United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted June 3, 2019 

Decided June 3, 2019 

Before 

JOEL 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, 

Judge. 

O R D E R 

 In this appeal, Michael Brummitt seeks 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 sentenced to 125 months in prison, 

followed by a three-year term of supervised release. 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NONPRECEDENTIAL DISPOSITION 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 only in accordance with Fed. R. App. P. 32.1 
No. 19-1251 Page 2 

 The district court later revoked the second term of release, precipitating this 

appeal. The probation officer cited several Class C violations of Brummitt’s conditions 

of release (including possession of photographs 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 unmonitored computer without permission, 

contacting a minor (his grandson) without permission, failing to report to a scheduled 

polygraph examination, and deleting files and search history from his monitored 

personal computer without permission. In addition to these admissions, his probation 

officer testified that Brummitt also had removed the required monitoring software from 

his personal computer and refused to participate in psychosexual counseling. The 

district court accepted Brummitt’s admissions as well as the officer’s testimony (the 

court found Brummitt’s denials of this testimony not credible). Based on the relevant 

policy statement of the Sentencing Guidelines for Brummitt’s Class C violations and a 

criminal history score of VI, the recommended 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 additional 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 counsel 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. Nonetheless, 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 counsel 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 discretion 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 probation officer credibly testified to others, an 

argument that the revocation was unsupported 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 personally admitted to these violations. His 
No. 19-1251 Page 3 

personal admissions, coupled with the probation officer’s testimony, more than 

satisfied the preponderance-of-the-evidence standard for establishing the factual basis 

for revocation. 

Counsel next considers and rightly rejects 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 explains, 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 statutory 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 would not assign any more supervision if the 

second term of supervision failed. But even 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 mind renders the new sentence unreasonable. 

Finally, counsel rightly concludes that Brummitt could not raise a reasonable 

argument of ineffective assistance of counsel. Brummitt repeats his belief that counsel 

was ineffective by offering stipulations that Brummitt did not agree to. A defendant in a 

revocation proceeding in district court generally has no right 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 appeal that he did not agree to the proffered 

stipulations. 

We thus GRANT the petition to withdraw and DISMISS the appeal.