United States of America v. Theodore Thurman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 8, 2021
Decided November 9, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3356
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THEODORE THURMAN,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 20-cr-50-wmc
William M. Conley,
Judge.
O R D E R
Theodore Thurman pleaded guilty to one count of escape from custody after he
absconded from a halfway house where he was serving a federal sentence. See 18 U.S.C.
§§ 751(a), 4082(a). The district court sentenced him to a prison term of 24 months and no
supervised release. Thurman appeals, but his appointed counsel asserts that the appeal
is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).
Counsel’s brief explains the nature of the case and addresses potential issues that an
appeal of this kind would be expected to involve. Because her analysis appears
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-3356 Page 2
thorough, and Thurman has not responded, see C IR . R. 51(b), we limit our review to the
subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Thurman was sentenced in the Northern District of Illinois to 33 months’
imprisonment and two years’ supervised release for unlawfully possessing a firearm
and distributing marijuana. When he was serving part of that sentence at a halfway
house in Janesville, Wisconsin, he left without permission one night and did not turn up
for about four months. He would later explain that his infant daughter’s mother, who
lived in Illinois with their daughter, had told him that she would kill herself. Fearing for
his daughter’s safety, Thurman fled to Illinois to place her in the care of his mother. But
he then traveled from Illinois to Arizona, where he later caught the attention of law
enforcement for possessing a firearm while a passenger in a stolen car containing drugs
and stolen identification and credit cards. The driver told local police that Thurman
acted as protection while she sold drugs and that she gave Thurman the weapon. The
authorities released Thurman without filing charges, and Thurman returned to Illinois,
where he was later arrested and detained until a grand jury in the Western District of
Wisconsin indicted him.
At a hearing held by videoconference, Thurman pleaded guilty to a single-count
indictment charging him with escape from federal custody under 18 U.S.C. §§ 751(a)
and 4082(a). The district court proceeded immediately to sentencing. Thurman’s
presentence investigation report set a range of 18 to 24 months’ imprisonment under the
Sentencing Guidelines, based on a criminal history category of IV and a total offense
level of 11. Thurman did not object to those calculations. After hearing argument, the
court sentenced Thurman to 24 months in prison without additional supervised release,
explaining that the sentence was necessary to hold him accountable, provide him the
opportunity to participate in rehabilitative programs, and protect the community.
Counsel informs us that she consulted with Thurman and confirms that he does
not wish to withdraw his guilty plea, so counsel properly omits discussion of any
arguments related to the plea’s validity. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
With respect to the sentence, counsel first considers whether there might be a
nonfrivolous challenge that the hearing via videoconference, as authorized by the
CARES Act, Pub. L. No. 116-136, § 15002(b)(2)(A), 134 Stat. 281, 528–29, violated Rule 43
of the Federal Rules of Criminal Procedure. But she explains that Thurman does not
wish to raise the issue on appeal because he does not want to be sentenced in person: it
would jeopardize his placement in prison programs, which could delay his release.

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No. 20-3356 Page 3
Lawyers need not raise issues on appeal that would not be in their client’s interest.
United States v. Caviedes-Zuniga, 948 F.3d 854, 855 (7th Cir. 2020).
Counsel next considers whether Thurman could challenge the district court’s
decision not to apply a downward adjustment to his offense level under the Sentencing
Guidelines. Counsel believes that Thurman waived the issue by stating that he had no
objections to the presentence report. Even if it were only forfeited, however, any
challenge to the offense level would be frivolous under plain-error review. Under
U.S.S.G. § 2P1.1(b)(2), the offense level can be decreased if the defendant returned
voluntarily within 96 hours of escape, which Thurman did not do. Second, if the
escaped-from facility is a halfway house, an offense-level decrease can be applied,
provided the defendant did not commit a felony while out. Id. § 2P1.1(b)(3). Though
Thurman was never charged, the court found it more likely than not that he committed
a felony during his escape. See United States v. Holton, 873 F.3d 589, 591–92 (7th Cir.
2017) (Judges may “consider at sentencing criminal conduct … even if the defendant
was not convicted … ‘so long as that conduct has been proved by a preponderance of
the evidence.’” (quoting United States v. Watts, 519 U.S. 148, 157 (1997))). The PSR
detailed Thurman’s conduct while in Arizona, which included aiding in the distribution
of marijuana and possessing a firearm.
Finally, counsel rightly concludes that challenging the substantive
reasonableness of Thurman’s sentence would be pointless. The within-guidelines prison
term of 24 months is presumptively reasonable. See United States v. Clay, 943 F.3d 805,
809 (7th Cir. 2019). The presumption would hold here because the district court
explained why the sentence was warranted under the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Lockwood, 840 F.3d 896, 903 (7th Cir. 2016). It noted that
Thurman offered some compelling mitigation arguments: he had a supportive family,
had struggled with substance abuse since his father passed away, and had originally
left the halfway house because he feared for his daughter’s safety. But the court found
that Thurman had not seriously confronted his substance abuse. Further, ensuring his
daughter’s welfare took a few days, but Thurman remained on the run for almost four
months. And during that time, he exhibited the same criminal behavior that landed him
in prison in the first place, demonstrating that he remained a risk to the community.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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