United States of America v. Micky Gibb

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 2, 2024
Decided May 23, 2024
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2930
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICKY GIBB,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 3:13-CR-30170-DWD
David W. Dugan,
Judge.
O R D E R
Micky Gibb appeals the 12-month prison sentence imposed for the revocation of
his term of supervised release. His attorney 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.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-2930 Page 2
A defendant who appeals a revocation order does not have an unqualified
constitutional right to counsel, so the Anders safeguards need not govern our review.
Gagnon v. Scarpelli, 411 U.S. 778, 789–90 (1973). Even so, our practice is to apply them.
See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief explains the
nature of the case and addresses issues that an appeal of this kind might be expected to
involve. Gibb did not respond to counsel’s motion. See C IR . R. 51(b). Because counsel’s
analysis appears thorough, we limit our review to subjects that she discusses. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Soon after his release from a prison sentence for various drug and firearm
offenses, see 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 1951, 924(c), 922(g)(1), Gibb violated
the terms of his supervised release. His probation officer petitioned to revoke
supervised release because Gibb had been arrested for disorderly conduct, admitted to
using marijuana, failed to participate in a mental-health program, consumed alcohol
while in a program for substance abuse, and failed to complete his monthly report
forms. At the revocation hearing, Gibb admitted to committing these violations. The
judge then sentenced him to a 12-month term of imprisonment—the lowest term
recommended by the relevant policy statement under the Guidelines—and four years of
supervised release.
Counsel first considers whether Gibb could challenge his admissions and
correctly concludes that he cannot. Gibb did not seek to withdraw his admissions in the
district court, so our review would be for plain error. United States v. Nelson, 931 F.3d
588, 590–91 (7th Cir. 2019). The judge confirmed with Gibb that he understood the
alleged violations and possible penalties and had reviewed them with his attorney.
Gibb then freely admitted that the government could prove by a preponderance of the
evidence that he had committed the alleged violations in question. See FED. R. C RIM. P.
32.1; Nelson, 931 F.3d at 591.
Counsel next explores, and properly rejects, challenging the revocation of Gibb’s
supervised release. As the judge correctly concluded, revocation was mandatory
because Gibb admitted to possessing marijuana, a controlled substance. See 18 U.S.C.
§ 3583(g)(1); United States v. Patlan, 31 F.4th 552, 557 (7th Cir. 2022).
Counsel also considers whether Gibb could challenge his prison sentence on
procedural grounds but rightly concludes that doing so would be frivolous. The judge
properly calculated a policy-statement range of 12 to 18 months in prison (based on
Gibb’s controlled substance possession amounting to a Grade B violation and his

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No. 23-2930 Page 3
criminal history category of IV). See U.S.S.G. § 7B1.4(a). Gibb’s 12-month sentence fell
within that range and did not exceed the statutory maximum of 60 months. See 18
U.S.C. §§ 3559(a)(1), 3583(e)(3). The judge also acknowledged Gibb’s arguments in
mitigation but appropriately determined that his desire to be with his kids and get help
outside of prison was outweighed by his lack of participation in his mental-health
treatment program and his noncompliance in taking prescribed medications.
Gibb also could not, as counsel rightly notes, advance a non-frivolous procedural
challenge to his new term of supervised release. His additional term of supervised
release was correctly calculated at 48 months (60 months minus the 12-month term of
imprisonment upon revocation). See 18 U.S.C. § 3583(h); U.S.S.G. § 7B1.3(g)(2).
Finally, counsel correctly concludes that it would be frivolous to challenge the
substantive reasonableness of the sentence. Our review of a sentence after the
revocation of supervised release is “highly deferential,” and we presume that a sentence
within the policy-statement range like Gibb’s is reasonable. United States v. Yankey,
56 F.4th 554, 560 (7th Cir. 2023). Nothing in the record rebuts that presumption of
reasonableness. Id. The judge additionally considered the sentencing factors in
accordance with 18 U.S.C. § 3553(a), noting, for example, that Gibb’s substance abuse
called for just punishment, adequate deterrence, and needed medical care.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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