United States v. Peterson, No. 16-2493 (7th Cir. 2017)

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In 2006, Peterson was convicted of distributing crack cocaine, 21 U.S.C. 841(a)(1). He served eight years in prison. Within two weeks after the start of his term of supervised release, Peterson was arrested for drunk driving while outside the judicial district without permission. His probation officer did not seek revocation at that time. About two years later, Peterson encountered an adversary at a bar. A surveillance video shows Peterson pursuing his adversary, armed with a pistol lent him by a friend. On the street, his adversary attacked Peterson with a knife, seriously wounding him. Peterson didn’t attempt to use the gun but hid it under a garbage can after fleeing police officers who saw the attack. Peterson pleaded guilty as a felon in possession of a gun, 18 U.S.C. 922(g), and was sentenced to 48 months’ imprisonment, nine months below the guidelines range. The judge revoked Peterson’s supervised release, replacing it with a six‐month term of imprisonment to run consecutively to the 48‐month term. Peterson filed notices of appeal, but his appointed counsel sought to withdraw. Peterson neither wanted his guilty plea set aside nor wished to contest the revocation of supervised release. Counsel concluded that any challenge to the length of the terms or the decision to make them consecutive would be frivolous. The Seventh Circuit agreed, dismissing the appeals.

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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 16 2493, 2494 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL PETERSON, Defendant Appellant. ____________________ Appeals from the United States District Court for the Western District of Wisconsin. Nos. 3:06 cr 00139 bbc 1 & 3:15 cr 00142 bbc 1 Barbara B. Crabb, Judge. ____________________ SUBMITTED FEBRUARY 2, 2017 — DECIDED FEBRUARY 14, 2017 ____________________ Before WOOD, Chief Judge, and POSNER and KANNE, Cir cuit Judges. POSNER, Circuit Judge. In 2006 Michael Peterson was con victed of distributing crack cocaine, see 21 U.S.C. § 841(a)(1), for which he served eight years in prison. In January 2014, fewer than two weeks after his release and the start of his term of supervised release, Peterson was arrested for drunk 2 Nos. 16 2493, 2494 driving while outside the judicial district without permis sion. His probation officer did not seek revocation at that time, and for nearly two years afterward Peterson took posi tive steps toward reestablishing his life: He started a busi ness, got married, and began caring for his new stepson. But in November 2015 Peterson encountered a long term adversary at a bar. According to Peterson the two men en gaged in a verbal altercation (who started it or what it was about remains undetermined), but a surveillance video shows Peterson pursuing his adversary as he left the bar armed with a pistol lent him by a friend “as a means of de fense.” (Why Peterson pursued him is another undeter mined feature of the case.) Out on the street the other man attacked Peterson with a knife, seriously wounding him. Though his borrowed gun was in his waistband, Peterson didn’t attempt to use it but instead hid it under a garbage can after fleeing two police officers who had observed the attack. Arrested and later charged with being a felon in posses sion of a gun in violation of 18 U.S.C. § 922(g), Peterson pleaded guilty and was sentenced to 48 months’ imprison ment, 9 months below the guidelines imprisonment range calculated by the district judge. The judge revoked Peter son’s supervised release, the terms of which he’d violated by having been armed, and replaced it with a 6 month term of imprisonment to run consecutively to the 48 month term for the illegal possession. See 18 U.S.C. § 3583(e)(3). Peterson filed notices of appeal from both the revocation of supervised release and his new conviction, but his ap pointed counsel advises us that both appeals are frivolous, and therefore seeks to withdraw from representing his cli Nos. 16 2493, 2494 3 ent, citing Anders v. California, 386 U.S. 738 (1967). We invited Peterson to respond to counsel’s motion, but he has not done so. Counsel represents that he consulted Peterson and con firmed that he neither wants his guilty plea set aside nor wishes to contest the revocation of supervised release. Left to consider only whether a nonfrivolous argument could be made against the procedural or substantive reasonableness of his client’s prison terms, counsel concluded that any chal lenge to the length of those terms would be futile because the district judge had correctly calculated both the guide lines range and the policy statement range applicable to the revocation of supervised release, see U.S.S.G. §§ 7B1.1(a)(2), 7B1.4, had treated the ranges as advisory, had evaluated Pe terson’s arguments in mitigation and applied the sentencing factors set forth in 18 U.S.C. § 3553(a), and finally had im posed a prison sentence below the applicable guidelines and policy statement ranges. See United States v. Jones, 774 F.3d 399, 404–05 (7th Cir. 2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008). Counsel further notes that challenging the judge’s deci sion to run Peterson’s two prison terms consecutively— which counsel considers to be Peterson’s major complaint about the sentence—would conflict with the Sentencing Commission’s advice that consecutive terms be imposed when revocation of supervised release is the result of a new prison sentence. See U.S.S.G. § 7B1.3(f) and Application Note 4; United States v. Taylor, 628 F.3d 420, 423–24 (7th Cir. 2010). Moreover, both sentences that the judge imposed on Peter son were below their guideline ranges. Counsel’s motion to withdraw is granted and the appeals are dismissed.

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