# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted June 3, 2019

Decided June 3, 2019

Before

J OEL M. FLAUM, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-1251

UNITED STATES OF AMERICA, Plaintiff-Appellee ,

v

.
MARK F. BRUMMITT, Defendant-Appellant

. Appeal from the United States District Court for the Western District of Wisconsin.

No. 04-cr-127-bbc-1

Barbara B. Crabb, J udge

.

O R D E R
In this appeal, Michael Brummitt seek s to challenge the revocation of his supervised release. His attorney has moved to withdraw from the appeal, arguing that it is frivolous. See Anders v. California , 386 U.S. 738 (1967). We agree, grant the motion to withdraw, and dismiss the appeal.
Brummitt was convicted in 2005 of possessing a CD-ROM containing child pornography, see 18 U.S.C. § 2252(a)(4)(B), and was se ntenced to 125 months in prison, followed by a three-year term of supervised re lease. His first term of supervised release began in 2014, but less than two years later, the district court revoked it. He served another 14 months in prison , and then began his second term of release in 2017. NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1251 Page 2

The district court later revoked the second term of release, precipitating this appeal. The probation officer cited several Cl ass C violations of Brummitt’s conditions of release (including possession of photogra phs of his minor victims scantily garbed). Both in a letter to the court and during his hearing, Brummitt stipulated to several violations. These included using an un monitored computer without permission, contacting a minor (his grandson) without pe rmission, failing to report to a scheduled polygraph examination, and deleting file s and search history from his monitored personal computer without permission. In ad dition to these admissions, his probation officer testified that Brummitt also had remo ved the required monitoring software from his personal computer and refused to part icipate in psychosexual counseling. The district court accepted Brummitt’s admission s as well as the officer’s testimony (the court found Brummitt’s denials of this test imony not credible). Based on the relevant policy statement of the Sentencing Guidelin es for Brummitt’s Class C violations and a criminal history score of VI, the recommend ed range of incarceration for Brummitt’s violations was 8 to 14 months. U.S.S.G. 7B1.4. After reviewing the sentencing factors in 18 U.S.C. § 3553(a), the judge sentenced Brummitt to a new term of 14 months’ incarceration followed by an addition al 22 months’ supervised release.
In moving to withdraw, counsel briefs us on the nature of the case and addresses the potential issues that this kind of appeal might involve. Because there is not an unqualified constitutional right to counse l on an appeal of a revocation order, see Gagnon v. Scarpelli , 411 U.S. 778, 790–91 (1973), the safeguards of Anders v. California, 386 U.S. 738 (1967) need not govern our review. No netheless, it is our practice to follow them. United States v. Brown , 823 F.3d 392, 394 (7th Cir. 2016). Brummitt opposes counsel’s motion. See Cir. R. 51(b). Because counsel’s analysis appears thorough, we limit our review to the subjects that coun sel discusses and the issues that Brummitt believes have merit. United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014).
First, counsel considers whether Brummitt could reasonably argue that the revocation was either an abuse of discretio n or based on a factual error, and correctly concludes he could not. As counsel explains , the district court may revoke a term of supervised release if the court finds “by a preponderance of the evidence” that the defendant violated a condition of release. 18 U.S.C. § 3583(e)(3 ). Because Brummitt stipulated to some violations and the probat ion officer credibly testified to others, an argument that the revocation was unsupport ed by a preponderance of the evidence would fail. Brummitt responds that we should ignore his stipulations because, he says, counsel presented them without Brummitt agreeing to them. But as counsel points out, at the revocation hearing Brummitt himself pe rsonally admitted to these violations. HisNo. 19-1251 Page 3

personal admissions, coupled with the pr obation officer’s testimony, more than satisfied the preponderance-of-the-evidence st andard for establishing the factual basis for revocation.
Counsel next considers and rightly re jects the argument that the sentence imposed on revocation was impermissible. We would overturn a sentence only if it were “plainly unreasonable,” United States v. Salinas , 365 F.3d 582, 588 (7th Cir. 2004), which this sentence is not. As counsel expl ains, the district court consulted the correct policy statement of the Guidelines for Class C violations, selected a sentence within the recommended range, and discussed the range in relation to the § 3553(a) factors. See Brown , 823 F.3d at 394. The sentence—14 months’ imprisonment and 22 months’ supervised release—was also within the stat utory limits for class C violations such as these. See 18 U.S.C. §§ 3583(e)(3), (h); United States v. Perry , 743 F.3d 238, 242 (7th Cir. 2014). Brummitt’s only response is that the district judge supposedly had said during his first revocation hearing that she woul d not assign any more supervision if the second term of supervision failed. But ev en if this were true—and we see no such statement in the transcript of that hearing —Brummitt does not explain (nor do we see) how the judge’s discretionary change of mi nd renders the new sentence unreasonable.
Finally, counsel rightly concludes that Brummitt could not raise a reasonable argument of ineffective assistance of counse l. Brummitt repeats his belief that counsel was ineffective by offering stipulations that Brummitt did not agree to. A defendant in a revocation proceeding in distri ct court generally has no righ t to counsel under the Sixth Amendment and a limited right to counsel under the Fifth Amendment. United States v. Jones , 861 F.3d 687, 690 (7th Cir. 2017); Brown , 823 F.3d at 394. Even if we were to assume that the right applies in this case , the record does not support a reasonable argument that counsel was deficient. As we explained earlier, the revocation-hearing transcript refutes Brummitt’s assertion on appe al that he did not agree to the proffered stipulations.
We thus GRANT the petition to withdraw and DISMISS the appeal.