United States of America v. Kentaro L. Hawkins

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 12, 2010
Decided May 13, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐3782
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENTARO L. HAWKINS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 4:97 CR 40060‐002‐JPG
J. Phil Gilbert,
Judge.
O R D E R
Kentaro Hawkins was sentenced to a total of 151 months’ imprisonment and 3 years’
supervised release after he pleaded guilty to two counts of possessing and distributing
crack cocaine. See 21 U.S.C. § 841(a)(1). The prison term was later reduced after Hawkins’s
base offense level was lowered by a retroactive amendment to the guidelines, see 18 U.S.C. §
3582(c)(2); U.S.S.G. § 1B1.11, and in March 2008 he was released from custody. In June 2009,
however, Hawkins violated the conditions of his supervised release by, among other things,
possessing and delivering marijuana on school grounds, which he admitted at a revocation
hearing. The district court revoked Hawkins’s supervised release and ordered him to serve
another 24 months’ imprisonment. Hawkins appeals, but his appointed counsel has
concluded that the appeal is frivolous and moves to withdraw. See Anders v. California, 386
U.S. 738, 744 (1967). We invited Hawkins to respond to counsel’s motion, but he did not.
See CIR. R. 51(b). We limit our review to the potential issues identified in counsel’s facially
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐3782 Page 2
adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel has identified several grounds for appeal, but all are frivolous. First,
counsel questions whether Hawkins could argue that the district court abused its discretion
by revoking his supervised release. But revocation was mandatory after Hawkins admitted
to possessing marijuana, a controlled substance. See 18 U.S.C. § 3583(g)(1).
Counsel also briefly considers whether there were any procedural irregularities in
the revocation proceedings but correctly concludes that the district court complied with
Federal Rule of Criminal Procedure 32.1. Hawkins was represented by counsel, received
written notice of the alleged violations, and was allowed to make a statement in mitigation.
See FED. R. CRIM . P. 32.1(b). We agree that it would be frivolous for Hawkins to claim any
procedural error.
Next, counsel wonders whether Hawkins could challenge the length of the
reimprisonment. We will uphold a term of reimprisonment imposed on revocation of
supervised release unless it is “plainly unreasonable.” United States v. Kizeart, 505 F.3d 672,
674‐75 (7th Cir. 2007). In selecting an appropriate prison term to follow revocation, district
courts must consider the policy statements in the guidelines, see U.S.S.G. ch. 7, pt. B, and the
sentencing factors set out in 18 U.S.C. § 3553(a). United States v. Neal, 512 F.3d 427, 438 (7th
Cir. 2008); United States v. Pitre, 504 F.3d 657, 664 (7th Cir. 2007). Here, the court could not
imprison Hawkins for more than two years. See 18 U.S.C. § 3583(e)(3). Hawkins had
committed a Grade A violation, see U.S.S.G. § 7B1.1(a)(3), and the district court correctly
calculated a guidelines reimprisonment range of 18 to 24 months. (The district court
announced the correct range but misspoke and said that Hawkins’s criminal history
category was II instead of III, which would have yielded a guidelines range of 15 to 21
months. See U.S.S.G. § 7B1.4. Counsel, who represented Hawkins at the revocation hearing,
repeats the court’s misstatement in her brief and, inexplicably, describes the range
calculated by the court both as 12 to 18 months and 18 to 24 months.) We agree that it
would be frivolous to challenge this term as plainly unreasonable. The term, which the
district court deemed necessary in light of the nature of Hawkins’s offense, is within the
range of 18 to 24 months recommended by the policy statements in the guidelines,
see U.S.S.G. § 7B1.4, and is within the statutory maximum, see 18 U.S.C. § 3583(e)(3).
Last, counsel considers whether Hawkins could argue that he received ineffective
assistance of counsel during the revocation proceedings. Counsel correctly acknowledges,
however, that a claim of ineffective assistance generally should be presented in a collateral
action under 28 U.S.C. § 2255, especially where, as here, Hawkins’s appellate counsel also
represented him at his revocation hearing. See Massaro v. United States, 538 U.S. 500, 504‐05

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No. 09‐3782 Page 3
(2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). Moreover, during the
revocation proceedings, Hawkins conceded that he violated the terms of his supervised
release and did not offer any justification for doing so or any ground in mitigation.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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