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-Appellee, 

v. 

DAMMARO D. PERKINS, 

Defendant-Appellant.

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 an accident. Perkins appeals his five-year 

revocation sentence, but his appointed counsel moves to withdraw on the ground that 

the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). 

The Constitution does not guarantee counsel in an appeal of a supervised-release 

revocation when, as in this case, the defendant neither contests the violations nor raises 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 21-1421 Page 2 

complex or substantial arguments 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 nevertheless 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, addressing the 

potential issues we would expect to see in an appeal of this kind, and Perkins

responded under Circuit Rule 51(b) with the issues he would like to raise. We 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); possessing 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 sentence 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 arrest and the revocation of his supervised release based on several violations of the 

conditions. The most serious allegations were that Perkins committed crimes, including 

driving under the influence, leaving the scene of an accident, and possession of 

methamphetamine. Months later, the probation officer filed an amended petition 

adding allegations that on six occasions Perkins distributed crack cocaine. At the final 

revocation hearing (held by videoconference), 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, the 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 consists of wholly concurrent sentences of 

60 months for two counts and 24 months for the other two. The new 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.” She 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 received a 

separate preliminary hearing on the amended petition. See FED. R. CRIM. P. 32.1(b). That 

issue was discussed at the revocation hearing, and Perkins and his counsel affirmatively 

agreed to proceed. The only purpose for 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 sentence, counsel first contemplates whether Perkins could 

appeal based on any error in calculating the applicable reimprisonment 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 prison based on Perkins’s criminal-history 

category of VI and the finding that he committed Grade A violations 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 violations: controlled-substance offenses 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 offense (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). The maximum 
No. 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 we agree with counsel that any appeal on that ground would be frivolous

because Perkins could not establish all of the requirements for reversal under plainerror review. The 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 sentence of five years of reimprisonment on his conviction for possessing a 

firearm in furtherance of drug trafficking, § 924(c)(1)(A), a Class A felony that carries a 

maximum term of life and was unaffected by the Fair Sentencing Act. Because Perkins

will serve five years of reimprisonment 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). The 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. 

Counsel correctly notes that the 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 maximum applied after revocation, so it would be 

frivolous to argue that the terms imposed on those counts were unlawful. 

As to the § 924(c) count, counsel overlooks that the new term of supervised

release exceeds the statutory maximum. On this count, a violation of § 924(c)(1)(A), the 

judge 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 is five years minus the five years of 

reimprisonment (counsel mistakenly says two years of reimprisonment)—that is, zero. 

See § 3583(h). Counsel’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 terms 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. The terms of reimprisonment and supervised release, 

which were within the properly calculated policy-statement ranges, 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, she 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. Scibana, 390 F.3d 997, 1001 (7th Cir. 2004), and any miscalculation by 

the Bureau would not warrant vacating Perkins’s sentence. 

We GRANT counsel’s motion to withdraw and DISMISS this appeal.