United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 8, 2021 

Decided November 9, 2021 

Before

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 20-3356 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v. 

THEODORE THURMAN, 

Defendant-Appellant.

Appeal from the United States District 

Court for the Western District of 

Wisconsin. 

No. 20-cr-50-wmc

William M. Conley, 

Judge. 

O R D E R

Theodore Thurman pleaded guilty to one count of escape from custody after he 

absconded from a halfway house where he was serving a federal sentence. See 18 U.S.C. 

§§ 751(a), 4082(a). The district court sentenced him to a prison term of 24 months and no 

supervised release. Thurman appeals, but his appointed counsel asserts that the appeal 

is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). 

Counsel’s brief explains the nature of the case and addresses potential issues that an 

appeal of this kind would be expected to involve. Because her analysis appears 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 20-3356 Page 2 

thorough, and Thurman has not responded, see CIR. R. 51(b), we limit our review to the 

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

Thurman was sentenced in the Northern District of Illinois to 33 months’ 

imprisonment and two years’ supervised release for unlawfully possessing a firearm 

and distributing marijuana. When he was serving part of that sentence at a halfway 

house in Janesville, Wisconsin, he left without permission one night and did not turn up 

for about four months. He would later explain that his infant daughter’s mother, who 

lived in Illinois with their daughter, had told him that she would kill herself. Fearing for 

his daughter’s safety, Thurman fled to Illinois to place her in the care of his mother. But 

he then traveled from Illinois to Arizona, where he later caught the attention of law 

enforcement for possessing a firearm while a passenger in a stolen car containing drugs 

and stolen identification and credit cards. The driver told local police that Thurman 

acted as protection while she sold drugs and that she gave Thurman the weapon. The 

authorities released Thurman without filing charges, and Thurman returned to Illinois, 

where he was later arrested and detained until a grand jury in the Western District of 

Wisconsin indicted him.

At a hearing held by videoconference, Thurman pleaded guilty to a single-count 

indictment charging him with escape from federal custody under 18 U.S.C. §§ 751(a) 

and 4082(a). The district court proceeded immediately to sentencing. Thurman’s 

presentence investigation report set a range of 18 to 24 months’ imprisonment under the 

Sentencing Guidelines, based on a criminal history category of IV and a total offense 

level of 11. Thurman did not object to those calculations. After hearing argument, the 

court sentenced Thurman to 24 months in prison without additional supervised release, 

explaining that the sentence was necessary to hold him accountable, provide him the 

opportunity to participate in rehabilitative programs, and protect the community. 

Counsel informs us that she consulted with Thurman and confirms that he does 

not wish to withdraw his guilty plea, so counsel properly omits discussion of any 

arguments related to the plea’s validity. See United States v. Konczak, 683 F.3d 348, 349 

(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). 

With respect to the sentence, counsel first considers whether there might be a 

nonfrivolous challenge that the hearing via videoconference, as authorized by the 

CARES Act, Pub. L. No. 116-136, § 15002(b)(2)(A), 134 Stat. 281, 528–29, violated Rule 43 

of the Federal Rules of Criminal Procedure. But she explains that Thurman does not 

wish to raise the issue on appeal because he does not want to be sentenced in person: it

would jeopardize his placement in prison programs, which could delay his release. 
No. 20-3356 Page 3 

Lawyers need not raise issues on appeal that would not be in their client’s interest. 

United States v. Caviedes-Zuniga, 948 F.3d 854, 855 (7th Cir. 2020). 

Counsel next considers whether Thurman could challenge the district court’s 

decision not to apply a downward adjustment to his offense level under the Sentencing 

Guidelines. Counsel believes that Thurman waived the issue by stating that he had no 

objections to the presentence report. Even if it were only forfeited, however, any 

challenge to the offense level would be frivolous under plain-error review. Under 

U.S.S.G. § 2P1.1(b)(2), the offense level can be decreased if the defendant returned 

voluntarily within 96 hours of escape, which Thurman did not do. Second, if the 

escaped-from facility is a halfway house, an offense-level decrease can be applied, 

provided the defendant did not commit a felony while out. Id. § 2P1.1(b)(3). Though 

Thurman was never charged, the court found it more likely than not that he committed 

a felony during his escape. See United States v. Holton, 873 F.3d 589, 591–92 (7th Cir. 

2017) (Judges may “consider at sentencing criminal conduct ... even if the defendant 

was not convicted ... ‘so long as that conduct has been proved by a preponderance of 

the evidence.’” (quoting United States v. Watts, 519 U.S. 148, 157 (1997))). The PSR 

detailed Thurman’s conduct while in Arizona, which included aiding in the distribution 

of marijuana and possessing a firearm. 

Finally, counsel rightly concludes that challenging the substantive 

reasonableness of Thurman’s sentence would be pointless. The within-guidelines prison 

term of 24 months is presumptively reasonable. See United States v. Clay, 943 F.3d 805, 

809 (7th Cir. 2019). The presumption would hold here because the district court 

explained why the sentence was warranted under the sentencing factors in 18 U.S.C. 

§ 3553(a). See United States v. Lockwood, 840 F.3d 896, 903 (7th Cir. 2016). It noted that 

Thurman offered some compelling mitigation arguments: he had a supportive family, 

had struggled with substance abuse since his father passed away, and had originally 

left the halfway house because he feared for his daughter’s safety. But the court found 

that Thurman had not seriously confronted his substance abuse. Further, ensuring his

daughter’s welfare took a few days, but Thurman remained on the run for almost four 

months. And during that time, he exhibited the same criminal behavior that landed him 

in prison in the first place, demonstrating that he remained a risk to the community.

Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.