearing would be to challenge the validity of the revocation. And counsel informs us elsewhere that Perkins does not wish to challenge the revocation or withdraw the admissions on which it is based. Therefore, neither counsel nor this court need consider anything but potential challenges to Perkins’s sentence. See United States v. Wheeler , 814 F.3d 856, 857 (7th Cir. 2016).
With respect to the se ntence, counsel first contemplates whether Perkins could appeal based on any error in calculating the applicable re imprisonment range under the policy statements in Chapter 7 of the Sentencing Guidelines

. The judge calculated a policy

- statement range of 51 to 63 months in p rison based on Perkins’s criminal

- history category of VI and the finding that he committed Grade A violation s of his conditions of supervision while serving a sentence for a Class A felony. See U.S.S.G. § 7B1.4. The judge appropriately used the criminal

- history category assigned at the original sentencing. Id. at cmt. n.1. And distribution of crack cocaine and possession of methamphetamine are Grade A violation s: controlled

- substance offense s punishable by at least one year in prison

. See id. § 7B1.1(a)(1); 21 U.S.C. § 841(a)(1).

Counsel also considers whether Perkins could argue that the judge erred by treating his original crack

- cocaine conviction as a Class A felony for purposes of determining the statutory maximum revocation sentence, 18 U.S.C. § 3583(e)(3), despite the reduction of his sentence under the First Step Act

. Through the retroactive application of the Fair Sentencing Act , Perkins’s 2007 crack

- cocaine offe nse ( which would now carry a maximum 30

- year sentence given Perkins’s prior convictions ) became a Class B felony

. See 21 U.S.C. § 841(b)(1)(C) ; United States v. Corner , 967 F.3d 662, 665–66 (7th Cir. 2020) (directing the district court to use the First Step Act’s modified statutory penalties when calculating a revocation sentence). T he maximumNo. 21-1421 Page 4

revocation sentence for a Class B felony is three years, § 3583(e)(3) , which is less than what Perkins received on this count

.

But w e agree with counsel that any appeal on that ground would be frivolous because Perkins could not establish all of the requirement s for reversal under plain

error review

. Th e plain

- error review standard would apply because Perkins never objected to the summary of the maximum penalties in the revocation petition and agreed with the judge’s recitation of those penalties at the hearing. See United States v. Williams , 949 F.3d 1056, 1066 (7th Cir. 2020). Among other things, he would need to show that the error affected his substantial rights, i.e. , that the error “affected the outcome of the district

- court proceedings.” United States v. Olano , 507 U.S. 725, 734 (1993). No such showing is possible here because Perkins received a concurrent revocation s entence of five years of reimprisonment on his conviction for possessing a firearm in furtherance of drug trafficking , § 924(c)(1)(A) , a Class A fe lon y that carries a maximum term of life and was unaffected by the Fair Sentencing Act. Because Perkins will serve five years of re imprisonment on the § 924 (c) count regardless of whether the

same term is permissible for the drug

- trafficking count, his substantial rights were unaffected

. See United States v. Allgire, 946 F.3d 365, 368 (7th Cir. 2019). As counsel rightly observes, Allgire forecloses any argument to the contrary

. Next, counsel considers whether Perkins could plausibly challenge his new terms of supervised release and correctly concludes that he could not

. The maximum term of supervised release upon revocation is “the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release .” 18 U.S.C. § 3583 (h) ; U.S.S.G. § 7B1.3(g)(2). T he judge imposed new supervised

- release
terms for the convictions for trafficking crack cocaine , possessing a firearm in furtherance of drug trafficking, and possessing marijuana with the intent to distribute. C ounsel correctly notes that t he crack -cocaine and marijuana counts (both enhanced under 21 U.S.C. § 851) each carried life as the maximum term of supervised release. See §§ 841(b)(1)( D), 851. The same ma ximum applied after revocation, so it would be frivolous to argue that the terms imposed on th ose counts were unlawful

. As to the § 924(c) count , counsel overlooks that t he new term of supervised release exceeds the statutory maximum

. On this count , a violation of § 924(c)(1)(A), the j udge imposed a three -year postrevocation term of supervision to be served after the five years of reimprisonment. But the § 924(c) offense, a Class A felony , originally carried a maximum of five years of supervision

. See 18 U.S.C. § 3583(b)(1). Therefore,No. 21-1421 Page 5

upon revocation the maximum term of supervision i s five years minus the five years of reimprisonment (counsel mistakenly says two years of reimprisonment )—that is, zero. See § 3583 (h)

. C ounsel’s oversight is inconsequential, however, because Perkins did not raise the point in the district court and could not show plain error

. Again, under Allgire Perkins could not demonstrate that the error affected his substantial rights because the
concurrent

— and legal

— eight -year and four -year term s of supervised release remain

. See Allgire, 946 F.3d at 368.
Finally, counsel considers whether Perkins could argue that his sentence was inadequately explained or substantively unreasonable but correctly concludes that such an argument would be frivolous. T he terms of reimprisonment and supervised release , which were within the properly calculated policy

- statement range s , are presumptively reasonable. See United States v. Jones , 774 F.3d 399, 404 (7th Cir. 2014). In explaining her decision to impose the statutory maximum term of reimprisonment , the judge adequately addressed the sentencing factors of 18 U.S.C. § 3553(a). Focusing on the seriousness of Perkins’s many violations , s he emphasized that although the Probation Office tried to assist him with residential drug treatment , Perkins “took it to another level” when he returned to dealing crack cocaine soon after his release from prison. He also drove while impaired on multiple occasions, endangering the public. Similarly, although neither party asked her to do so , the judge explained her decision to impose further supervised release . She said that continued monitoring was necessary to protect the public and specifically deter Perkins

. It would be frivolous to argue that these explanations were not “sufficient to allow a court of appeals to assess the reasonableness of the sentence imposed.” Jones , 774 F.3d at 405.
Finally, Perkins asserts in his Rule 51 (b) response that he wishes to challenge the calculation of his good

- time credit

. But he could not do so on direct appeal because the Bureau of Prisons, not the sentencing court, administers good

- conduct time , 18 U.S.C. § 3624(b); White v. Sc ibana , 390 F.3d 997, 1001 (7th Cir. 2004), and any mis calculation by the Bureau would not warrant vacating Perkins’s sentence.
We GRANT counsel’s motion to withdraw and DISMISS this appeal.