United States of America v. Marcus M. Henry

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2009∗
Decided December 11, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-1309
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCUS M. HENRY,
Defendant-Appellant.
Appeal from the United
States District Court for the
Eastern District of Wisconsin.
No. 00-CR-84
Rudolph T. Randa, Judge.
Order
Marcus Henry was released from prison promptly after the district court cut 36
months off his sentence for distributing crack cocaine. (The reduction was authorized
by 18 U.S.C. §3582(c)(2) and the Sentencing Commission’s retroactive changes to the
Guidelines for crack-related offenses.) Within a month Henry was back in court,
charged with violating the conditions of his supervised release. He stipulated to nine
violations, and the district court ordered him to serve an additional 14 months in prison,
to be followed by four additional years of supervised release.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09-1309 Page 2
Henry filed a notice of appeal. His lawyer moves to withdraw, concluding after
the analysis required by Anders v. California, 386 U.S. 738 (1967), that the appeal is
frivolous. Henry was invited to respond, see Circuit Rule 51(b), but has not done so.
We agree with counsel’s assessment. Given Henry’s stipulation to nine
violations, any challenge to the fact of revocation would be frivolous. And given the
fact that the 14-month sentence is below the Sentencing Commission’s
recommendation of 24 to 30 months for a Grade A violation by a person with Henry’s
criminal history category of IV, see U.S.S.G. §7B1.4(a)(1), the sentence is presumed
reasonable. See Rita v. United States, 551 U.S. 338 (2007); United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). We cannot envisage any non-frivolous argument that 14
months is unreasonably high.
What is more, the 14-month term has expired (the district court gave Henry
credit for time served between his arrest on the violation charge and the new
sentencing), and Henry has again been placed on supervised release, from which he has
absconded. The Probation Office has filed a report stating that Henry has not been seen
by his counsellor since June 24, 2009. The district court has issued a bench warrant for
his arrest. This appeal not only is frivolous but also is subject to dismissal under the
fugitive disentitlement doctrine. See Molinaro v. New Jersey, 396 U.S. 365 (1970).
The motion to withdraw is granted, and the appeal is dismissed.

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