United States of America v. Najee C. Moore

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 2, 2024
Decided December 2, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 23-3240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NAJEE C. MOORE,
Defendant-Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 13-CR-84
Lynn Adelman,
Judge.
O R D E R
The district court adjudicated Najee Moore guilty of five violations of his
supervised release conditions, revoked his supervised release, and sentenced him to 15
months in prison and another year of supervised release. Moore appeals, but his
appointed counsel asserts that the appeal is frivolous and moves to withdraw under the
procedures of Anders v. California, 386 U.S. 738, 744 (1967). A defendant has a
presumptive right to counsel when, as here, he plausibly contests the violations on
which revocation of his supervised release is based, and so we apply the Anders
framework. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Counsel’s brief explains the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 5 --

No. 23-3240 Page 2
nature of the case and addresses the issues that a case of this kind might be expected to
involve. Moore has responded to counsel’s motion with arguments he wishes to raise
on appeal. See C IR . R. 51(b). Because counsel’s brief appears thorough, we limit our
review to the subjects that counsel and Moore discuss. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
Moore was convicted of four counts of conspiracy to commit sex trafficking,
18 U.S.C. §§ 371, 1591(a)(1), (b)(1), 1952(a)(3), and started his three-year term of
supervised release in 2021 after completing a ten-year prison sentence. He soon violated
the conditions of his release: He strangled his girlfriend at least twice and pointed a gun
at her face, failed two drug tests, skipped several others, and was cited by Wisconsin
police for possession of drugs and drug paraphernalia. Based on these violations, the
probation office obtained a warrant in June 2023 requiring Moore to appear for
revocation proceedings.
Moore was eventually charged with five violations. He denied his guilt, and so
the district court held a contested revocation hearing. The government called two
witnesses—Moore’s girlfriend and his probation officer—to testify about Moore’s
conduct. The government also introduced text messages between Moore and his
girlfriend; in one, she stated that pointing a gun at her face was “the last straw.” On
cross-examination, the defense attacked the credibility of Moore’s girlfriend by
highlighting how long it took her to report the violence against her, the potential
inconsistencies in the details of her story, and her request to drop a restraining order
she had obtained against Moore. Moore testified in his own defense; he admitted to
receiving a drug citation and to violating drug-testing procedures, but he denied the
violence against his girlfriend and the firearm possession. The court found that his
girlfriend’s testimony about the abuse and the firearm was “credible” and corroborated
by the text messages. It concluded that the government proved each of the charged
violations by a preponderance of the evidence and revoked Moore’s supervised release.
The probation officer prepared a sentencing recommendation stating that
Moore’s statutory maximum revocation sentence was two years’ imprisonment and
three years of supervised release because his underlying sex trafficking offense was a
Class D felony. See 18 U.S.C. §§ 371, 3559(a)(4), 3583(b)(2), (e)(3). Separately, the court
determined that strangulation in Wisconsin, WIS . STAT . § 940.235(1) (2024), is a violent
felony and thus a grade A offense under the Sentencing Guidelines. See U.S.S.G. § 7B1.1;
United States v. Mancillas, 880 F.3d 297, 303–04 (7th Cir. 2018) (concluding near-identical
Indiana strangulation statute is a violent felony). Moore’s grade A offense, coupled with
his criminal history category of I, yielded a Guidelines range of 12 to 18 months in

-- 2 of 5 --

No. 23-3240 Page 3
prison. U.S.S.G. § 7B1.4(a). The government filed a sentencing memorandum asking for
an above-range sentence of 24 months.
Moore objected to the Guidelines range because the revocation petition originally
characterized strangulation as a grade C violation. He argued that he might have
changed his defense strategy if he had realized it was the most serious offense—not
possessing the firearm, a grade B violation. But at the sentencing hearing, the court
concluded that Moore was not prejudiced by the recharacterization because the hearing
was about all the violations, and Moore could not have done anything differently to
undermine the testimony about the strangulation.
After hearing both parties’ arguments about the appropriate sentence, the court
imposed concurrent 15-month terms of imprisonment and 12-month terms of
supervised release for each violation (a within-Guidelines term for a grade A violation
but exceeding the Guidelines range for a grade B violation, U.S.S.G. § 7B1.4(a)). The
court explained that 15 months was necessary to reflect the seriousness of Moore’s
firearm possession and the violence against his girlfriend and to protect the public from
his “escalating pattern of violence” against women. Further, Moore had struggled to
comply with basic supervision requirements. Recognizing Moore’s objection to the
violation grade and Guidelines range, the court added that it would impose the same
sentence under 18 U.S.C. § 3553(a) “regardless of the guidelines,” meaning that “even if
the violations were grade C, I would impose the same sentence to account for the
repeated instances of violence and the other violations.”
In the Anders brief, counsel confirms that Moore wishes to challenge the decision
to revoke his supervision. See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
Thus, counsel first considers whether Moore could challenge the factual findings
underlying the district court’s decision. We review factual findings for clear error, and
we “virtually never” find clear error when findings turn on witness credibility. United
States v. Olson, 41 F.4th 792, 802 (7th Cir. 2022) (quoting United States v. Biggs, 491 F.3d
616, 621 (7th Cir. 2007)). Here, Moore’s girlfriend provided detailed and extensive
testimony about his violence and gun possession. Although Moore’s attorney
questioned her truthfulness and her motives for testifying, the district court was
unpersuaded. Thus, counsel is correct that a challenge to the credibility finding would
be frivolous, and so there was ample evidence from which the court could conclude that
Moore violated the relevant condition.
In his response, Moore argues that he could also challenge the sufficiency of the
evidence that he possessed drugs, but this argument, too, would be frivolous.

-- 3 of 5 --

No. 23-3240 Page 4
Supervised release violations must be proved only by a preponderance of the evidence,
18 U.S.C. § 3583(e)(3), and we reverse only for an abuse of discretion. United States v.
Perez, 99 F.4th 972, 976 (7th Cir. 2024). Moore argues that although he admitted to
receiving a local citation for drug possession, he did not admit the citation’s substantive
accuracy and was actively challenging it in court. But when determining whether to
revoke supervised release, the court stated that Moore had essentially admitted to the
possession violation and Moore’s attorney did not object. An admission of a supervised
release violation proves the violation by a preponderance of the evidence. See United
States v. Flagg, 481 F.3d 946, 949–50 (7th Cir. 2007). Moreover, Moore was not just cited
for drug possession; he was convicted. That also satisfies the burden of establishing a
violation of this condition. United States v. Huusko, 275 F.3d 600, 602 (7th Cir. 2001).
Moore also proposes arguing that the revocation was improper because the
district court admitted irrelevant and prejudicial evidence about him beating his
girlfriend’s dog. But the Rules of Evidence do not apply in revocation proceedings,
United States v. Ford, 798 F.3d 655, 660 (7th Cir. 2015), and there was no jury to be
prejudiced by the evidence, see United States v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000)
(presumption against prejudice from improper evidence at bench trials). Therefore,
even if the evidence was not relevant to the charged violations, it would be frivolous to
argue that its admission requires overturning the revocation decision.
Next, counsel correctly concludes that any other procedural challenge to the
revocation proceedings would be frivolous. Moore had an opportunity to appear,
present evidence, and question adverse witnesses. FED. R. CRIM. P. 32.1(b)(2)(C).
Further, he was represented by counsel, and he had an opportunity to present
information in mitigation and make a statement at sentencing. FED. R. C RIM. P.
32.1(b)(2)(D), (E). Although Moore alleges that he was never provided with a copy of
the written notice of the allegations against him, see FED. R. C RIM. P. 32.1(b)(2)(A), this
was never raised in the district court. And it would be frivolous to raise this issue under
plain-error review because Moore had access to the revocation petition through his
counsel and the public docket, and “[w]e are given no reason why [he] would not have
been able to retrieve that [petition].” See United States v. Lee, 795 F.3d 682, 687 (7th Cir.
2015) (access to the document containing the charges precludes plain error).
Counsel next considers whether Moore could mount any nonfrivolous
procedural challenge to his sentence and correctly concludes that he could not. The
district court determined that committing the Wisconsin crime of strangulation and
suffocation is a grade A violation. See U.S.S.G. § 7B1.1(a)(1)(A)(ii); W IS . STAT .
§ 940.235(1). Combined with his original criminal history category of I,

-- 4 of 5 --

No. 23-3240 Page 5
see U.S.S.G. § 7B1.4 cmt. n.1, a grade A violation results in a reimprisonment range of
12 to 18 months, see id. § 7B1.4(a). And because the underlying crime of sex trafficking is
a class D felony, his reimprisonment range was statutorily capped at two years.
See 18 U.S.C. § 3583(e)(3). Thus, his 15-month reimprisonment term was within the
statutory maximum. And even if the most serious violation should have been grade B,
the court made an inoculating statement that renders any error harmless. See United
States v. Caraway, 74 F.4th 466, 468–69 (7th Cir. 2023). The court gave specific attention to
the contested Guidelines issue—whether the strangulation violation was grade A—and
explained why the sentence would remain the same if it had resolved that issue
differently. See id.
Counsel also correctly rejects any argument that Moore’s within-Guidelines
prison sentence is “plainly unreasonable.” United States v. Childs, 39 F.4th 941, 944–45
(7th Cir. 2022). The district court considered the Guidelines, the maximum sentence
permitted by statute, and the sentencing factors under § 3553(a), including Moore’s
criminal history and the need to deter criminal conduct, promote respect for the law,
and protect the public. The court explained that although Moore was charged with only
one violation of his supervised release for violent conduct, he had been violent toward
his girlfriend more than once—continuing a broader trend of violence. And his
possession and use of a firearm during one encounter further concerned the court.
Moore cannot make a nonfrivolous argument that the sentence is inconsistent with the
§ 3553(a) factors. And the court’s explanation also justifies the one-year term of
additional supervision. United States v. Allgire, 946 F.3d 365, 367–68 (7th Cir. 2019).
Counsel lastly informs us that Moore expressly waived all objections to the
proposed supervised release conditions; thus, any challenge would be frivolous.
Counsel is correct—waiver precludes appellate review. See United States v. Flores,
929 F.3d 443, 449–50 (7th Cir. 2019). Moore replies that his attorney’s waiver was against
his wishes and that certain conditions are overbroad and unreasonable. To the extent
that this is an argument about counsel’s performance, a claim of ineffective assistance of
counsel is better reserved for collateral review with a fully developed record. See United
States v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020) (citing Massaro v. United States,
538 U.S. 500, 504–05 (2003)). In any case, conditions can be modified “at any time”
before the term expires, so Moore still has recourse. See 18 U.S.C. § 3583(e)(2); United
States v. Lee, 950 F.3d 439, 450 (7th Cir. 2020).
We GRANT counsel's motion to withdraw and DISMISS the appeal.

-- 5 of 5 --