United States of America v. Andre G. Simmons

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2023
Decided February 16, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
No. 22‐2009
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE G. SIMMONS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09‐cr‐122‐jdp‐1
James D. Peterson,
Chief Judge.
O R D E R
The district court revoked Andre Simmons’s supervised release after several
conditions‐of‐release violations, including a conviction for disorderly conduct.
Simmons appeals, but his appointed counsel asserts that the appeal is frivolous and
moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We grant counsel’s
motion and dismiss Simmons’s appeal.1
1 Simmons previously identified by she/her pronouns, but counsel states that
Simmons now uses he/him pronouns; we follow Simmons’s practice.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22‐2009 Page 2
Although a defendant has no absolute right to counsel in revocation proceedings,
see Gagnon v. Scarpelli, 411 U.S. 778, 789–90 (1973), it is our practice to follow the Anders
framework in this context. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016).
Simmons did not respond to counsel’s motion, see C IR . R. 51(b), but counsel addresses
two arguments that she says Simmons wishes to make. Because counsel’s brief explains
the nature of the case, addresses the potential issues that an appeal of this kind might be
expected to involve, and the analysis appears thorough, we focus our review on the
subjects she discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Simmons’s violations occurred a decade after his 2010 conviction on five counts
of distributing crack cocaine. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. He received a sentence
of 20 years in prison, followed by 6 years of supervised release. Simmons successfully
moved for a sentence reduction in 2021 and was released on May 20. The court left
intact the six‐year supervised release term and ordered Simmons to spend the first 180
days after release at a residential reentry center in Wisconsin. He did not report to the
center until over three days after release, having traveled to Minnesota without
permission from, or reporting to, his probation officer. Then, six months later, Simmons
brandished at a bar what appeared to be a firearm, but was actually an airsoft gun
(which projects only non‐metallic objects). He was charged in state court and pleaded
guilty to misdemeanor disorderly conduct.
Simmons’s probation officers successfully petitioned for revocation of release.
The officer alleged that Simmons violated several conditions of release, including:
committing a crime (disorderly conduct), not reporting to probation within 72 hours of
release, leaving the judicial district without permission, lying to his probation officer
during the unauthorized visit to Minnesota, and not completing required monthly
supervision reports. At the hearing on the petition, the court ruled that one of
Simmons’s probation officers could attend by phone because the officer had a
contagious illness and Simmons had questioned him at the preliminary detention
hearing. Next, the court confirmed that Simmons was stipulating to having violated his
supervision conditions by committing a new crime, failing to report to probation within
72 hours of release, leaving the state without permission and lying about it, and not
filing monthly reports (all Grade C violations). See U.S.S.G. § 7B1.1(a)(3). The court
ultimately sentenced Simmons to a year and a day in prison—within the advisory range
that was based on Simmons’s criminal history category of VI and Grade C violations,
see U.S.S.G. §§ 7B1.4(a), 7B1.3(a)(2)—followed by four years of supervised release.

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No. 22‐2009 Page 3
Before we move to counsel’s analysis, we pause to consider mootness. Simmons
has completed his prison term. This does not moot the appeal, however, because he is
still in custody based on his term of supervised release until November 2026. See Pope v.
Perdue, 889 F.3d 410, 414–15 (7th Cir. 2018). Were he to succeed on his appeal, Simmons
could still benefit; a ruling that the district court wrongly revoked his supervision or
that the reimprisonment term was too long could carry “great weight” in a motion
under 18 U.S.C. § 3583(e)(1) to reduce his current supervised‐release term. See United
States v. Sutton, 962 F.3d 979, 982 (7th Cir. 2020) (quoting Pope, 889 F.3d at 415).
Counsel first considers whether Simmons has a non‐frivolous challenge to the
revocation. It is unclear whether counsel confirmed, as she should have, that Simmons
wants to challenge the revocation and if so, whether he wants to argue that his
admissions were not knowing and voluntary. See United States v. Wheeler, 814 F.3d 856,
857 (7th Cir. 2016); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Regardless, we
agree with her that Simmons lacks a plausible argument against the revocation. To
revoke his supervised release, the court had to find by a preponderance of the evidence
that Simmons violated a condition of his release. See 18 U.S.C. § 3583(e)(3). Here,
Simmons stipulated that he violated multiple conditions of his release. Moreover,
before the revocation hearing, the government provided evidence of the bar incident
and Minnesota trip. And Simmons testified that he traveled to Minnesota knowing that
the travel was unauthorized and that he brought the airsoft gun to the bar. Nothing in
the record suggests that Simmons’s stipulations or testimony were involuntary or
factually unsupported. Finally, counsel rightly concludes that it would be frivolous for
Simmons to argue that the court lacked authority to revoke here, as his term did not
expire until May 2027.
Counsel next concludes that it would be frivolous for Simmons to argue that the
revocation hearing did not comply with Federal Rule of Criminal Procedure 32.1. It was
undisputed at the hearing that Simmons had received a copy of the petition and
summary of the evidence against him, and he was present, gave evidence, and had
counsel. See F ED. R. C RIM . P. 32.1. Although a probation officer attended by phone, the
court permissibly found that, in light of that officer’s illness and Simmons’s previous
chance to question him, the “interest of justice” did not require the officer’s physical
presence. See id. 32.1(b)(2)(C); United States v. Jordan, 765 F.3d 785, 787 (7th Cir. 2014).
Counsel also considers whether Simmons has a non‐frivolous challenge to his
sentence and correctly concludes he does not. Simmons’s prison term did not exceed the
statutory maximum: because his underlying drug offenses were Class B felonies,

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No. 22‐2009 Page 4
see 18 U.S.C. § 3559(a)(2), the term could not—and did not—exceed three years.
18 U.S.C. § 3583(e)(3). The year‐and‐a‐day prison term was within the range
recommended by the Chapter 7 policy statements, and so we would presume it is
reasonable. See United States v. Yankey, 56 F.4th 554, 560 (7th Cir. 2023). And nothing in
the record would disturb that presumption. Following 18 U.S.C. § 3583(e), the court
assessed the relevant statutory factors under 18 U.S.C. § 3553(a), including the nature of
Simmons’s violations and his characteristics, giving “a concise explanation on the
record that reflects that it considered the proper factors.” See United States v. Hollins,
847 F.3d 535, 541 (7th Cir. 2017). It acknowledged Simmons’s progress toward
rehabilitation, but in light of his “risky conduct,” dishonesty, and failure to follow
supervision rules, it concluded that revocation, a prison term of 12 months, and more
supervision were appropriate. Although counsel does not address Simmons’s new four‐
year term of supervised release, this omission does not impede our analysis because the
term is within the recommended range, see 18 U.S.C. § 3583(h); U.S.S.G. § 7B1.3(g)(2),
and the court explained why it thought additional supervised release was necessary.
Finally, counsel tells us that Simmons wishes to argue that the district court
relied on two inaccuracies at sentencing—that he had committed misdemeanor
disorderly conduct and “could have been charged with escape” for failing to report to
the reentry center. Although a court’s reliance on inaccurate information could
invalidate a sentence, see United States v. Spivey, 926 F.3d 382, 385 (7th Cir. 2019),
counsel rightly concludes that Simmons cannot plausibly raise this argument.
Regarding the disorderly‐conduct conviction, counsel notes that Simmons
stipulated to it and presented a document showing that he pleaded guilty to a charge of
disorderly conduct. He may not now argue that the information he supplied entitles
him to relief. See United States v. Grisanti, 943 F.3d 1044, 1052 (7th Cir. 2019). Even were
we to review for plain error, nothing in the record suggests this information is incorrect.
As to Simmons’s attack on the judge’s statement that he could have been charged
with escape, counsel notes the problem of waiver. When the judge said that the failure
to report “[c]ould have been an escape charge,” defense counsel agreed with the court
and responded: “Yeah.” But even if we were to decide that Simmons merely forfeited
this attack and give it plain‐error review, see United States v. Oliver, 873 F.3d 601, 607
(7th Cir. 2017), Simmons could not reasonably argue that the statement was plainly
wrong. Although we have not held that disobeying a condition of release to report to a
reentry center is an escape, case law from other circuits (with which we have not
disagreed) suggests that is. See, e.g., United States v. Edelman, 726 F.3d 305, 309 (2d Cir.

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No. 22‐2009 Page 5
2013) (leaving halfway house is escape). But see United States v. Burke, 694 F.3d 1062,
1065 (9th Cir. 2012) (leaving halfway house is not escape). The court’s statement was
thus not plain error.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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