United States of America v. Julian Breal

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 6, 2026
Decided January 9, 2026
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 25-1320
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIAN BREAL,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 3:22-CR-50044(1)
Iain D. Johnston,
Judge.
O R D E R
Julian Breal was convicted by a jury of the assault of a fellow federal prisoner
resulting in serious bodily injury and sentenced to 108 months’ imprisonment. Breal
appealed, but his appointed counsel asserts the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Because counsel’s analysis
appears thorough, we limit our review to the subjects that counsel discusses and that
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Breal raises in the response he filed under Circuit Rule 51(b). See United States v. Bey,
748 F.3d 774, 776 (7th Cir. 2014). We grant counsel’s motion and dismiss the appeal.
Breal was sentenced in 2013 to 50 years in federal prison for kidnapping,
conspiracy to commit hostage taking, hostage taking, and possession of a firearm in
furtherance of a crime of violence. While incarcerated at FCI Thomson, Breal attacked
his cellmate, Wilibaldo Martinez-Vivanco. Breal was indicted in 2022 for assault with
the intent to commit murder, see 18 U.S.C. § 113(a)(1), and assault resulting in serious
bodily injury, see id. § 113(a)(6). He pleaded not guilty to both counts.
The case proceeded to trial, at which the government presented the following
evidence. Martinez testified through an interpreter that Breal began threatening him
shortly after they were assigned to share a cell. One day, Breal threatened to kill
Martinez if he returned to their cell after recreation. Martinez did return. Breal attacked
him, punching and kicking him in the head until he fell unconscious. Martinez testified
that he believed Breal stabbed him with a plastic knife, though correctional officers did
not find a knife in the cell.
Martinez had several serious fractures and lacerations to his face and ears. One
of Martinez’s treating physicians was certified as an opinion witness and testified that
the most serious fracture to Martinez’s jaw was likely inflicted by over 200 pounds of
force. That doctor operated to repair some of the fractures, installing metal plates and
screws to realign Martinez’s bones and jaw. Breal was uninjured. In a video admitted by
the government, a nurse asked Breal if he was hurt, and Breal responded, “Golden
Gloves 1994, Havana, Cuba,” and “No injuries, Miss. I am untouchable.”
Breal chose not to testify or put forward evidence. Before closing arguments, he
moved for a judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal
Procedure, contending that the evidence did not show that he intended to kill Martinez
or that Martinez suffered a serious bodily injury within the meaning of 18 U.S.C.
§ 113(a)(6). “Serious bodily injury” includes “extreme physical pain” or “protracted and
obvious disfigurement,” 18 U.S.C. §§ 113(a)(6), 113(b)(2), 1365(h)(3)(B)–(C); see United
States v. Wilson, 698 F.3d 969, 970 (7th Cir. 2012), and Breal urged that Martinez’s scars
had begun to heal and thus were not obviously and permanently disfiguring. The court
denied the motion based on the testifying doctor’s statements, as well as the
photographs and videos of the grisly injuries. Breal renewed his motion to acquit four
months after the verdict, but the court again found the evidence sufficient to convict.

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No. 25-1320 Page 3
The parties discussed the jury instructions extensively, and Breal—through
counsel—ultimately approved each instruction. The jury found Breal guilty of assault
resulting in serious bodily injury.
The district court sentenced Breal to 108 months (to run consecutively to the
30-plus years remaining on his original sentence), well above his guideline range of 41
to 51 months (based on an offense level of 21 and criminal history category of II). A key
determinant in the calculation of Breal’s offense level was a seven-level enhancement
for assault causing permanent injury. See U.S.S.G. § 2A2.2(b)(3)(C). In addition, the
court noted that Breal’s criminal history category of II failed to account for much of his
extensive criminal background, including a history of assaults and other crimes too
dated to be considered in the criminal-history calculations, several prison-disciplinary
proceedings, and a pending charge for the assault of a state correctional officer (about
which the officer testified at Breal’s sentencing). Breal objected to the weight given to
the new assault but conceded that the court could consider it. As for the sentencing
factors under 18 U.S.C. § 3553(a), the court highlighted Breal’s extensive criminal
history, the severity of the beating, and the need to protect the public.
Counsel first considers whether Breal could plausibly challenge any aspect of the
jury instructions and correctly concludes that he cannot. Counsel notes that the only
disputed jury instruction related to assault with intent to commit murder—the charge
of which Breal was acquitted—and that the defense in fact approved of it. And although
the jury instructions omitted an element necessary to prove assault—that the assault
occur in a location subject to federal jurisdiction—any error would be harmless because
evidence that the fight occurred at FCI Thomson was overwhelming. See United States v.
Maez, 960 F.3d 949, 964 (7th Cir. 2020).
Counsel next considers and rightfully rejects any challenge to the sufficiency of
the evidence to convict Breal. To obtain a conviction for assault causing serious bodily
injury, the government had to prove beyond a reasonable doubt that Breal assaulted
Martinez and caused serious bodily injury—e.g., an injury involving “extreme physical
pain” or “protracted and obvious disfigurement.” 18 U.S.C. §§ 113(a)(6), 113(b)(2),
1365(h)(3)(B)–(C). Although Breal denied that Martinez’s pain was “extreme” or his
scars sufficiently visible and permanent, a reasonable jury could find otherwise, given
the severity of the beating and scars that remained visible more than six months after
the assault. See Wilson, 698 F.3d at 971.
For the same reasons, counsel determines that Breal could not successfully
challenge the seven-level enhancement for assault causing permanent or life-

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No. 25-1320 Page 4
threatening injury under U.S.S.G. § 2A2.2(b)(3)(C). Under the Guidelines, permanent
injury includes “obvious disfigurement” like permanent scarring. See U.S.S.G. § 1B1.1,
cmt.1(J); United States v. Webster, 500 F.3d 606, 608 (7th Cir. 2007). As counsel notes,
testimony conclusively established that Martinez was scarred, a sufficient basis for
applying the enhancement.
Counsel also rightly rejects arguing that the above-guidelines sentence of
108 months is substantively unreasonable. We would uphold an above-guidelines
sentence if the district court sufficiently justifies it based on the sentencing factors in
18 U.S.C. § 3553(a). See United States v. Cook, 108 F.4th 574, 585 (7th Cir. 2024). Here, the
court emphasized the seriousness of the offense (“You certainly don’t need a medical
degree to look at those CT scans and just be mortified. … It is the miracle of the human
body that the human body is able to recover from something like that.”); Breal’s
relentless and violent criminal history (“an unbroken chain of criminal conduct,
including violence, all the way up until this incredibly horrific offense and conviction in
2012”) that was otherwise unaccounted for in the guidelines calculation; and the need to
protect the public (here correctional officers and fellow inmates).
In his Rule 51(b) response, Breal proposes arguing that the court should not have
considered his assault of the state correctional officer because it occurred in a state jail,
after his conviction. But Breal waived this challenge at sentencing when his counsel told
the court that Breal objected not to consideration of the assault but only to the weight it
should be given. See United States v. Flores, 929 F.3d 443, 448 (7th Cir. 2019).
Breal also asserts that his attorneys dissuaded him from testifying, prevented
him from arguing that he acted in self-defense, and were incommunicative and
inattentive to his case. But a claim that counsel was ineffective is best saved for
collateral review, at which stage the record can be more fully developed. See United
States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020).
Lastly, Breal moves for the appointment of new counsel. Because there are no
nonfrivolous issues to raise on appeal, we deny the motion.
For these reasons, we GRANT the motion to withdraw, DENY the motion for
new counsel, and DISMISS the appeal.

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