United States of America v. Pao Xiong

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2024
Decided March 29, 2024
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-1545
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAO XIONG,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 07-CR-112
William C. Griesbach,
Judge.
O R D E R
Pao Xiong appeals the sentence imposed upon the revocation of his supervised
release, but his appointed counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). We grant the motion and
dismiss the appeal.
A defendant does not have a constitutional right to counsel in revocation
proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973), but our practice is to apply
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-1545 Page 2
the safeguards of Anders to them anyway. See United States v. Brown, 823 F.3d 392, 394
(7th Cir. 2016). In her brief, counsel explains the nature of the case and addresses issues
that an appeal of this kind would typically involve. Because counsel’s analysis appears
thorough, and Xiong did not respond to the motion, see C IR . R. 51(b), we limit our
review to the subjects that she discusses. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
Xiong served 180 months in prison for several felonies related to an arson fire at
his mother’s grocery store in Green Bay, Wisconsin. See 18 U.S.C. §§ 844(h)(1)–(i),
3559(a)(3)–(4). During the first two years of his supervised release, Xiong committed
nine Grade C violations, including speeding and driving under the influence. This
string of violations culminated in a Grade B violation for offenses arising out of a
violent dispute with his fiancée in which he punched a hole in the wall, spat at her,
stopped her from leaving the basement, head-butted her, and told her he would kill her
if she called the police. At his revocation hearing, Xiong did not contest the violations.
The district judge revoked his supervised release and sentenced him to a 12-month
prison term followed by a new two-year term of supervised release.
Because Xiong has completed his 12-month prison term, we briefly address the
matter of mootness. Counsel does not discuss this issue in her brief, but we have an
independent obligation to do so. See E.F.L. v. Prim, 986 F.3d 959, 962–63 (7th Cir. 2021).
Here, Xiong’s release from prison does not moot this appeal because he is still in
custody serving his two-year term of supervised release and could “benefit from
success on appeal.” See Pope v. Perdue, 889 F.3d 410, 414 (7th Cir. 2018).
Counsel reports that Xiong wants to challenge the revocation of supervised
release because he believes that the evidence against him was unreliable. We agree with
counsel that this challenge would be frivolous because the hearing transcript reflects
that Xiong knowingly and voluntarily admitted the government could prove the
violations. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010). And counsel
correctly concludes that there were no procedural defects with the revocation hearing:
Xiong received notice of the alleged violations and disclosure of the evidence against
him; he appeared at the hearing and was represented by counsel; and he had the
opportunity to make a statement and present mitigating arguments. See FED. R. C RIM. P.
32.1(b)(2).
Counsel also correctly concludes that Xiong could not raise a non-frivolous
challenge to the revocation sentence. First, it would be pointless to argue that the

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No. 23-1545 Page 3
sentence was procedurally unsound: Xiong admitted that the government could prove
he committed a Grade B violation, and the district judge correctly assessed Xiong’s
previous criminal history category at III. From there, the judge properly calculated a
policy-statement range of 8–14 months in prison. See U.S.S.G. § 7B1.4(a). It would be
equally fruitless to argue that the sentence was “plainly unreasonable.” United States v.
Yankey, 56 F.4th 554, 560 (7th Cir. 2023). Because Xiong’s 12-month prison term falls
within the policy-statement range, it is presumptively reasonable, see id., and we see
nothing in the record to rebut this presumption. The judge properly considered the
Chapter 7 policy statements and the factors in 18 U.S.C. § 3553(a) to justify the sentence.
See id. at 559–60. He noted, for example, that Xiong’s threats to his fiancée were “serious
violations” and that “nothing less” than a year of incarceration was necessary to deter
that behavior and protect this family and the public.
Similarly, a challenge to Xiong’s new term of supervised release would be
frivolous. A district judge need not separately justify prison and supervised-release
terms when the same explanation justifies both, see United States v. Manyfield, 961 F.3d
993, 997 (7th Cir. 2020), and here the judge’s concerns about deterrence and protection
of the public reasonably support his decision to supplement Xiong’s sentence with a
term of supervision. And, based on Xiong’s original offenses (Class C and D felonies),
the new two-year term of supervised release did not exceed the statutory maximum.
See 18 U.S.C. § 3583(b)(2), (h) (capping term of supervised release upon revocation at the
term of supervised release authorized by statute for the original offense, less any term
of imprisonment imposed upon revocation). Finally, Xiong waived any challenge to the
conditions of his new term of supervised release when his counsel affirmatively told the
judge that Xiong did not object to those conditions. See United States v. Smith, 906 F.3d
645, 650 (7th Cir. 2018).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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