# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted October 20, 2021

Decided October 20, 2021

Before

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

DIANE P. WOOD, Circuit Judge

Nos. 20-3219 & 20-3311

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

J AMAR JONES, Defendant-Appellant

. Appeals from the United States District Court for the Southern District of Indiana, Evansville Division.

Nos. 3:17CR00002-001 & 3:13CR00004-001

Richard L. Young, J udge

.

O R D E R

Jamar Jones pleaded guilty to conspiring to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 846, while on supervised release fo r another drug conviction, see id . § 841(a)(1). The district court sentenced Jones to 240 months’ imprisonment for the conspiracy conviction (case number 17 -cr-02) and a consecutive 24-month sentence upon revocation of Jones’s supervised rele ase for the earlier drug conviction (case number 13-cr-04). Jones appeals both judgment s. His appointed counsel asserts that all NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1Nos. 20-3219 & 20-3311 Page 2

arguments in both cases would be frivolous and moves to withdraw. See Anders v. California , 386 U.S. 738, 744 (1967). We agree with counsel and therefore grant both motions to withdraw and dismiss the appeals.

Jones does not have an unqualified constitutional right to counsel when appealing a revocation order, see Gagnon v. Scarpelli , 411 U.S. 778, 789–91 (1983), so the Anders safeguards need not govern our review. Nonetheless our practice is to follow them. See United States v. Brown , 823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief explains the nature of the case and addresses potential issues that an appeal like this would be expected to involve. Because co unsel’s analysis appears thorough, we limit our review to the subjects that she discusses and that Jones raises in his response under Circuit Rule 51(b). See United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014).

Counsel first considers whether Jones co uld challenge the validity of his guilty plea for his conviction in case number 17- cr-02 and appropriately concludes that he could not. The transcript of the colloquy refl ects that the district court substantially complied with Federal Rule of Criminal Procedure 11. See United States v. Blalock

, 321 F.3d 686, 688–89 (7th Cir. 2003). The court de termined that Jones understood the charges against him, the trial and appeal rights that he was waiving, the maximum penalties, and the role of the Sentencing Guidelines. F ED

. R. C RIM

. P. 11(b)(1). The court further ensured that Jones’s plea was support ed by an adequate factual basis and made voluntarily. See id . at 11(b)(2)–(3). Jones, for his p art, argued at the sentencing hearing that the prosecutor ”forced his hand” by th reatening not to withdraw the government’s information under 21 U.S.C. § 851 (proposing to increase Jones’s statutory minimum sentence from 10 to 15 years) if he did not sign the plea agreement. But, as counsel points out, a prosecutor’s offer of leniency in exchange for a guilty plea is not coercive if a defendant—like Jones—is subject to increased punishment based on his prior drug conviction. 21 U.S.C. § 841(b)(1); Bordenkircher v. Hayes , 434 U.S. 357, 364 (1978); United States v. Spilmon , 454 F.3d 657, 658–59 (7th Cir. 2006).

Counsel and Jones both consider whether Jones could challenge the denial of his motion to withdraw his plea on grounds of innocence—that he had not participated in a conspiracy to distribute methamphetamine. Jo nes maintains that all he did was agree to deliver a box of what he believed was m arijuana (but what turned out to be methamphetamine). Counsel rightly concludes, however, that this challenge would be frivolous because Jones’s denial of guilt contradicted his earlier testimony at the change-of-plea hearing and therefore did not meet the standard of a “fair and just” reason to withdraw his plea. United States v. Collins , 796 F.3d 829, 835 (7th Cir. 2015)Nos. 20-3219 & 20-3311 Page 3

(internal citations omitted). In that testimon y, Jones admitted under oath that he “was a leader and supervisor of the conspiracy to distribute and possess with the intent to distribute methamphetamine,” that he obta ined methamphetamine from “sources of supply in Arizona and Georgia” and that he distributed “pound quantities of methamphetamine in the sout hwestern Indiana area to mid-level distributors.” Even though Jones denied knowledge of deliverin g methamphetamine in one instance, these sworn admissions support the district court’ s finding that he was not innocent of a conspiracy to distribute methamphetamine.

Counsel next considers whether Jones could challenge his sentence on the conspiracy conviction but rightly concludes th at his appeal waiver would foreclose any challenge. In his plea agreement, Jones expressly waived his right to appeal “all provisions of the guilty plea and senten ced imposed, including the length and conditions [of] supervised release.” An a ppeal waiver stands or falls with the underlying guilty plea. United States v. Nulf , 978 F.3d 504, 506 (7th Cir. 2020). As discussed above, Jones’s plea was valid, so his appeal waiver was also valid. Counsel also correctly rejects any argument that an ex ception to the waiver could apply. Jones’s 240-month sentence was less than the stat utory maximum of life imprisonment, 21 U.S.C. § 841(b)(1)(A), and the court did not consider any constitutionally impermissible factors at sentencing.

Counsel also considers challenging the dist rict court’s authority to revoke Jones’s supervised release (in case number 13-cr-04), which was set to expire several months before the revocation hearing. But counsel pr operly regards this argument as frivolous because an ongoing term of supervised rele ase is tolled by pretrial detention longer than 30 days that is later credited as time served for a new conviction, and nothing in the record suggests that Jones was not credited for that period of pretrial detention after his March 2017 arrest. See 18 U.S.C. § 3585(b); Mont v. United States , 139 S. Ct. 1826, 1832–33 (2019).

Counsel also asks whether Jones could cha llenge the revocation of his supervised release, and correctly concludes that doing so would be frivolous. The court reasonably found that Jones violated his supervised release condition of not committing “another federal, state, or local crime” based on hi s guilty plea to conspiring to distribute methamphetamine. See 18 U.S.C. § 3583(d), (e)(3); United States v. Flagg , 481 F.3d 946, 948–49 (7th Cir. 2007) (admission of a superv ised release violation satisfied the preponderance-of-the-evidence requirement).Nos. 20-3219 & 20-3311 Page 4

Further, counsel considers whether Jones could challenge the length of his sentence, and rightly concludes that he could not. The court correctly calculated a range of 24 to 30 months’ imprisonment unde r the Guidelines’ Chapter Seven policy statements, based on Jones’s criminal hist ory category (Category IV), and grade of violation (Grade A). U.S.S.G. § 7B1.4. Jones’s 24-month sentence falls within the policystatement range, so we may presume it to be reasonable. United States v. Wehrle

, 985 F.3d 549, 557 (7th Cir. 2021). Nothing in the record rebuts that presumption. The court properly addressed the applicable factors under 18 U.S.C. § 3553(a), alluding to the seriousness of Jones’s drug offenses an d the need to promote respect for the law (“His conduct here in the courtroom today in dicates that he has no remorse and does not understand the seriousness of these offens es”), the need to protect the public from Jones’s potential repeat offenses (“An additi onal 24 months will protect the public from further crimes of the defendant”), and the be neficial effect of vocational training and substance-abuse treatment for Jones (“I do believe the defendant is at risk of committing further crimes unless he learns a skill or a trade or vocation and has continued substance-abuse treatment”).

Finally, counsel correctly concludes th at an argument based on ineffective assistance of counsel would be frivolous. Su ch claims generally should be reserved for collateral review, at which point the defendant may develop a full record. See Massaro v. United States , 538 U.S. 500, 504–05 (2003).

Counsel’s motion to withdraw is GR ANTED and the appeal is DISMISSED.