United States of America v. Mario L. Gordon

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 13, 2024
Decided April 3, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-3015
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO L. GORDON,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 4:02-CR-40004-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Mario Gordon 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). We grant counsel’s
motion and dismiss Gordon’s appeal.
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.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-3015 Page 2
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, and Gordon has responded to counsel’s motion. See C IR . R. 51(b). Because
counsel’s analysis appears thorough, we limit our review to subjects that counsel and
Gordon discuss. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
In 2023, after serving time in prison for convictions of conspiracy to distribute
and possess with intent to distribute crack cocaine, 21 U.S.C. § 846, and possession with
intent to distribute crack cocaine, id. § 841, Gordon violated the conditions of his
supervised release. The probation officer advised the district court that Gordon had
(1) assaulted a peace officer or judge and (2) unlawfully possessed marijuana. Gordon
pleaded guilty to the violations, and the court sentenced him to prison terms of 24 and
27 months—to run concurrently—as well as concurrent, 36-month terms of supervised
release.
After consulting with Gordon, counsel represents that Gordon does not wish to
challenge the basis for revocation. Counsel thus properly refrains from discussing
whether Gordon’s admissions were knowing and voluntary.
Counsel considers whether Gordon could raise any non-frivolous challenge to
the calculation of the sentence imposed at his revocation hearing. Our review of a
sentence resulting from revocation proceedings is “highly deferential,” United States v.
Njos, 68 F.4th 1060, 1064 (7th Cir. 2023), and we agree with counsel that Gordon’s
sentence was not procedurally unreasonable. The district court correctly determined
that Gordon’s offenses—assault on a police officer and unlawful possession of
marijuana—were Grade B violations, see U.S.S.G. § 7B1.1(a)(2); that Grade B violations
mandate revocation of supervised release, see id. § 7B1.3(a)(1); and that he had a
criminal history category of VI—yielding a policy-statement range of 21 to 27 months in
prison, see id. § 7B1.4.
In his Rule 51(b) response, Gordon contends that his criminal history category
should have been V. But Gordon's criminal history category was VI when he was
originally sentenced, see United States v. Gordon, 189 F. App’x 544 (7th Cir. 2006), so it
remains VI in revocation proceedings. See U.S.S.G. § 7B1.4 cmt. n.1.
Next, counsel evaluates whether Gordon could advance a non-frivolous
argument regarding the substantive reasonableness of his sentence. We presume that a
within-guidelines sentence like Gordon’s is reasonable. United States v. Major, 33 F.4th
370, 384 (7th Cir. 2022). And the district court adequately considered the § 3553(a)

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No. 23-3015 Page 3
factors, emphasizing the seriousness of the offense and need for deterrence (Gordon’s
violation of supervision, in part by assaulting a police officer, within a week of his
release from prison), the need to protect the public (Gordon’s history of similar
offenses), Gordon’s personal characteristics (mental health challenges), and Gordon’s
need for medical care (mental health treatment as a part of his eventual supervised
release).
Finally, counsel correctly concludes that a challenge based on ineffective
assistance of counsel is best reserved for collateral review, where an evidentiary
foundation can be developed. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. McClinton, 23 F.4th 732, 737 (7th Cir. 2022).
We therefore GRANT counsel’s motion and DISMISS the appeal.

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