U.S. v. Eskridge

• Citation: 445 F.3d 930
• Decision Date: 19 April 2006
• Docket Number: No. 05-2808.,05-2808.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William ESKRIDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

445 F.3d 930

UNITED STATES of America, Plaintiff-Appellee, v. William ESKRIDGE, Defendant-Appellant.

No. 05-2808.

United States Court of Appeals, Seventh Circuit.

Submitted December 13, 2005.

Decided April 19, 2006.

Michelle L. Jacobs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Dianne M. Erickson, Wasielewski & Erickson, Milwaukee, WI, for Defendant-Appellant.

William Eskridge, Pekin, IL, pro se.

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

William Eskridge was convicted in 1992 of federal crimes and was sentenced to two consecutive prison terms to be followed by two concurrent 36-month terms of supervised release. He violated the terms of his supervised release in 2002, 2004, and 2005, and each time was sent back to prison. He appeals from the imposition in 2005 of a 22-month prison term on the basis of his latest violation. His lawyer moved to withdraw on the ground that there is no nonfrivolous ground for challenging the term. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We think there is a nonfrivolous ground, and in the usual case that would require us to deny the lawyer's motion to withdraw and order counsel to brief the merits before we could decide the nonfrivolous issue, because to do otherwise would violate the appellant's constitutional right to counsel. Smith v. Robbins, 528 U.S. 259, 277, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). But this presupposes that the appellant has a constitutional right to counsel, and he may not in a case in which he is complaining not about an ordinary criminal judgment but about a revocation of supervised release and concomitant order returning him to prison. Anders was based not on the Sixth Amendment's right to counsel, which does not extend to appellate proceedings, Martinez v. Court of Appeal, 528 U.S. 152, 160, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), but on the idea, first announced in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), that the equal protection of the laws requires the government to provide the indigent with counsel in the initial appeal from a criminal conviction if the affluent are permitted to appeal with the assistance of counsel. In the situation, analogous to that presented in this case, of revoking probation, the Supreme Court has held that the defendant has a constitutional right to counsel only if the denial of counsel would violate due process of law, which ordinarily will be true only if the defendant makes a colorable claim "(i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate." Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); see also United States v. Yancey, 827 F.2d 83, 89 (7th Cir.1987).

The Court did add that "the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself." 411 U.S. at 790-91, 93 S.Ct. 1756; see United States v. Stocks, 104 F.3d 308, 311 (9th Cir.1997). But we interpret this to be a reference to cases in which it is unclear whether the two criteria that constitute the test quoted in the preceding paragraph have been satisfied. If it is clear that they have not been satisfied, it is unnecessary to ask whether the probationer can represent himself effectively. For if that were a free-standing test of due process, cases (cited below) that deny a right of counsel in postconviction proceedings would not make sense, for the issues presented in such proceedings are often quite beyond the ability of the average prisoner to address effectively.

We cannot think of any reason for using a different test for when there is a right to counsel in proceedings to revoke supervised release from Gagnon's test of the right to counsel in proceedings to revoke probation, given the similarity between the two types of revocation, as we noted in United States v. Dillard, 910 F.2d 461, 464 n. 2 (7th Cir.1990) (per curiam); see also United States v. Jones, 299 F.3d 103, 109 (2d Cir.2002). It is true that we assumed in United States v. Goad, 44 F.3d 580, 586, 589 (7th Cir.1995), that there is a right to counsel in supervised-release cases, but it was merely an assumption. The Second Circuit assumed the contrary in United States v. Pelensky, 129 F.3d 63, 68 n. 8 (2d Cir.1997), and the Ninth Circuit is on both sides of the issue. Compare United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000), which did not cite Gagnon, with United States v. Soto-Olivas, 44 F.3d 788, 792 (9th Cir.1995), which did. We now hold that the proper approach is the one that the Supreme Court's Gagnon opinion prescribed for revocation of probation.

Since Eskridge did not deny that he had violated the conditions of his supervised release or suggest any grounds in justification or mitigation, due process did not entitle him to counsel either in the district court, where in fact he had counsel by virtue of 18 U.S.C. §§ 3006a(a)(1)(C), (E) (2004 & Supp. I), and Fed.R.Crim.P. 32.1, or in this court. The statute, it is true, entitled him to counsel in this court as well, 18 U.S.C. § 3006A(c), and if his lawyer failed to brief a nonfrivolous issue this might make his representation of Eskridge "ineffective" and therefore inconsistent with the requirement that the Supreme Court has read into the Sixth Amendment that a criminal defendant's counsel be effective. But that is of no moment as far as Anders is concerned, since Eskridge has no Sixth Amendment right to counsel (nor, unlike Douglas and Anders, a right founded on the equal protection clause). Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), so held in the analogous case of postconviction counsel; see also United States v. Kimberlin, 898 F.2d 1262, 1265 (7th Cir.1990). So we are not precluded from addressing the merits of Eskridge's appeal and affirming the district court's judgment if we determine that the appeal, though not frivolous, is also not meritorious. Even more clearly, we are free to reverse. So let us turn to the merits.

When Eskridge was first convicted, the supervised-release statute provided that a defendant whose release was revoked could not be reimprisoned for more than two years if the offense of conviction was merely a Class C or Class D felony; Eskridge had been convicted of one of each. 18 U.S.C. § 3583(e)(3) (1988 & Supp. IV). This ceiling applied, moreover, to the aggregate of reimprisonments based on multiple revocations. United States v. Beals, 87 F.3d 854, 857-58 (7th Cir.1996), overruled on other grounds by United States v. Withers, 128 F.3d 1167 (7th Cir.1997); United States v. Merced, 263 F.3d 34, 37 (2d Cir.2001) (per curiam); United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir.1999) (per curiam). Before his latest revocation, Eskridge had served 14 months in prison for his previous revocations, and so, since two years equals 24 months, he could not be sentenced to more than 10 months for the third revocation. Or so it might seem. But there is a wrinkle. To straighten it out will require a brief excursus into an esoteric corner of federal criminal procedure.

Congress in 1994 ordained that upon revoking a term of supervised release, the district court could impose a prison term followed by more supervised release. 18 U.S.C. § 3583(h). Eskridge was originally sentenced in 1992, however, and in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), the Supreme Court held that section 3583(h) could not be applied retroactively. But the Court also held that upon revocation of a term of supervised release imposed prior to the enactment of that statute, the district court could impose a term of reimprisonment and a further term of supervised release, provided that the sum of the terms did not exceed the original term of supervised release. When as in this case supervised release is revoked and the defendant reimprisoned, he gets no credit for time previously served on supervised release. 18 U.S.C. § 3583(e)(3) (1988 & Supp. IV); United States v. Withers, supra, 128 F.3d at 1169 n. 3. So while Eskridge was entitled to 14 months' credit for the reimprisonment time that he served, he was entitled to no credit for the portion of the 36 months of supervised release that he had served before revocation. The same is true with respect to the portions of the 26-month and 12-month terms of supervised release that he served after the first and second revocations, respectively, before they were also revoked. And so the judge was entitled...