United States of America v. Demario Dunae

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2023
Decided March 29, 2023
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-2266
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEMARIO DUNAE,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-CR-00311(1)
Jorge L. Alonso,
Judge.
O R D E R
Demario Dunae appeals the 18-month prison sentence imposed following the
revocation of his supervised release. His attorney, however, asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We grant
the motion and dismiss the appeal.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2266 Page 2
Dunae pleaded guilty in July 2018 to manufacturing counterfeit United States
currency, 18 U.S.C. § 471, and was sentenced to 36 months’ imprisonment and
two years’ supervised release. In May 2020, about three weeks after his release from
prison, Dunae was arrested for driving with a suspended license. An inventory search
of his car yielded fraudulent United States currency and approximately 206 grams of
heroin. Multiple state charges followed; Dunae later pleaded guilty to the Illinois
offense of possession with intent to distribute heroin, 720 ILCS 570/401, and received a
ten-year prison sentence.
In the meantime, Dunae’s federal probation officer had filed a Special Report
about the state charges and recommended that the district judge revoke his supervised
release. Because of logistical challenges posed by the COVID-19 pandemic, Dunae did
not appear for a revocation hearing until July 2022. There, Dunae admitted to
committing two Grade A violations of his mandatory conditions of supervised release:
“you shall not commit another Federal, State, or local crime,” and “you shall not
unlawfully possess a controlled substance.” The judge accepted his waiver of a
contested hearing and revoked his supervised release, as was required given the nature
of the violations. See U.S.S.G. § 7B1.3(a)(1). The judge noted that the applicable range
under the policy statements in Chapter Seven of the Sentencing Guidelines, 33 to
41 months, was supplanted by the statutory maximum of 24 months. The judge then
sentenced Dunae to 18 months’ reimprisonment, consecutive to the ten-year state
sentence. This appeal followed.
Although Dunae does not have an unqualified constitutional right to counsel in
revocation proceedings, including any appeal, see Gagnon v. Scarpelli, 411 U.S. 778,
789–91 (1973), we apply the Anders safeguards when appointed counsel moves to
withdraw, so that all potential issues receive consideration. See United States v. Brown,
823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief explains the nature of the case and
addresses the potential issues that an appeal like this might be expected to involve.
Because the analysis in the brief appears thorough, we limit our review to the subjects
that counsel discusses, plus the additional issues that Dunae raises in his response to
counsel’s motion. See C IR . R. 51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel considers only issues related to the sentence. Before omitting discussion
of a challenge to the revocation, however, counsel is obligated to consult with his client
and state whether the defendant wishes to withdraw the admissions on which the
mandatory revocation was based. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.

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No. 22-2266 Page 3
2012); United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010). Dunae’s Rule 51(b)
response suggests the required consultation might not have happened here.
Nevertheless, it appears from Dunae’s response that he wishes to raise issues
only “within the sentence.” And even if he wanted to appeal the revocation, such a
challenge would be frivolous. See Konczak, 683 F.3d at 349. He did not seek to withdraw
his admissions in the district court, so we would review for plain error only. United
States v. Nelson, 931 F.3d 588, 590–92 (7th Cir. 2019). The transcript of the revocation
hearing shows that Dunae understood the alleged violations and possible penalties and
was satisfied with his legal representation before he voluntarily waived his right to
contest the allegations and admitted that he violated the conditions of his release.
See FED. R. C RIM. P. 32.1(b)(2); United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014).
Counsel considers whether Dunae could challenge the judge’s power to revoke
his supervised release because the revocation hearing occurred more than two years
after his two-year term of supervision began. Counsel concludes that there is no
appellate issue here because, long before the hearing, the judge issued a warrant based
on Dunae’s violations that extended the revocation power. See 18 U.S.C. § 3583(i).
Challenging the judge’s revocation power would indeed be frivolous, but for a different
reason; Dunae’s term of supervised release was tolled when he was arrested and held in
state custody pending trial, so no extension “beyond the expiration of the term” was
needed. See id.; 18 U.S.C. § 3624(e); Mont v. United States, 139 S. Ct. 1826, 1832 (2019).
Counsel next considers whether Dunae could plausibly challenge his term of
reimprisonment and rightly rejects any argument as frivolous. First, he spots no
procedural issues in the application of the Guidelines’ policy statements. Dunae’s
controlled-substance offense was a Grade A violation of his supervised-release
conditions. See U.S.S.G. § 7B1.1(a)(1). Based on that, Dunae’s original criminal history
category of VI, and the underlying conviction for a Class C felony (manufacturing
counterfeit currency), the judge noted that the range of reimprisonment was 33 to
41 months. See id. § 7B1.4(a). But under 18 U.S.C. § 3583(e)(3), Duane could not be
sentenced to more than 24 months—the duration of the term of supervised release
being revoked. Dunae affirmatively agreed with these calculations at his hearing, and
his 18-month prison sentence is consistent with the statute and policy statements.
We also agree with counsel that challenging Dunae’s sentence as substantively
unreasonable would be frivolous. We would presume the prison sentence to be
reasonable because it is below the policy-statement range. See United States v. Dewitt,

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No. 22-2266 Page 4
943 F.3d 1092, 1098 (7th Cir. 2019). Nothing in the record could rebut that presumption.
The judge appropriately considered the “serious” nature of Dunae’s offense, as well as
the mitigating effect of the “very serious sentence of ten years” already imposed by the
state court. See 18 U.S.C. § 3553(a). And Dunae cannot argue that it was an abuse of
discretion for the judge to impose the federal sentence consecutive to his undischarged
state sentence, because in this context, the two terms are presumed to run consecutively.
See 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f).
For his part, Dunae would like to argue that counsel rendered ineffective
assistance in violation of the Sixth Amendment. But it would not behoove Dunae to
raise this argument in a direct appeal. Such a claim is best reserved for collateral review,
when a more complete record can be developed. See Massaro v. United States, 538 U.S.
500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020) (“By raising an
ineffective-assistance claim prematurely, on direct appeal, a defendant can easily throw
away any chance he has at success because the claim may not be presented a second
time on collateral attack under 28 U.S.C. § 2255.… [W]e have repeatedly warned
defendants against bringing ineffective-assistance claims on direct appeal.”).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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