United States of America v. Avery Smartt

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2022
Decided January 24, 2023
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1637
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AVERY SMARTT,
Defendant-Appellant.
Appeal from the
United States District Court for the
Southern District of Illinois.
No. 18-CR-30138-NJR-01
Nancy J. Rosenstengel,
Chief Judge.
-- AND --
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Nos. 21-1637 & 21-2297 Page 2
Argued April 27, 2022
Decided January 24, 2023
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-2297
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENNY BUTLER,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:17-CR-00700(1)
Andrea R. Wood,
Judge.
O R D E R
These unrelated criminal appeals were heard by separate panels and are resolved
today in published opinions. But they share a common feature: the same attorney, Amir
Mohabbat, was appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, to
represent the defendants on appeal. It should be clear from our opinions that we have
serious concerns about counsel’s conduct. In Benny Butler’s case, Mohabbat raised
arguments that are waived, inexcusably undeveloped, and frivolous on the merits. In
Avery Smartt’s case, his arguments are likewise inexcusably undeveloped and
frivolous.
If an appointed attorney in a direct criminal appeal cannot formulate a
nonfrivolous argument for review, then the proper course is to file an Anders brief and
move to withdraw from the case. See Anders v. California, 386 U.S. 738, 744 (1967).

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Nos. 21-1637 & 21-2297 Page 3
Mohabbat instead submitted badly deficient briefs pressing frivolous claims, tossing in
a few case citations along the way, none of which support an argument for reversal and
some of which are inapplicable, inaccurate, and/or misleading. For example, in Butler’s
case he twice cited a dissent—from our denial of rehearing en banc in United States v.
Daoud, 989 F.3d 610 (7th Cir. 2021) (mem.)—without telling us that he was relying on a
minority viewpoint.
There was more along these lines in yet another of Mohabbat’s criminal appeals:
United States v. Ocampo-Tellez (No. 21-2967, dismissed June 7, 2022). In that case he orally
moved to dismiss the appeal during oral argument in response to the panel’s questions.
This pattern of deficient work by a CJA lawyer is concerning. We considered
sanctions but settled on a warning instead. This order—and our opinions in these
cases—shall serve as a warning and a reminder to Mohabbat that he must heed his
professional obligations. See Wegbreit v. Comm’r, 21 F.4th 959, 964 (7th Cir. 2021).

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