United States of America v. Jonathan J. Henry

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 25, 2009
Decided March 25, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐3295
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JONATHAN J. HENRY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 05‐30083‐001
Jeanne E. Scott,
Judge.
O R D E R
Jonathan Henry pleaded guilty to passing counterfeit currency, see 18 U.S.C. § 472,
and was sentenced to two years’ imprisonment, followed by three years of supervised
release. Henry completed his prison term but violated the conditions of his release, so the
district court revoked his supervised release and reimprisoned him for another 22 months.
Henry filed a notice of appeal, but his appointed counsel has concluded that any ground for
appeal would be frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738
(1967). Counsel identifies two potential issues in his brief, and Henry’s response, see CIR. R.
51(b), identifies no others. Thus, we address only those discussed by counsel. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐3295 Page 2
Four months after Henry was freed, his probation officer complained that Henry had
committed multiple violations of his release conditions: he stole his ex‐girlfriend’s truck and
a Mercedes Benz; he failed to submit timely supervision reports; he moved to a new
residence without informing his probation officer; he failed to notify the probation officer
after police questioned him about an argument with his ex‐girlfriend; and he skipped
mandatory drug tests. Henry denied stealing the vehicles but otherwise admitted the
allegations. The district court found that Henry did steal his ex‐girlfriend’s truck (though
not the Mercedes) and revoked his supervised release.
Counsel first considers challenging the district court’s revocation decision. Our
review would be for abuse of discretion. See United States v. Young, 41 F.3d 1184, 1186 (7th
Cir. 1994). To revoke a term of supervised release, a district court must find by a
preponderance of the evidence that a defendant violated a condition of his release. 18
U.S.C. § 3583(e)(3); United States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007). Counsel wonders
whether Henry might argue that the court erroneously found that he stole his ex‐girlfriend’s
truck. (Henry presses the same contention in his Rule 51(b) response.) Challenging this
finding would gain Henry nothing because he admitted that he violated the drug‐testing
condition of his release, an infraction that itself mandated revocation and imposition of a
prison term. See 18 U.S.C. § 3583(g). Moreover, it would be frivolous to challenge the
district court’s finding that Henry stole his ex‐girlfriend’s truck. To prove this violation by a
preponderance of the evidence, the prosecution needed only to show that it was more likely
than not that the truck was worth more than $300 and that Henry possessed it without
authorization and did not intend to return it. See 720 Ill. Comp. Stat. 5/16‐1 (2006). Henry’s
former girlfriend testified that her $2,000 truck and its keys disappeared the same day that
Henry ended their relationship and moved out of her home. She reported the truck stolen
and it was later recovered in Florida, which was Henry’s next known location. This
evidence easily shows by a preponderance that Henry stole the truck.
Counsel also contemplates challenging the length of Henry’s term of
reimprisonment. We would uphold an additional prison term unless it is “plainly
unreasonable,” United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007), and require only
that the district court consider the policy statements in Chapter 7 of the sentencing
guidelines and the sentencing factors set forth in 18 U.S.C. § 3553(a), United States v. Neal,
512 F.3d 427, 438‐39 (7th Cir. 2008). Here the district court correctly determined that
Henry’s truck theft constituted a Class B violation because it was punishable by two to five
years in prison. See 720 Ill. Comp. Stat. 5/16‐1(b)(4) (2006); 730 Ill. Comp. Stat. 5/5‐8‐1(a)(6)
(2006); U.S.S.G. § 7B1.1(a)(2). The court accurately concluded that this offense, combined
with Henry’s Category VI criminal history, yielded an advisory reimprisonment range of 21
to 27 months, see U.S.S.G. § 7B1.4(a), which by statute was capped at 24 months, see 18
U.S.C. § 3583(e)(3). The district court settled on 22 months after observing that Henry had

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No. 08‐3295 Page 3
compiled a lengthy criminal record and quickly racked up many violations of his release
conditions. We agree with counsel that this was adequate consideration.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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