United States of America v. Felton Nelson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 10, 2024
Decided December 11, 2024
Before
DIANE S. SYKES, Chief Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1568
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELTON NELSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 3:09-CR-30154-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Felton Nelson 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). 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,
788–90 (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
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1568 Page 2
issues that an appeal of this kind would be expected to involve. Because counsel’s brief
appears thorough, we limit our review to the subjects discussed in the brief and in
Nelson’s response under Circuit Rule 51(b).† See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
In 2023, Nelson violated the conditions of his supervised release after serving
time in prison for possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). He admitted
to three instances of providing false statements and one instance of resisting or
obstructing a peace officer (thereby committing other federal, state, or local crimes);
nine instances of unlawfully possessing marijuana and one instance of unlawfully
possessing amphetamine and methamphetamine; ten instances of failing to submit a
monthly written report to his probation officer and seven instances of doing so
belatedly; three instances of failing to follow a probation officer’s instructions; one
instance of failing to timely notify a probation officer after being arrested; five instances
of failing to participate in counseling sessions as part of his substance abuse program;
two instances of consuming alcohol; three instances of failing to report for mental health
treatment; and one instance of failing to participate in the location monitoring program.
Based on the admissions, the district judge revoked Nelson’s supervised release and
sentenced him to 36 months in prison with 24 months of supervised release to follow.
Counsel represents that he had the required consultation with Nelson and
confirmed that he does not wish to challenge the basis of the revocation. Counsel thus
properly refrains from discussing whether Nelson’s admissions were knowing and
voluntary. See United States v. Wheaton, 610 F.3d 389, 390 (7th Cir. 2010).
Counsel next considers whether Nelson could raise any non-frivolous procedural
challenge to the sentence and rightly concludes that he could not. The judge correctly
determined that Nelson’s most serious violations—providing false statements and
unlawfully possessing marijuana, methamphetamine, and amphetamine—were
Grade B violations under the Sentencing Guidelines, see U.S.S.G. § 7B1.1(a)(2), which
mandates revocation of supervised release, see § 7B1.3(a)(1). For a defendant with a
Grade B violation and criminal history category of VI, the guidelines range is 21 to 27
months of reimprisonment. See § 7B1.4(a). Because Nelson’s original offense was a
Class A felony, see 18 U.S.C. §§ 924(e)(1), 3559(a)(1), the statutory maximum term of
† We received Nelson’s response to counsel’s Anders brief on October 3, 2024,
after the deadline of September 16. We construe the filing as a motion for leave to file
the response instanter, grant the motion, and consider the substance of the filing.

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No. 24-1568 Page 3
imprisonment for his revocation was five years, see id. § 3583(e)(3). Nelson’s sentence
does not exceed this maximum because his cumulative prison and supervision
sentences do not exceed the maximum term of supervised release allowed under his
original offense, which was five years. See id. § 3583(h).
In his Rule 51(b) response, Nelson proposes arguing that the judge procedurally
erred by not crediting him for the 23 months he spent on supervised release before it
was revoked. But that argument would be frivolous because the judge properly
sentenced Nelson “without credit for time previously served on postrelease
supervision.” 18 U.S.C. § 3583(e)(3).
Counsel next evaluates whether Nelson could advance a non-frivolous argument
regarding the substantive unreasonableness of his sentence. We review a revocation
sentence under a “highly deferential” standard, overturning the sentence only if it was
“plainly unreasonable.” United States v. Childs, 39 F.4th 941, 944–45 (7th Cir. 2022). We
agree with counsel that the judge adequately considered the relevant sentencing factors
in § 3553(a). See 18 U.S.C. § 3583(e). The judge assessed Nelsons’s “defiance of [his]
obligation to comply with supervised release”; his extensive criminal history; the need
to protect the public; the fact that he effectively “absconded”; and Nelson’s failure to
follow through with court-ordered mental health and substance abuse treatment. The
district judge also noted that Nelson had received a below-guidelines sentence for the
offense of the conviction and therefore warranted an “upward departure” for the
revocation sentence. See U.S.S.G. § 7B1.4 cmt. n.4. Based on this explanation, the judge
did not abuse her discretion in imposing an above-guidelines sentence.
Nelson next proposes arguing that his sentence was generally unfair because the
judge imposed a longer prison term than the government had requested and because
the judge considered past convictions for which Nelson already served time. But a
party’s sentencing recommendation does not bind a district judge. United States v.
Dawson, 980 F.3d 1156, 1166 (7th Cir. 2020). And the judge not only was allowed to
consider Nelson’s background but was required to do so, see 18 U.S.C. §§ 3583(e),
3553(a)(1), and she appropriately identified a trend of “violent and problematic and
troubling offenses.”
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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