United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted December 22, 2008

Decided December 23, 2008

Before

    RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

     ANN CLAIRE WILLIAMS, Circuit Judge

No. 08‐2181

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

ERNEST F. CLARK,

Defendant‐Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 91‐CR‐290

Lynn Adelman,

Judge.

O R D E R

Ernest Clark was convicted in 1992 of armed bank robbery, see 18 U.S.C. § 2113, use

of a firearm while committing a crime of violence, see 18 U.S.C. § 924(c), and being a felon in

possession of a firearm, see 18 U.S.C. § 922(g)(1).  Fourteen years later Clark was released

from custody, but he did not comply with the terms of his supervised release.  After Clark

tested positive for cocaine on four separate occasions and missed various counseling

appointments, his probation officer petitioned the district court to revoke his release.  At his

revocation hearing Clark admitted nearly all of the allegations, including that he had tested

positive for cocaine on at least three occasions in the previous year.  The court found that it

was four, which made revocation mandatory under 18 U.S.C. § 3583(g)(4).  In light of

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐2181 Page 2

Clark’s intractability and the potential danger he posed to the public, the court imposed

another six months’ imprisonment to be followed by a term of twelve months’ supervised

release.

Clark appeals.  But his attorney cannot find a nonfrivolous basis for the appeal and

has asked to withdraw under Anders v. California, 386 U.S. 738 (1967).  We invited Clark’s

comment on the pending motion; he did not respond.  See Cir. R. 51(b).  That leaves us with

only the potential issues raised in counsel’s supporting brief.  See United States v. Schuh, 289

F.3d 968, 973‐74 (7th Cir. 2002).

Counsel first examines whether Clark could challenge the district court’s authority to

impose an additional term of supervised release on top of reimprisonment.  But Johnson v.

United States, 529 U.S. 694, 712‐13 (2000), permits a district court to do just that, even if the

sentence is governed, as Clark’s is, by an earlier version of 18 U.S.C. § 3583, which does not

explicitly provide the authority.  See also United States v. Russell, 340 F.3d 450, 453‐54 (7th

Cir. 2003).  Still, under Johnson, the combined term of reimprisonment and additional

supervised release cannot exceed the original term of supervised release.  See Johnson, 529

U.S. at 712‐13; Russell, 340 F.3d at 454.  That is not a problem here.  Clark’s original term of

supervised release was five years, so the eighteen months of incarceration and supervision

he now faces pass muster.

Counsel briefly examines the grounds for revocation as well but acknowledges that

they are adequate.  There can be no debate here.  Testing positive for illegal controlled

substances is reason for revocation.  See 18 U.S.C. § 3583(g)(4); United States v. Pitre, 504 F.3d

657, 659‐65 (7th Cir. 2007).

Counsel next probes whether Clark could argue that his term of reimprisonment is

unreasonable.  Our review of additional imprisonment imposed on revocation of

supervised release examines whether the term is plainly unreasonable, a standard that we

have described as very narrow.  United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007).  A

district court need only consider the policy statements found in Chapter 7 of the guidelines

and the sentencing factors set forth in 18 U.S.C. § 3553(a) before fashioning an appropriate

term of reimprisonment.  See 18 U.S.C. § 3583(e); United States v. Neal, 512 F.3d 427, 438 (7th

Cir. 2008).  In Clark’s case the court acknowledged that the revocation table proposed an

reimprisonment range of seven to thirteen months given Clark’s Grade C violations and his

criminal history category of V.  See U.S.S.G. § 7B1.4.  The court decided, however, that a

lesser term would preserve public safety and provide “some sort of hope for maybe getting

[him] more on to the right track.”  The court noted as well that it sought to avoid an

excessively punitive sentence.  That is appropriate consideration.

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