United States of America v. Marlon P. Bush

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 24, 2020
Decided February 24, 2020
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19-2541
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARLON P. BUSH,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:18-CR-30077-SMY-1
Staci M. Yandle,
Judge.
O R D E R
While serving as the director of the public library in East Saint Louis, Illinois,
Marlon Bush stole over $48,000 of the library’s funds by making personal purchases on
its credit cards and paying himself more than his approved salary. He pleaded guilty to
one count of wire fraud, 18 U.S.C. § 1343, and one count of embezzlement, 18 U.S.C.
§ 666(a)(1)(A). The district court assessed Bush a within-guideline sentence of
12 months’ imprisonment and two years of supervised release; the first six months of
the latter would be on home detention. The court also ordered that Bush pay restitution
of $48,102.86. Bush appealed, but his appointed counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Bush did
not respond to counsel’s brief, see C IR . R. 51(b), which explains the nature of the case
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19-2541 Page 2
and addresses the potential issues that an appeal of this kind might be expected to
involve. Because counsel’s brief appears thorough, we limit our review to the subjects
that he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel represents that he consulted with Bush and confirmed that Bush does
not wish to withdraw his guilty plea, so he properly omits discussion of arguments
related to the validity of his plea. 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).
Counsel first considers whether Bush could attack the calculation of his guideline
sentencing range but properly concludes that doing so would be frivolous. By the time
of the sentencing hearing, Bush had withdrawn his objections to the Presentence
Investigation Report, and at the hearing, he agreed with the district court’s calculations
based on the report. See United States v. Fuentes, 858 F.3d 1119, 1121 (7th Cir. 2017). And,
like counsel, we cannot discern any nonfrivolous challenge to the increase in his base
offense level for the amount of the library’s loss, U.S.S.G. § 2B1.1(b)(1)(D), or the
enhancement for abusing a position of public trust, id. § 3B1.3.
Next, counsel discusses whether Bush could argue that imposing home detention
as a condition of supervised release was erroneous, but he correctly concludes that the
argument would be frivolous. The PSR did not recommend home confinement, but
Bush did not object when it was discussed at sentencing—indeed, he suggested
splitting his sentence (albeit a shorter one) between imprisonment and home
detention—so at most we would review for plain error. See United States v. Hunt,
930 F.3d 921, 924 (7th Cir. 2019). As counsel discusses, home detention is a discretionary
condition under 18 U.S.C. § 3563(b)(19) that is permitted “only as an alternative to
incarceration,” which is how it was imposed here. Home detention was also proper
under U.S.S.G. § 5C1.1(d) because Bush’s sentencing range of 12 to 18 months is among
the ranges for which the condition is available, and the duration did not exceed the
maximum allowed.
Counsel also considers challenging the other conditions of Bush’s supervised
release, but he rightly concludes that Bush waived any such arguments. Before
sentencing, Bush received the PSR, which set forth the recommended conditions of
supervised release, including community service. Bush did not object, and he then
affirmatively agreed to those conditions at the hearing, so he cannot challenge them on
appeal. See United States v. Flores, 929 F.3d 443, 447–48 (7th Cir. 2019).

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No. 19-2541 Page 3
Counsel next discusses whether Bush could argue that the district court failed to
explain his sentence or address his arguments in mitigation, see Gall v. United States, 552
U.S. 38, 51 (2007), but he is right that Bush waived those arguments as well. At the end
of the sentencing hearing, the judge asked Bush whether he wanted any further
explanation of the statutory factors and whether the judge had adequately addressed
Bush’s arguments in mitigation. Bush responded that the sentence was adequately
explained and the arguments in mitigation adequately addressed. See United States v.
Orozco-Sanchez, 814 F.3d 844, 849 (7th Cir. 2016).
Finally, counsel correctly recognizes that any challenge to the substantive
reasonableness of Bush’s sentence would also be futile. Bush’s 12-month prison
sentence is at the bottom of the guideline range (home detention is not imprisonment,
United States v. Elkins, 176 F.3d 1016, 1020–21 (7th Cir. 1999)), so we would presume it to
be reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). That
presumption is rebutted if the sentence is unreasonable “when measured against the
factors set forth in § 3553(a).” Id. Here, the court reasoned that 12 months in prison was
sufficient to “send a clear message that public corruption will not be tolerated,” while
also accounting for “truly mitigating factors” like Bush’s insignificant criminal history
and that he “appears to pose no risk of violence.” And, the district court explained,
adding home detention and supervised release reflects the seriousness of Bush’s
offense, which involved taking resources from “an impoverished community” that is
“vulnerable to corruption and routinely taken advantage of by [its] … leaders.” On that
record, it would be frivolous to argue that Bush’s sentence was substantively
unreasonable.
We GRANT the motion to withdraw and DISMISS the appeal.

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