United States of America v. John R. Whitlow

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 28, 2010
Decided July 29, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10‐1063
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOHN R. WHITLOW,
Defendant‐Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:00‐cr‐10029‐001
Michael M. Mihm,
Judge.
O R D E R
John Whitlow pleaded guilty to mail fraud, money laundering, and filing a false tax
return, 18 U.S.C. §§ 1931, 1956(a)(1)(B)(I), 1957, and was sentenced to 108 months’
imprisonment with three years’ supervised release. He began supervised release in 2008,
but in November 2009 his probation officer petitioned for revocation because Whitlow
admitted he violated his supervised release conditions by applying for credit without
permission. The district court revoked his release and ordered him to serve another 8
months’ imprisonment with an additional 16 months’ supervised release. Whitlow appeals,
but his appointed counsel has moved to withdraw because he cannot identify any
nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738 (1967). Whitlow has
not accepted our invitation to comment on counsel’s motion. See CIR. R. 51(b). We confine
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 10‐1063 Page 2
our review to the potential issues outlined in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel first tells us that Whitlow wants to challenge his waiver of a revocation
hearing, but finds no potential challenge. A revocation hearing may be knowingly and
voluntarily waived if the defendant knows the charge against him and is advised of the
rights being waived. United States v. LeBlanc, 175 F.3d 511, 517 (7th Cir. 1999). Rule 32.1
outlines the procedural rights required to revoke supervised release: written notice of
alleged violations, disclosure of the evidence against the defendant, the right to appear and
present evidence, representation by counsel, and the right to make a statement in
mitigation, FED. R. CRIM . P. 32.1(b)(2); United States v. Neal, 512 F.3d 427, 435 n.8 (7th Cir.
2008). The district court directly advised Whitlow, and he specifically acknowledged as
much, that he was giving up each of these rights. Any challenge to his waiver would be
frivolous.
Counsel next considers whether Whitlow could challenge the court’s decision to
revoke his supervised release, but concludes that a challenge would be frivolous. A district
court may revoke supervised release if, by a preponderance of the evidence, it determines
that the defendant violated a supervised release condition. 18 U.S.C. § 3583(e)(3); Johnson v.
United States, 529 U.S. 694, 700 (2000); United States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007).
Whitlow’s supervised release conditions forbade him from applying for credit without first
getting his probation officer’s permission, and Whitlow’s admission that he applied for (and
received) credit six times between July and November 2008 conclusively establishes that he
violated these conditions.
Finally counsel considers whether Whitlow might challenge his reimprisonment
term as plainly unreasonable. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007).
Before imposing the 8‐month term, the district court here correctly determined that the
guidelines counseled a 4 to 10 month imprisonment range. See U.S.S.G. § 7B1.4. The court
then considered the appropriate sentencing factors in 18 U.S.C. § 3553(a), noting that
Whitlow was convicted of a very serious fraud, id. § 3553(a)(1), and that even though he still
owed more than $600,000 in restitution he flouted the court’s order and ran up an additional
$13,000 in new credit charges beginning even before he left prison, id. § 3553(a)(2)(A), (C).
The court also noted that Whitlow’s additional credit applications have jeopardized his
ability to make restitution payments to the original victims of his crime, id. § 3553(a)(7). We
agree that any challenge to Whitlow’s imprisonment term as plainly unreasonable would be
frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.

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