United States of America v. Gary Petty

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 28, 2007
Decided June 29, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-4394
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY PETTY
Defendant-Appellant.
Appeal from the United States
District Court for the Eastern
District of Wisconsin
No. 91-CR-283
Rudolph T. Randa,
Chief Judge.
O R D E R
After Gary Petty violated the terms of his supervised release, the district
court ordered that he be reimprisoned for 60 months. Petty appealed, but his
appointed attorney moves to withdraw because he cannot identify any nonfrivolous
issues to argue on appeal. See Anders v. California, 386 U.S. 738 (1967). Petty has
not responded to our invitation to comment on counsel’s motion, see Cir. R. 51(b),
and so we confine our review to the potential issues identified in counsel’s facially
adequate brief, see United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
In 1992 Petty pleaded guilty to conspiracy to possess with intent to distribute
cocaine, and the district court sentenced him to 132 months’ imprisonment and five
years’ supervised release. After completing his federal prison sentence, Petty
served a Wisconsin sentence before beginning his term of supervised release in July
2004. In February 2006, Milwaukee police officers arrested Petty on suspicion of
selling cocaine from the daycare van he drove as his part-time job. A few months
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-4394 Page 2
later Petty’s probation officer petitioned the district court to revoke his supervised
release. The probation officer alleged that Petty had violated the conditions of his
supervised release by being arrested on the drug charge in February, possessing
drugs at that time, failing to timely report his contact with law enforcement, and
submitting false Monthly Supervision Reports that said nothing about his arrest.
At the revocation hearing Petty did not contest any of the four alleged violations,
and the district court found that he indeed had violated the terms of his supervised
release. The applicable policy statement called for a term of reimprisonment of 51
to 63 months. See U.S.S.G. § 7B1.4 The district court imposed 60 months,
reasoning that a term of that length was appropriate in light of Petty’s recidivism
and the circumstances surrounding his drug selling in February 2006.
Counsel first considers arguing that the district court erred by revoking
Petty’s supervised release. Before revoking supervised release, a district court must
find by a preponderance of the evidence that the defendant violated the terms of his
release. United States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007). In this case, as
counsel notes, Petty did not dispute the facts underlying the violations, and indeed
his guilt on the drug charge—the most serious violation of his supervised
release—was established beyond a reasonable doubt by the guilty plea he entered in
state court. The record amply supports the factual basis for the other violations.
We therefore agree with counsel’s assessment that it would be frivolous to argue
that the violations were not established by a preponderance of the evidence.
Next counsel considers arguing that the district court imposed an
unreasonably long prison term. We have reserved decision on whether the “plainly
unreasonable” standard we applied before United States v. Booker, 543 U.S. 220
(2005), has been replaced with a simple reasonableness inquiry. Flagg, 481 F.3d at
949. But challenging the term of reimprisonment would be frivolous under either
standard, even if they are materially different. The district court acknowledged its
obligation to consider the sentencing guidelines and the factors under 18 U.S.C.
§ 3553(a), see United States v. Carter 408 F.3d 852, 854 (7th Cir. 2005), and, indeed,
the record reflects careful consideration of both. Petty pointed to his recent
employment history and his family ties as factors supporting a term of
reimprisonment below the range prescribed by the policy statements. The court,
however, was more persuaded by factors such as Petty’s lengthy criminal history
(even in 1992 he was a career offender), his continued disregard for the law after
getting a below-guidelines sentence in 1992, and the severity of his violations.
Counsel does not identify any errors in the calculation of the guidelines range or
any factors that would a compel a term of less than 60 months’ reimprisonment.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.

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